License Agreement - MoneyLine America LLA and Cavion Technologies Inc.
LICENSE AGREEMENT
-----------------
THIS LICENSE AGREEMENT (the "Agreement") is entered into as of this
18th day of August, 1999, by and between MONEYLINE AMERICA, LLC
("MoneyLine"), a California limited liability company with its principal
place of business located at 38350 Fremont Blvd., Suite 200, Fremont, CA
94536, and CAVION TECHNOLOGIES, INC., DOING BUSINESS AS CAVION.COM
("Cavion"), a Colorado corporation with its principal place of business
located at 7475 Dakin Street, Suite 607, Denver, Colorado 80221, sometimes
collectively referred to herein as the "Parties" and individually as a
"Party."
W I T N E S S E T H:
--------------------
WHEREAS, Cavion is a provider of Internet related products and
services to the credit union industry and is building and managing a
secure, virtual private communications network, exclusively for the credit
union industry, to act as a service delivery platform for credit unions
and their suppliers (hereinafter referred to as the "Cavion Network");
WHEREAS, MoneyLine is a full-service mortgage lender with an interest
in providing mortgage services to the credit unions, and the credit union
members, connected to the Cavion Network; and
WHEREAS, the Parties desire to enter into this Agreement, whereby,
subject to the terms and conditions contained herein, certain of
MoneyLine's products and services will be licensed to Cavion and the
Parties will cooperate in MoneyLine's offering of mortgage loan services
to members of credit unions affiliated with the Cavion Network.
NOW THEREFORE, in consideration of the mutual promises of the
Parties, in reliance on the representations, warranties, covenants and
conditions contained in this Agreement, and for other good and valuable
consideration, the Parties agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the term "Cavion Content" shall mean
and refer to the information, data and other materials contained
on the Cavion Network, exclusive of any information, data or
other materials relating or referring to MoneyLine's products or
services, or the MoneyLine Mortgages, as defined herein.
1.2 As used in this Agreement, the term "Click-Throughs" shall mean
and refer to a User presence at the MoneyLine Web Site which
originated from any site on the Cavion Network, or which linked
to the MoneyLine Web Site from a bookmark created during a
session originating from any site on the Cavion Network.
1.3 As used in this Agreement, the term "Intellectual Property
Rights" shall mean and refer to all rights in and to trade
secrets, patents, copyrights, trademarks, know-how, as well as
all moral rights, common law rights, and any and all similar
rights of any type under the laws of any governmental authority,
domestic or foreign.
1.4 As used in this Agreement, the term "Internet" shall mean and
refer to the collection of computer networks commonly known and
referred to as the Internet and shall include, without
limitation, the World Wide Web.
1.5 As used in this Agreement, the term "MoneyLine Content" shall
mean and refer to all information, data and materials relating
to the real estate mortgage products offered by MoneyLine, as
defined in this Agreement, and shall include, without
limitation, all programs utilized by MoneyLine relative to the
application for mortgage services, as well as the evaluation and
processing of the applications.
1.6 As used in this Agreement, the term "MoneyLine Mortgages" shall
mean and refer to the variety of real estate mortgage products
and services to be offered through the Cavion Network by
MoneyLine and shall include, but not be limited to,
conventional, Jumbo, Super-Jumbo, government, seconds, home
improvement, equity, piggy back, and any and all such other home
loan programs or residential mortgage services as may become
available to or through MoneyLine from time to time.
1.7 As used in this Agreement, the term "MoneyLine Symbols" shall
mean and refer to all of MoneyLine's trademarks, service marks,
logos, and other distinctive brand features of MoneyLine
utilized by MoneyLine at any time during the term of this
Agreement. A list of the current MoneyLine Symbols, as of the
date of execution of this Agreement, is attached hereto as
Exhibit "A" and incorporated herein by this reference.
1.8 As used in this Agreement, the term "Cavion Symbols" shall mean
and refer to all of Cavion's trademarks, service marks, logos,
and other distinctive brand features, including the term "Member
Emporium" and any variation thereof used or utilized by Cavion,
of Cavion utilized by Cavion at any time during the term of this
Agreement. A list of the current Cavion Symbols, as of the date
of execution of this Agreement, is attached hereto as Exhibit
"B" and incorporated herein by this reference.
1.9 As used in this Agreement, the term "Credit Union Symbols" shall
mean and refer to all of the trademarks, service marks, logos,
and other distinctive brand features of the credit unions
connected to the Cavion Network which agree to utilize or have
access to the MoneyLine Content at any time during the term of
this Agreement.
1.10 As used in this Agreement, the term "MoneyLine Web Site" shall
mean and refer to MoneyLine's site on the Internet.
1.11 As used in this Agreement, the term the "Cavion Network" shall
mean and refer to Cavion's secure, virtual private
communications network, including its network services such as
Member Emporium and Internet banking, including any credit union
member Internet personal start pages or other services to which
Cavion serves network-based advertising, and including the
network presence of any and all credit unions hosted by Cavion
or any credit union facilitating transactions through the Cavion
private communications network.
1.12 As used in this Agreement, the term "Advertising Impressions"
shall mean and refer to each occurrence that a MoneyLine product
or service is displayed or promoted on the Cavion Network using
advertising banners or other similar methods deployed on the
Cavion Network. An occurrence will be defined based upon
Cavion's reasonable advertising standards as applied to other
advertisers on the Cavion Network.
2. MUTUAL AND RESPECTIVE LICENSES
2.1 Subject to the terms and conditions of this Agreement, MoneyLine
hereby grants to Cavion:
(a) a non-exclusive, worldwide license to use, reproduce,
distribute, display and transmit the MoneyLine Content on,
through or in connection with the Cavion Network and to
permit Users to utilize, including, but not limited to, the
ability to download and print, some or all of the MoneyLine
Content, as Cavion shall determine.
(b) a non-exclusive, worldwide license to modify the MoneyLine
Content, upon the advance, written consent of MoneyLine,
which consent shall not be unreasonably withheld, for
purposes of conforming the MoneyLine content to other
material, data and information on the Cavion Network.
(c) a non-exclusive, worldwide, fully paid license to use,
reproduce and display the MoneyLine Symbols in connection
with the display, marketing, advertising or promotion of
the MoneyLine Content on or relating to the Cavion Network.
(d) The foregoing terms in this Section 2.1 are subject to the
restriction that the MoneyLine Symