Services Agreement - Business and Trade Network of America Inc. and Cavion Technologies Inc.
BUSINESS AND TRADE NETWORK
OF
AMERICA, INC. AGREEMENT
FEBRUARY 24, 2000
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TABLE OF CONTENTS
PAGE
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1. Scope of Work..................................................................1
2. Relationship and Duties........................................................2
3. Exclusivity....................................................................2
4. Confidential Information.......................................................4
5. Rights in "Intellectual Property" and "Software"...............................4
5.1 Cavion Intellectual Property..........................................4
5.2 BATNET Intellectual Property..........................................5
5.3 Jointly Owned Intellectual Property...................................6
6. Protection of Proprietary Rights...............................................6
7. Copyright and Proprietary Notices..............................................6
8. Term...........................................................................6
9. Representations and Warranties Made By BATNET..................................7
10. Representations and Warranties Made by Cavion..................................8
11. Security Standards.............................................................9
12. Indemnification................................................................9
13. Waiver.........................................................................9
14. Force Majeure.................................................................10
15. Notices.......................................................................10
16. Limitation of Agreement.......................................................10
17. Right to Audit................................................................10
18. Assignment....................................................................11
19. Arbitration...................................................................11
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20. Titles and Headings...........................................................12
21. Exhibits......................................................................12
22. Severability..................................................................12
23. Counterparts..................................................................12
24. Entire Agreement..............................................................12
Exhibit A - BATNET Services
Exhibit B - CAVION Services
Exhibit C - Commissions/Fees--Revenue Split
Exhibit D - Marketing
Exhibit E - BATNET Business Associations
Exhibit F - Cavion Business Associations
Exhibit G - Examples of Cavion Third-Party Financial Service Providers
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BUSINESS AND TRADE NETWORK OF
AMERICA, INC. AGREEMENT
This Agreement is made and entered into as of February 24, 2000,
("Effective Date") by and between BUSINESS & TRADE NETWORK OF AMERICA, INC.
("BATNET"), a Delaware corporation, with principal offices located at 33 Wood
Avenue South, Iselin, New Jersey, 08830, and CAVION TECHNOLOGIES, INC.
("Cavion"), a Colorado corporation, with principal offices located at 7475 Dakin
Street, Denver Co 80221 ("Agreement").
WHEREAS, BATNET is an Internet based e-commerce corporation which engages
in the business of developing, creating, and customizing versions of its
Internet based marketplace known as the BATNET affinity marketplace (hereinafter
"BAM") to business, trade and like groups;
WHEREAS, Cavion engages in the business of developing, creating,
customizing and hosting of Credit Union e-commerce, secure connectivity, and
Internet based transactional banking software.
WHEREAS, Cavion desires to obtain the services of BATNET as more fully
described below, and BATNET agrees to provide services to Cavion on the terms
set forth in this Agreement.
WHEREAS, BATNET shall develop, customize, maintain, and manage, in
accordance with Cavion's instructions and subject to Cavion's approval, a secure
site within BAM for the Credit Unions who are eligible to participate in BAM
(hereinafter "Cavion Credit Unions").
WHEREAS, the BAM web pages shall be called from within a frame or other
like technologies together with other frames that have been branded by Cavion or
Cavion Credit Unions.
NOW, THEREFORE in consideration of the mutual covenants contained herein,
the parties hereby agree as follows:
1. SCOPE OF WORK
Cavion agrees to engage BATNET to develop, customize, maintain, and manage
an Internet-based affinity marketing and member-benefits program known as the
BATNET Affinity Marketplace ("BAM") for Member Emporium or each Cavion Credit
Union that is eligible to participate in a BAM. Each BAM shall consist of an
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Internet based affinity marketing and member benefit program and other services,
as set forth in Exhibits A (BATNET Services), Exhibit B (Cavion Services),
Exhibit C (Commissions/Fees -- Revenue Split), and Exhibit D (Marketing) (the
"Services") to enable the membership of Cavion Credit Unions ("Members") to
register Online or otherwise, review product information, and purchase
product(s) and/or service(s) from various merchants over the Internet. BATNET
represents warrants that the performance of the Services shall be accomplished
in compliance with all applicable laws and regulations and in accordance with
any terms and conditions set forth in this Agreement.
2. RELATIONSHIP AND DUTIES
BATNET is retained by Cavion solely for the purposes set forth herein.
Neither party shall not have the power to bind the other nor shall either party
make any such representation. BATNET's relationship to Cavion shall be that of
an independent contractor solely responsible for the manner and means by which
the duties hereunder are carried out. Neither party shall not be construed for
any purpose to be (i) an employee subject to the control and direction of the
other or (ii) an agent or partner of the other.
3. EXCLUSIVITY
(a) Each party hereby acknowledges and agrees that it shall not be the
exclusive provider of the Services contemplated hereunder to the other,
"Associations" (as defined below) or Credit Unions. Each party shall be free to
market, provide and sell, and to contract and otherwise arrange to market,
provide, and sell its services to third parties; and, accordingly Cavion may
contract with or otherwise engage another business providing e-commerce
marketplaces to the Credit Unions concurrently with the term of this agreement,
and BATNET shall be free to market BAM or other e-commerce services to others,
including, without limitations, other Credit Unions. Notwithstanding the
foregoing, nothing in this paragraph shall be construed as to allow either party
hereto to contract directly with either party's business "Associations." For
purposes of this paragraph Associations shall mean, in the case of BATNET,
Associations as set forth on Exhibit E, and in the case of Cavion and Credit
Unions as set forth on Exhibit F and Exhibit G. Furthermore, BATNET and Cavion
hereby acknowledge that both parties hereto have a business understanding that
neither party shall actively seek or engage third parties providing the same or
similar services as either party to this agreement, during the initial term and
subsequent renewal term under this agreement.
(b) During the Initial Term, any Renewal Period, Cavion shall notify BATNET
of any offer, proposal or solicitation to Cavion by any entity wishing to
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provide Services to Cavion similar to that provided by BATNET under this
Agreement ("a BATNET Competing Entity"), and shall notify BATNET of such offer,
proposal or solicitation to allow BATNET to match the same. BATNET shall have an
absolute right to match any such offer, proposal or solicitation (the "Match
Contract Terms") and Cavion shall execute an agreement with BATNET to provide
services pursuant to the Match Contract Terms. If BATNET executes and performs
its obligations under the agreement for the Match Contract Terms, Cavion may not
enter into an agreement with the BATNET Competing Entity.
(c) During the Initial Term and any Renewal Period, BATNET shall notify
Cavion of any offer, proposal or solicitation to BATNET by any entity wishing to
obtain services from BATNET similar to that provided to Cavion under this
Agreement (a "Cavion Competing Entity"), and shall notify Cavion of such offer,
proposal or solicitation to allow Cavion to match the same. Cavion shall have an
absolute right to match any such offer, proposal or solicitation (the "Match
Contract Terms") and BATNET shall execute an agreement with BATNET to provide
services pursuant to the Match Contract Terms. If Cavion executes and performs
its obligations under the agreement for the Match Contract Terms, BATNET may not
enter into an agreement with the Cavion Competing Entity.
(d) BATNET acknowledges that CAVION has relationships with certain
third-party merchants ("Cavion Merchants") that provide services or products
related to financial services or Internet access or generate consumer loans,
including but not limited to credit unions, credit union leagues, credit union
associations, corporate credit unions, internet service providers, auto brokers
and buying, services, credit bureaus, mortgage brokers, other mortgage issuers,
insurance companies, stock brokerage and investment companies. Any such
compensation arrangement with Cavion Merchants is not considered part of this
Agreement. Examples of such relationships are described more fully and attached
hereto as Exhibit G.
(e) Cavion, by entering into this Agreement with BATNET, will use
reasonable commercial efforts to endorse and recommend the BAM services to the
credit unions. Nevertheless, and notwithstanding the foregoing, both Parties to
this Agreement expressly acknowledge, understand and accept that each credit
union connected to Cavion's Network must agree to permit BATNET to serve its
members through Cavion's Network. Any decision by any credit union not to permit
BATNET to provide any services to its members shall be deemed to be outside the
control of either BATNET or Cavion and shall not operate to the detriment of
either BATNET or Cavion under any term or provision of this Agreement, each of
which shall remain in full force and effect and shall be enforceable by either
Party hereto.
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4. CONFIDENTIAL INFORMATION
(a) BATNET and Cavion may, during the term of this Agreement, disclose
certain confidential information to each other. For the purposes of this
Agreement, "Confidential Information" shall mean any information of either party
hereto whether or not developed by the other, including but not limited to,
pre-existing or new information which relates to all ideas, designs, methods,
discoveries, improvements, products or other results of consulting services,
trade secrets, product data and specifications, proprietary rights, business
affairs, product developments, customer information, member information, or
employee information. Confidential Information does not include any information
that:
(i) either party can prove was known prior to the date of this Agreement
and any other agreement between the parties hereto, without an
obligation to keep it confidential;
(ii) either party can prove was lawfully obtained from a third party
without any obligation of confidentiality;
(iii) is or becomes part of the public domain through no act or violation
of any obligation of either party; or
(iv) is required to be disclosed by court order or operation of law.
(b) The parties shall keep all Confidential Information in confidence and
shall not, at any time during or after the term of this Agreement, without the
other's prior written consent, disclose or otherwise make available, directly or
indirectly, any item of Confidential Information to anyone. The parties shall
use the Confidential Information only in connection with this Agreement and for
no other purpose.
5. RIGHTS IN "INTELLECTUAL PROPERTY" AND "SOFTWARE"
5.1 CAVION INTELLECTUAL PROPERTY
5.1.1 Cavion hereby grants BATNET a royalty free, non-exclusive,
non-transferable, limited license to use Cavion's name and any and all
logos, trademarks, service marks, and all other such images Cavion now or
hereafter claims ownership during the term of this agreement ("Cavion
Intellectual Property"), in connection with BATNET's creation, development,
advertising, marketing, promotion, and administration of BAM. BATNET's use
of Cavion's name, logo, trademark, service mark or the like, owned by
CAVION, shall be limited to the purposes described in this Agreement.
BATNET agrees that ownership of such name, logo, and trademark shall remain
with Cavion. Cavion Intellectual Property also includes any marketing
materials relating to
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the services provided under this Agreement, and the development or creation
of any intellectual property paid for or developed solely by Cavion.
5.1.2 All right, title and interest in and to any computer code (both
source and object) including, but not limited to, all interfaces,
navigational devices, menus, menu structures or arrangements, help and
other operational instructions and the literal and non-literal expressions
of ideas that operate, cause, create, direct, manipulate, access or
otherwise affect the Cavion Web site and Cavion Intellectual Property
developed by Cavion or by a third party other than BATNET on behalf of
Cavion ("Cavion Software") including without limitation, any copyrights,
patents, trade secrets and other intellectual or industrial property rights
therein is and shall be owned exclusively by Cavion.
5.2 BATNET INTELLECTUAL PROPERTY
5.2.1 BATNET hereby grants Cavion a royalty free, non-exclusive,
non-transferable, limited license to use BATNET's name and any and all
logos, trademarks, service marks, and all other such images BATNET now or
hereafter claims ownership during the term of this agreement ("BATNET
Intellectual Property"), in connection with the services provided by BATNET
under this Agreement. Cavion's use of BATNET's name, logo, trademark,
service mark or the like, owned by BATNET, shall be limited to the purposes
described in this Agreement. Cavion agrees that ownership of such name,
logo, and trademark shall remain with BATNET. BATNET Intellectual Property
also includes any intellectual property paid for or developed by BATNET.
5.2.2 All right, title and interest in and to any computer code (both
source and object) including, but not limited to, all interfaces,
navigational devices, menus, menu structures or arrangements, help and
other operational instructions and the literal and non-literal expressions
of ideas that operate, cause, create, direct, manipulate, access or
otherwise affect the BATNET Services or the BATNET Intellectual Property
developed by BATNET (except jointly conceived or created intellectual
property, which shall be jointly owned as provided in Section 5.3) or by a
third party other than Cavion on behalf of BATNET ("BATNET Software")
including without limitation, any copyrights, patents, trade secrets and
other intellectual or industrial property rights therein is and shall be
owned exclusively by BATNET.
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5.3 JOINTLY OWNED INTELLECTUAL PROPERTY
Except as otherwise provided in this Agreement, any and all intellectual
property jointly conceived or created under the performance of this Agreement
shall be co-owned by both Cavion and BATNET.
6. PROTECTION OF PROPRIETARY RIGHTS
(a) Neither party shall assist or permit others to, de-compile, decrypt,
disassemble, or otherwise reverse engineer the Cavion Software or the BATNET
Software to create or derive the source code thereof from the object code
thereof or from any other information.
(b) Each party shall use its best efforts to ensure that its employees,
independent contractor agents, sales and distribution agents and other acting in
concert with it or on its behalf are prohibited from taking any action otherwise
prohibited to each party hereunder and to promptly notify the other party of the
circumstances surrounding any such use or possession of the other parties'
"Software" (as defined in Section 5) or any part thereof.
7. COPYRIGHT AND PROPRIETARY NOTICES
(a) BATNET shall place on all services and associated documentation (and
any parts thereof) the copyright notices, confidentiality legends, and other
labels (singularly or collective "Proprietary Rights Notice") in the exact
form(s) reasonably specified in written notice(s) and as requested by Cavion.
BATNET shall not remove or alter any copyright or other Proprietary Rights
Notice required by Cavion.
(b) If Cavion is contacted by a third party, excluding Cavion Associations
(as defined in Section 3(a) of the Agreement) and Cavion competitors, Cavion
shall verify that the BAM is "powered by" BATNET. At Cavion's sole discretion,
Cavion may place a propriety BATNET notice on the Cavion BAM.
(c) Neither party shall use the name or trademark of the other in
connection with any solicitation or promotion without prior written consent.
8. TERM
(a) This Agreement shall remain in effect for the period commencing with
the Effective Date and terminating with the date that is three (3) years after
the Effective Date (the "Initial Term"). Thereafter, this Agreement shall be
automatically renewed for a period of one (1) year (individually, a "Renewal
Period") without the requirement of further notice. Either party may terminate
this Agreement upon
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expiration of the Initial Term or any Renewal Term by delivering written notice
of such termination at least ninety (90) days prior to the expiration of the
Initial Term or the then-current Renewal Period, as the case may be, in which
event the Agreement shall automatically terminate at the end of the Initial Term
or such Renewal Period. In addition, either party may terminate this Agreement
upon a material breach of this Agreement by the other party that has not been
cured within 60 days of such breach. In the event that either party terminates
this Agreement, Cavion and BATNET shall be entitled to receive any and all
unpaid commissions and fees due up to the date of termination. In no event,
however, will BATNET be obligated to refund to Cavion any monies paid.
(b) Upon termination of this Agreement for any reason:
(i) If requested by BATNET, Cavion shall immediately return any and
all BATNET materials (including without limitation the designs,
scripts, storyboards, masters and any and all other materials
relating to the BATNET Software) delivered by BATNET hereunder
and all copies of the same, and certify by sworn statement of one
of its officers that all such materials and copies have been
delivered to BATNET; and
(ii) If requested by Cavion, BATNET shall immediately return any and
all Cavion materials (including without limitation the designs,
scripts, storyboards, masters and any and all other materials
relating to the Cavion Software) delivered by Cavion hereunder
and all copies of the same, and certify by sworn statement of one
of its officers that all such materials and copies have been
delivered to Cavion.
9. REPRESENTATIONS AND WARRANTIES MADE BY BATNET
(a) BATNET REPRESENTS AND WARRANTS TO CAVION THAT THE SERVICES PROVIDED
SHALL CONFORM TO EXHIBIT A. BATNET DOES NOT WARRANT AGAINST FAILURE OF
PERFORMANCE DUE TO FAILURE OR DISRUPTION OF THE INTERNET AND/OR CAVION's WEBSITE
SERVER OR CONNECTIVITY, FAILURE OF CAVION's COMPUTER HARDWARE OR SOFTWARE,
AND/OR THIRD PARTY SERVICES UNDER CAVION's CONTROL. THE FOREGOING WARRANTY IS
THE ONLY WARRANTY MADE WITH RESPECT TO SERVICES PROVIDED UNDER THIS AGREEMENT
AND IS A LIMITED WARRANTY. BATNET EXPRESSLY DISCLAIMS ANY AND ALL OTHER
WARRANTIES EXPRESS OR IMPLIED. THE LIABILITY OF BATNET FOR ANY REASON AND UPON
ANY CAUSE OF
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ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID, IN THE SIX (6)
MONTH PERIOD PRIOR TO THE CLAIM ARISING, TO BATNET UNDER THIS AGREEMENT. IN NO
EVENT SHALL BATNET BE LIABLE TO CAVION OR ANY THIRD PARTY FOR ANY DIRECT,
CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS OR OTHER ECONOMIC LOSS (WHETHER ARISING FROM BREACH OF
CONTRACT, TORT, STRICT LIABILITY) EVEN IF BATNET HAS BEEN APPRISED OF THE
LIKELIHOOD OF SUCH DAMAGES OCCURRING, LIMITATIONS OF LIABILITY REFLECTS THE
ALLOCATION OF RISK BETWEEN THE PARTIES. LIMITATIONS REFLECTED IN THIS SECTION
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND APPLY EVEN IF ANY LIMITED
REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE.
(b) BATNET represents and warrants to Cavion that:
(i) BATNET has the full power and authority to enter into and fulfill
the terms of this Agreement and to make the grant of rights to
Cavion contained herein;
(ii) BATNET is the owner or has rights to use and sublicense the
BATNET Intellectual Property and the BATNET Software;
(iii) to BATNET's knowledge, no element of the BATNET Software
provided by BATNET violates or infringes any copyright, patent,
trademark, or trade secret of any third party; and
(iv) BATNET has not previously assigned, pledged or otherwise
encumbered any rights in the BATNET Intellectual Property or the
BATNET Software in a manner that conflicts with the rights
granted herein, and BATNET shall not assume any obligations or
restrictions which would in any way interfere with or be
inconsistent with this Agreement.
10. REPRESENTATIONS AND WARRANTIES MADE BY CAVION
(a) Cavion represents and warrants that:
(i) Cavion has the full power and authority to enter into and fulfill
the terms of this Agreement and to make the grant of rights to
BATNET contained herein with respect to the INTELLECTUAL
PROPERTY;
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(ii) Cavion is the owner, or has rights to use and sublicense, the
Cavion Intellectual Property and the Cavion Software;
(iii) to Cavion's knowledge, no element of the Cavion Software
provided by Cavion violates or infringes any copyright, patent,
trademark, or trade secret of any third party; and
(iv) Cavion has not previously assigned, pledged or otherwise
encumbered any rights in the Cavion Intellectual Property or the
Cavion Software in a manner that conflicts with the rights
granted BATNET herein, and Cavion shall not assume any
obligations or restrictions which would in any way interfere with
or be inconsistent with this Agreement.
(v) Cavion has obtained or will obtain any and all rights, licenses,
clearances, releases or other permissions necessary from third
party credit unions to use their name, logo or any other
intellectual property in connection with the BAM or any other use
contemplated under this agreement. Cavion has obtained the right
to grant BATNET approval for inclusion of any third party credit
union in the BAM.
11. SECURITY STANDARDS
Cavion and BATNET shall require Cavion's Members using Cavion's BAM to
agree to follow certain security procedures including the use of passwords for
access to the Cavion's BAM site, which the parties agree to make available as a
link from the entry page of the Cavion's BAM. To the extent that either party
wishes to revise such security procedures during the term of this Agreement,
such revisions shall be agreed upon in writing by the parties.
12. INDEMNIFICATION
BATNET and Cavion shall indemnify, defend and hold harmless the other
party, its directors, officers, employees and agents with respect to any claim,
demand, cause of action, debt, or liability, including reasonable attorneys'
fees, to the extent that it is based upon a claim, that if true, would
constitute a breach of any of the indemnifying party's representations or
warranties hereunder.
13. WAIVER
The waiver by either party or any breach or failure to enforce any of the
terms or conditions of this Agreement at any time shall not in any way affect,
limit or waive
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either party's rights thereafter to enforce and compel strict compliance with
every term and condition of this Agreement.
14. FORCE MAJEURE
Neither party shall be liable for any loss or delay resulting from any
force majeure event, including acts of God, fire, natural disaster, labor
stoppage, war or military hostilities, disruption of the Internet, or inability
of carriers to make scheduled deliveries, and any payment or delivery date shall
be extended to the extent of any delay resulting from any force majeure event.
15. NOTICES
Any notice, request, demand, waiver, approval or other communication which
is required or permitted to be given hereunder shall be in writing and shall be
deemed if delivered personally or sent by telegram or telecopy (with
transmission confirmed) or by certified or registered mail, return receipts
required with postage prepaid, or by Federal Express or an equivalent overnight
delivery service, addressed to the parties at their respective addresses as
either party may designate in writing to the other. Such notice, request,
demand, waiver, consent, approval or other communication shall be deemed to have
been given as of the date so delivered, telegraphed, or telecopied, or on the
fifth day after deposit in the United States mail or on the second day after
deposit with Federal Express or an equivalent overnight delivery service.
16. LIMITATION OF AGREEMENT
The relationship of Cavion and BATNET hereunder is limited to the
respective rights and obligations of the parties specifically provided herein.
Notwithstanding any provision of this Agreement to the contrary, nothing herein
shall be construed to create a partnership between the parties, to authorize
either party to act as agent for the other, to permit either party to undertake
any agreement for the other, or to use the name or identifying mark of the
other, all except as it is specifically provided herein.
17. RIGHT TO AUDIT
During the Term and for three years thereafter, BATNET will keep and
maintain accurate accounts and records regarding the its services hereunder.
Upon Cavion's request, but no more than two (2) times per annum, BATNET shall
provide access to such records for examination, reproduction, and audit by
Cavion or its representatives. If any such audit discloses any understatement of
the Fees due, BATNET will immediately pay to Cavion any deficiency, plus
interest at the rate of one and one half percent (1.5%) per month or the maximum
rate as permitted under
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applicable usury law, whichever is less. If the deficiency for any audit period
is in excess of ten percent (10%) of the Fees actually paid for such audit
period, BATNET shall reimburse Cavion for all reasonable costs incurred to
conduct the audit.
18. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of BATNET and Cavion. Neither party shall assign any
rights nor obligations under this Agreement without the express written
authorization of the other party, except that (i) the sale of substantially all
of the assets of either, including but not limited to the private or public sale
of securities; the acquisition by or merger into another company of either; or
(ii) an assignment to an "Affiliate" or subsidiary shall not be deemed an
assignment which requires the other's consent, provided prompt notice of any
such sale, acquisition or merger shall be given. For purposes of this Section
18, an "Affiliate" means an entity that directly or indirectly, controls, is
controlled by, or is under common control with either BATNET or Cavion
(whichever is applicable).
19. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in the State of the party
against whom such claim is raised, by an arbitrator/mediator with specific
expertise in Internet and electronic communications matters, and in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
then in effect, and judgment on the award rendered by the arbitrators) may be
entered in any court having jurisdiction thereof.
20. GOVERNING LAW
This agreement shall be governed by and construed in accordance with the
laws of the State in which the party against whom any claim, controversy or suit
is brought resides (the "Governing State"), without giving effect to its
principles or conflicts of laws to the extent such principles or rules would
require or permit the application of the laws of another jurisdiction. Amy
dispute arising out of or in connection with this agreement shall be subject to
the exclusive jurisdiction of the courts of the Governing State or of the United
States District Court of the same. Any process in any action or proceeding
arising out of or in connection with this agreement may, among other methods, be
served by delivering or mailing the same by registered or certified mail,
directed to the other party at the address first written above. Any such
delivery or mail service shall be deemed to have the same effect as personal
service within the State where the parties reside.
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21. TITLES AND HEADINGS
Titles and headings to articles, sections, or paragraphs in this Agreement
are inserted for convenience of reference only and are not intended to affect
the interpretation or construction of this Agreement.
22. EXHIBITS
The attached exhibits shall be construed as integral part of this
Agreement.
23. SEVERABILITY
The provisions of this Agreement shall be severable, and if any provision
of this Agreement is held to be invalid or unenforceable, it shall be construed
to have the broadest interpretation, which would render it valid and
enforceable.
24. COUNTERPARTS
This Agreement may be executed in one or more counterpart copies, each of
which shall be deemed an original and all of which shall together be deemed to
constitute one agreement.
25. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and any and all prior or contemporaneous
agreements not expressly contained in this Agreement are superseded hereby. This
Agreement may be amended only by a written instrument executed by all of the
parties to it.
IN WITNESS WHEREOF
CAVION TECHNOLOGIES, INC., a Colorado corporation
By: /s/ David J. Selina
------------------------------------------
Name: David J. Selina
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Title: President/CEO
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BUSINESS & TRADE NETWORK OF AMERICA, INC., a
Delaware corporation
By: /s/ Christopher B. Ferguson
------------------------------------------
Name: Christopher B. Ferguson
----------------------------------------
Title: President/CEO
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EXHIBIT A
BATNET SERVICES
BATNET shall provide the following services in accordance with its existing
policies and pursuant to the terms and conditions of this Agreement:
BATNET AFFINITY MARKETPLACE ("BAM"): BATNET will develop, customize,
maintain, and manage an Internet affinity and member-benefit program known as
the BATNET Affinity Marketplace ("BAM") to enable the membership of Cavion and
Cavion Credit Unions ("Members) to register, review product information, and
purchase product(s) and/or service(s) from merchants over the Internet. BATNET
shall create and brand said program under the name of Member Emporium and/or the
name of the specific Cavion Credit Unions as directed by Cavion. BATNET will
agree to develop a BAM for a specific credit union at prices mutually agreed to
by Cavion and BATNET.
BAM OPERATIONS: The BAM will be provided through a frame or other like
technology on Cavion's existing Web-site and the websites of the Cavion Credit
Unions providing Members with access to the BAM through this link. The product
and merchant information areas of BAM shall reside on web servers maintained by
BATNET. The registration areas shall reside on web servers maintained by Cavion,
unless otherwise mutually agreed to by both parties. Product purchasing shall be
accomplished on secure merchant Web sites that are linked to the BAM. Cavion
will provide all Member Emporium and Credit Union co-branding other than is
provided on the BAM.
CUSTOMIZATION OF BAM REGISTRATION AND PRODUCT INFORMATION AREAS: BATNET
will customize the BAM Registration and Product Information areas by adding the
logo(s) and color(s) used in Cavion's Web site, and will modify such
customization from time to time if requested by Cavion. If requested by Cavion,
BATNET will redesign the logo(s) and color(s) used in Cavion's and/or Cavion
Credit Unions' Web site. BATNET will include navigation buttons in these areas
to ensure that Cavion and/or Cavion Credit Union Members may easily return to
Cavion's and/or Cavion Credit Unions' Web site by clicking on the navigation
buttons unless otherwise mutually agreed to by both parties.
OTHER BAM SERVICES: If requested, BATNET will provide other services
including, but not limited to, private label stores, e-mail appending, bulletin
board or chat service, vendor rating, frequent buyer programs, enhanced e-mail
and classified
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advertising ("Other BAM Services"). Prior to providing Other BAM Services,
BATNET and Cavion shall agree to a fee schedule for the same. [We put the
following back into section 3, which deals with exclusivity.]
BAM MERCHANTS, CAVION MERCHANTS, AND OTHER MERCHANTS:
1. BAM MERCHANTS
Prior to linking BAM to Cavion's and the Cavion Credit Unions' existing
Websites, BATNET shall provide Cavion and/or the Credit Unions with a list
identifying the names of the service providers, retailers and/or merchants that
are participating in BAM ("BAM Merchants"). In addition, BATNET has the
exclusive right under this agreement, subject to the restrictions as set forth
in paragraph three (3)(d) of the within agreement, to negotiate and contract
with future merchants to be included in Cavion's and/or Cavion Credit Unions'
BAM excluding those described in Exhibit A Section 2, 3, Exhibits F and Exhibit
G . Should Cavion be approached by a merchant who wishes to be included in the
Cavion BAM, Cavion shall direct such merchant to BATNET for consideration;
Cavion shall not contract with any prospective merchants for inclusion in the
BAM without the express written consent of BATNET. Notwithstanding the
foregoing, no BAM Merchant will be placed in Cavion's and/or Cavion Credit
Unions' BAM without prior written approval by Cavion. Cavion and/or Cavion
Credit Unions' have the absolute right to reject any BAM Merchant for any
reason. Cavion shall accept or reject merchants presented to Cavion within ten
(10) days of such presentation. After Cavion has accepted a merchant Cavion may
later reject such merchant by giving BATNET written notice, and BATNET shall
remove such merchant from the Cavion's BAM or the Credit Unions' BAM within 15
days after receiving such written notice from Cavion.
2. CAVION MERCHANTS
BATNET acknowledges that CAVION has relationships or will develop
relationships with Cavion Merchants (as defined in Section 3(d) of the
Agreement), which may provide compensation to Cavion and/or Credit Unions. Any
such compensation arrangement with these Cavion Merchants is not considered part
of this Agreement and is not subject to the Fee structure set forth in Exhibit
C. All such relationships are described in Exhibit G. If BATNET is required to
spend more than two (2) hours of implementation planning and/or computer
programming time to make any Cavion Merchant's Web-site ready for inclusion in
Cavion's and/or Cavion Credit Unions' BAM ("Additional Prior Merchants Work"),
BATNET shall be compensated by Cavion for the additional Cavion Merchants Work
at the standard rate set forth in Exhibit C. Moreover, BATNET acknowledges and
agrees to prohibit all
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advertising, promotion, or links to all Cavion Merchants, other than those
authorized by CAVION.
3. OTHER MERCHANTS
BATNET shall include in the BAM each and any service provider, retailer
and/or merchant under contract with Cavion or any Cavion Credit Union that
Cavion requests to be included in the BAM. Other Merchants must have secure
electronic commerce sites and agree to link their sites to BAM in a manner that
is comparable with other merchants provided by BATNET. If BATNET is required to
spend more than two (2) hours of computer programming time to make any Other
Merchant's Web site ready for inclusion in Cavion's and/or Cavion Credit Unions'
BAM ("Additional Other Merchants Work"), BATNET shall be compensated by Cavion
for the Additional Other Merchants Work at the standard rate set forth in
Exhibit C. BATNET shall submit to Cavion an estimate of any Additional Other
Merchants Work that may be required, and shall receive from Cavion prior written
approval before undertaking any such Additional Other Merchants Work. Other
Merchants must agree to accept information from the BAM onto their Web sites
including, but not limited to, information to provide for the accounting of
commissions and discounts, if any. Any and all fees payable to BATNET for
inclusion of Other merchants in the BAM, shall be negotiated and agreed prior to
such merchant inclusion in the same.
4. AFFINITY COMMISSIONS AND DISCOUNTS
BATNET shall negotiate and contract with all BAM Merchants and Other
Merchants with a relationship with Cavion interested in participating in the
BAM. Contracts between BATNET and BAM Merchants shall disclose discounts or
other member benefits available to Cavion's and/or Cavion Credit Unions'
Members. BATNET shall disclose gross commissions, sponsorships placement fees,
advertising, or any other fees ("Revenue") to be paid to BATNET for any
product(s) and/or service(s) purchased by Cavion's and/or Cavion Credit Union
Members through Cavion's and/or Cavion Credit Unions' BAMS. BATNET and Cavion
shall divide Revenue as set forth in Exhibit C.
5. MEMBER SUPPORT/REPORTING/TRAINING
5.1 MEMBER SUPPORT
BATNET will develop appropriate support programs for Cavion and Cavion's
and/or Cavion Credit Unions' Members that register for the BAM, including
customer service online and telephone call-in functions as appropriate. BATNET
will use commercially reasonable efforts to provide a dedicated toll-free number
that will be
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identified as "Member Emporium" when answered by a BATNET customer service
representative. BATNET will keep accurate records on customer support incidents
and provide Cavion access to such, upon request. In addition, BATNET shall
provide 44 severity level customer support" 24x7 to Members, Cavion Employees or
their agents. Severity level customer support shall be considered necessary for
any failure of BAM to function properly for a period of more than 12 consecutive
hours.
5.2 REPORTING
BATNET will develop a private and secure Web-based administration area for
the BAM which shall allow Cavion to track its financial (e.g. commissions and/or
fees generated by Cavion's BAM) and non-financial (e.g. number of Cavion
registered BAM members, web trends, number of hits per vendor, login file) BAM
activities Access to such area shall be limited to Cavion and BATNET.
5.3 MEMBER INFORMATION
(a) BATNET and Cavion will mutually cooperate to transfer relevant
information in a secure manner to facilitate Member Registration,
Targeted Ad Serving, and Member Profiling.
(b) CAVION will provide BATNET access to any opt-out requests received
from members by sending BATNET a periodic file listing all requests or
upon request by BATNET. Any opt-out request directly or indirectly
received from a Member by BATNET will be promptly forward to Cavion
for inclusion in the Opt-out database.
5.4 TRAINING
If requested, BATNET will provide normal, reasonable start-up training,
assistance to Cavion's staff relating to the proper use and operation of
Cavion's BAM. BATNET shall be compensated at its standard rate set forth in
Exhibit C for any additional hours of staff training, exceeding two (2) hours
that may be requested by Cavion.
6. INTERNET AND MEMBER PRIVACY
(a) BATNET and Cavion shall adhere to The Direct Marketing Association's
Inc.'s Marketing Online Privacy Principles ("Marketing Online Principles"), and
any other privacy practices as required by operation of law, and shall post such
notices regarding the Marketing Online Principles in the appropriate area(s)
within Cavion's and/or Cavion Credit Unions' BAM. BATNET agrees to adhere to the
privacy polices set forth by Member Emporium, as posted to the Member
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Emporium Web Site available at http:www.memberemporium.com/privPolicy, and is
subject to change at Cavion's discretion on ten (10) days written notification
to BATNET.
(b) Without the written approval of Cavion, BATNET shall not disclose,
rent, sell, trade, provide or transfer to any third party, either in whole or in
part, the individual identity or any information relating to the individual
(e.g., name, address, phone number, credit card number, account number, email
address, etc.) of the Members who register or visit a BAM, nor a list of
product(s) and/or service(s) purchased, or other such information related to
Cavion, Member Emporium or Credit Union Members. Nothing in this provision shall
be construed as prohibiting BATNET from using any of the aforementioned
information for internal analysis in order to best effectuate marketing efforts
for Cavion Credit Union Members.
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EXHIBIT B
CAVION SERVICES
B.1. CREDIT UNION CO-BRANDING AD SERVING
Cavion will serve all credit union co-branding logos images, and other
images as required by the sponsoring credit unions, for each individual Credit
Union by serving the images using a frameset and ad serving capability, or
similar technology as determined by CAVION. In the event that BATNET will call
an ad tag of a page served by BATNET, CAVION will provide BATNET with the
requisite ad tags need to generate the image. All advertising and the placement
of all advertising on the BAM or other Websites controlled by Cavion must be
approved by Cavion.
B.2. BAM AD SERVING
Cavion will provide BATNET with an Ad Serving Service Bureau capability to
serve ad banners, or other images for credit unions and Member Emporium BAM
Merchants served on BAM paces and/or on the Cavion served co-branded framesets.
In the event that BATNET will call an ad tag on a pace served by BATNET, CAVION
will provide BATNET with the requisite ad tags need to generate the image. Ad
Serving prices assume an average individual ad size of 12 KB. If BATNET's
average individual ad size based upon a full calendar month exceeds 12 KB (not
including any ads provided by Engage), the BATNET's monthly fee for such
calendar month shall be increased by a percentage equal to the percentage
increase of the average file size above 12KB. In the event that either party
develops an alternative ad serving capability, both parties shall negotiate in
good faith regarding the use of the alternative ad service.
B.3. SEARCH ENGINE PLACEMENT SERVICE BUREAU
Should BATNET elect to use such service, (i) Cavion will provide BATNET
with a Search Engine Placement Service Bureau capability to manage search engine
submission campaigns for BAM merchants, and other BAM sponsor that are not
competitive with Member Emporium or Cavion, and (ii) BATNET shall have the right
of first refusal to market the Search Engine Placement Service Bureau capability
to BATNET merchants and Associations. The Search Engine Placement Service Bureau
is a server-based service that is a web-site traffic generation and control
technology that enables customers to control spider based search engine web site
indexing for web sites and related product databases. In the event that BATNET
should elect not to market such services, nothing would preclude Cavion from
marketing such services
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directly to BAM Merchants and Associations; provided, however that Cavion agrees
not to make any representations that the Search Engine Placement Service Bureau
is being promoted or marketed by BATNET.
B.4. CREDIT UNION SALES STAFF AND SUPPORT
Cavion will staff a sales force to recruit new BAM participating Credit
Unions. In addition, Cavion will staff an account management team to work with
individual credit unions to setup their relationship with Cavion which includes
but is not limited to: 1) training credit union staff, 2) schedule and
coordinate advertising and promotions to credit union members, 3) develop,
install and maintain the co-branded frameset for individual credit unions, 4)
coordinate the placement of BAM URLs, hyperlinks, and Member Emporium BAM logos
and/or Ad Banners on the Credit Union control websites and internet banking
applications, and 5) marketing activities as set forth herein.
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EXHIBIT C
COMMISSIONS/FEES--REVENUE SPLIt
C.1. PAYMENTS OF COMMISSIONS/FEES
C.1.1 BATNET will track purchases made by Cavion Credit Union BAM Members
on the BAM Merchant and/or Prior Merchant Web-sites and will collect any and all
Revenue due Cavion from BAM Merchants;
C.1.2 BATNET will also collect any and all "Advertising Revenue" which
shall include, but not be limited to, advertising fees, fees for leads
generated, position payments, exclusivity payments, sponsorships, and other
types of fees for Permitted Advertisers. For purposes of this Agreement,
"Permitted Advertising" includes any advertiser or categories of advertisers
that Cavion has previously approved in writing. BATNET will establish a rate
card for such Advertising Revenue for Cavion to use in the event it sells any
advertising. CAVION will make available to BATNET, access to CAVION's Engage Ad
Bureau service at cost. Such costs are subject to change per the Cavion's
agreement with Engage. All Ads will be served from Cavion using its Ad Bureau
Service. For the calculation below all fees shall be net of commissions, if any,
paid by BATNET to outside advertising agencies, other such firms, or BATNET for
the placement of advertising in Cavion's BAM. Should BATNET place such
advertising in Cavion's BAM, BATNET shall be entitled to receive an agency
commission in the amount of no less than fifteen percent (15%) of gross revenue
generated by and through any and all advertising programs during the first year.
Should Cavion place such advertising in Cavion's BAM, Cavion shall be entitled
to receive an agency commission in the amount of no less than fifteen percent
(15%) of Cross revenue generated by and through any and all advertising programs
during the first year. Commissions in subsequent years will be adjusted annually
as mutually agreed. All other revenue ("net revenue") derived from the
advertising programs, shall be split by and between BATNET and Cavion as set
forth below.
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ADVERTISING REVENUE SPLIT YEAR 1 YEAR 2 YEAR 3
-----------------------------------------------------------------------------------------------------------
Ad Serving Cost CPM See table below TBD TBD
-----------------------------------------------------------------------------------------------------------
Advertising Revenue Split 50/50 50/50 50/50
-----------------------------------------------------------------------------------------------------------
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AD SERVING COST CPM (PAID TO CAVION)
-----------------------------------------------------------------------------
0 - 999,999 + $1.50 CPM*
--------------------------------------------------------------- -------------
1,000,000 - 4,999,999 + $1.25 CPM
--------------------------------------------------------------- -------------
5,000,000 - 9,999,999 + $1.00 CPM
--------------------------------------------------------------- -------------
10,000,000 - 19,999,999 + $0.85 CPM
--------------------------------------------------------------- -------------
20,000,000 - 29,999,999 + $0.55 CPM
--------------------------------------------------------------- -------------
30,000,000 - 39,999,999 + $0.45 CPM
--------------------------------------------------------------- -------------
40,000,000 - 49,999,999 + $0.30 CPM
--------------------------------------------------------------- -------------
50,000,000 - and higher + $0.25 CPM
--------------------------------------------------------------- -------------
C.1.3 BATNET shall be responsible for collecting any and all click fees,
commissions, fees for leads Generated, other affiliate fees paid by BAM
Merchants ("Commission Revenue") to be allocated amongst each party. For
"Discount Merchant" (which is defined as those merchants that permit the BAM to
pay a portion of the commission revenue back to the Member as a discount) sales
BATNET will use reasonable efforts to allocate 60% of the Commission Revenue as
a discount paid to the Credit Union Member. The remaining Commission Revenue
will be split as shown below in the following table for Discount Merchants. For
"Affiliate Merchant" (which is any merchant other than a Discount Merchant)
sales, BATNET will use reasonable efforts to allocate up to 60% of the
Commission Revenue as a marketing and administrative expense reimbursement paid
to Credit Union Participants and/or to fund a Frequent Buyer Program. The
remaining Commission Revenue earned will be split as shown below in the
following table for Affiliate Merchants. The parties hereto understand and agree
that the foregoing discount allocation may not be possible for some merchants
and, therefore, it is in Cavion's sole discretion whether or not to include such
merchants who cannot provide such discount in the Cavion BAM.
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AVERAGE COMMISSION
COMMISSION REVENUE PAID BY MERCHANTS 1 2 3
---------------------------------------------------------------------------------------------------------
Discount 5% Comm. 80% Batnet 60% Batnet 50/50
Merchants 10% Member 20% Cavion 40% Cavion
---------------------------------------------------------------------------------------------------------
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Affiliate Merchant With No 10-15% 50/50 50/50 50/50
Payments to CU's or Comm.
Frequent Buyer Program
---------------------------------------------------------------------------------------------------------
Affiliate Merchant With 5% Comm. 80% Batnet 60% Batnet 50/50
Payments to CU or Frequent 10% CU 20% Cavion 40% Cavion
Buyer Program
---------------------------------------------------------------------------------------------------------
C.1.4 BATNET will also collect any and all "Search Engine Promotion
Revenue" for Merchants or Associations sold by BATNET which shall include, but
not be limited to, click fees, fees for leads generated, exclusivity payments,
and other types of fees for Permitted Advertisers. CAVION will establish a rate
card for such Advertising Revenue for BATNET to use in the event it sells any
Search Engine Placements. CAVION will make available to BATNET, access to
CAVION's Search Engine Place Bureau service at cost. All Search Engine
Placements will be served from Cavion using its Search Engine Promotion Service
Bureau. For the calculation below all fees shall be net of commissions, if any,
paid by BATNET to outside advertising agencies or other such firms for the
placement of advertising in Cavion's BAM;
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SEARCH ENGINE PLACEMENT
REVENUE SPLIT YEAR 1 YEAR 2 YEAR 3
-----------------------------------------------------------------------------------------------------------
Search Engine Placement Cost TBD TBD TBD
(Paid to Cavion)
-----------------------------------------------------------------------------------------------------------
Revenue Split 50/50 50/50 50/50
-----------------------------------------------------------------------------------------------------------
C.2. PAYMENT TERMS AND TIMING. BATNET shall make payment of all fees and
commissions under Section C.1 to Cavion within 15 days after receipt from
Merchant. Any amount not paid when due will be subject to finance charges at the
rate of one and one-half percent (1.5%) per month or the maximum rate permitted
by applicable usury law, whichever is less, determined and compounded on a daily
basis from the date due until the date paid.
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C.3 SUPPORT FEES
C.3.1 BATNET's standard rate for computer programming is $125 per hour,
which may be adjusted one year after the Effective Date of this Agreement to a
mutually agreed upon rate.
C.3.2 CAVION's standard rate for computer programming is $125 per hour,
which may be adjusted one year after the Effective Date of this Agreement to a
mutually agreed upon rate.
C.3.3 Payment of support fees shall be made within 30 days after receipt of
invoice. Any amount not paid when due will be subject to finance charges at the
rate of one and one-half percent (1.5%) per month or the maximum rate permitted
by applicable usury law, whichever is less, determined and compounded on a daily
basis from the date due until the date paid.
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EXHIBIT D
MARKETING
D.1. GENERAL
BATNET and Cavion agree to jointly develop, establish and administer the
marketing of Cavion BAM. BATNET may conduct marketing activities with respect to
a particular Credit Union only if BATNET has received prior written
authorization from either Cavion or the particular Credit Union.
D.2. ADVERTISING/PROMOTIONS/RESTRICTIONS
D.2.1 MERCHANT ADVERTISING
BATNET will use its reasonable best efforts to sell Permitted Advertising
onto the Web paces of Cavion's BAM and other Cavion controlled Web sites. No
advertiser shall be placed on such pages without the prior approval of Cavion,
which approval shall not be unreasonably withheld or delayed.
D.2.2 MEMBER ADVERTISING/PROMOTIONS
D.2.2.a. Cavion shall use reasonable commercial efforts to facilitate
and coordinate with participating Credit Unions the promotion of the BAM to
Credit Union Members and Employees using one or more methods, including but not
limited to statement messages, newsletters, statement inserts, email programs,
and in-lobby displays at participating Credit Unions.
D.2.2.b. BATNET shall use reasonable commercial efforts to provide
marketing materials and promotions to Cavion in order for Cavion to promote the
BAM to Credit Union Members. Such activities include and are not limited to
email, sweepstakes, statement suffers, and direct mail promotions. In addition,
BATNET will provide creative material for ad banners, icons, logos, Newsletter
articles, statement messages, in-lobby displays or other promotional material.
Any costs for materials will be paid for by BATNET, unless otherwise agreed to
in writing. Cavion must approve in writing all such marketing and promotional
actions by BATNET, which approval shall not be unreasonably withheld.
D.2.2.c. Cavion will use its reasonable commercial efforts promote
BAM through Credit Union's using one or more methods, including but not limited
to ad banners, URL links, and/or icons placed on participating Credit Union Web
Sites,
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Internet banking applications, and other Credit Union Control controlled
advertising space, which Cavion has obtained rights.
D.2.2.d. Cavion may use thirty percent (30%) of the BAM advertising
space for which Cavion may place Credit Union and Credit Union Prior Merchants
only advertising in its BAM for the promotion of Credit Union products and
services. Any unused inventory will be allocated to Cavion.
D.2.2.e. Cavion may use an additional twenty percent (20%) of the BAM
advertising space for which Cavion may place Cavion Merchant and/or Member
Emporium Ads-in its BAM for the promotion of products and services. Any unused
inventory will be allocated to BATNET, unless otherwise agreed.
D.2.2.f. BATNET may use the remaining fifty percent (50%) of the BAM
advertising space for which BATNET may place BAM Merchant. Ads (but only if it
is Permitted Advertising) in its BAM for the promotion of products and services.
Any unused inventory will be allocated to Cavion, unless other wise agreed.
D.2.2.g. BATNET may use twenty percent (20%) of the "Member Emporium
Personal Start Page" advertising space for which BATNET may place BAM Merchant
Ads only Permitted Advertising for the promotion BAM products and services. In
addition, BATNET may request to use up to an addition fifty percent (50%) for
the promotion BAM products and services. Such advertising is limited to
Permitted Advertising, and must be approved by Cavion.
D.2.2.h. BATNET may use a Shopping Content Area ("SCA") on the Member
Emporium Personal Start Page to feature sponsored merchants, special promotions,
or other merchant-oriented promotions for Permitted Advertisers. The SCA is 125
pixels by 300 pixels, and can be served as an html page from BATNET servers with
a frame served by Cavion, an ad tag from the Ad Server or other similar method
as mutually agreed.
D.2.2.i. Both parties acknowledge that the percentages referenced in
sections D.2.2.d through h, are rough guidelines to be achieved over any
twelve-month period. The actual inventory allocation may vary substantially on a
month-to-month basis. For example, BATNET allocations during peak buying periods
(i.e. November-December) may be substantially greater then as indicated by the
guidelines. In the event of a shortfall or overage for either party, such party
shall receive any alternative compensation.
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3. WEB SITE, SEARCH ENGINE, ADVERTISING DESIGN AND OTHER PROGRAMMING
If either party is required to provide design or programming services for
the other party's advertising, the providing party shall be compensated by the
other party at the respective standard rate set forth in Exhibit B. Cavion will
assist BATNET with developing copy, seminars, conferences, and other such
methods for promoting Cavion's BAM. Appropriate fees and expenses, if any, to be
paid by Cavion to BATNET for such assistance will be mutually agreed upon by the
parties.
4. PROMOTION
Cavion and BATNET will develop a promotional program designed to increase
visits and purchasing through Cavion's and/or Cavion Credit Unions' BAM. Such
programming may include sweepstakes, frequent shopper bonuses, e-mail based
promotions, and other promotional giveaways programs.
5. EMAIL MARKETING
Registered Member Emporium BAM Members will receive e-mail-based promotions
only if they have previously agreed to receive such promotions by checking the
appropriate boxes within the Member Emporium or BAM Registration area.
6. RESTRICTIONS
BATNET shall obtain the prior written approval of Cavion prior to
conducting any mailings, advertising or other promotional activities directed at
Cavion, Member Emporium, and/or Cavion Credit Union Members. BATNET shall submit
to Cavion all mailing, advertising and other promotional material prior to any
distribution thereof.
7. MARKETING MATERIALS
7.1 INITIAL AND ANNUAL MARKETING PLAN
Both parties shall agree to an initial marketing plan related to the launch
of Cavion's and/or Cavion Credit Unions' BAM. Such Marketing plan will be
reviewed and modified within 90 days subsequent to the launch of the first five
(5) credit unions. Thereafter, and prior to each calendar half-year, BATNET and
Cavion shall agree to an overall marketing plan for the Cavion and/or Cavion
Credit Union BAM for that year, which BATNET and Cavion shall implement through
the use of Marketing Materials. Marketing Materials may include, but not be
limited to, any
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brochure, pamphlet, statement stuffer, advertisement, telemarketing script or
talking points, sign, in-person promotion, convention exhibit, seminar, social
event, program sponsorship, or other promotions used in connection with Cavion's
and/or Cavion Credit Unions' BAM to encourage use of the same. Until such a new
plan is agreed upon the parties may continue marketing in the manner provided by
the plan then currently in effect.
7.2 MEMBER NAMES AND EMAIL ADDRESSES
In addition to the foregoing marketing materials, in order to effectuate an
effective marketing campaign, Cavion will use reasonable efforts to obtain from
Cavion Credit Unions for BATNET any and all member demographics, including, but
not limited to, names, addresses and e-mall addresses, the costs of which shall
be paid by BATNET. Notwithstanding the foregoing, Cavion will not obtain any
member information from member who have opted-out of any such program.
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EXHIBIT E
EXAMPLES OF BATNET ASSOCIATIONS
<PAGE>
EXHIBIT F
EXAMPLES OF CAVION ASSOCIATIONS
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EXHIBIT G
EXAMPLES OF CAVION MERCHANTS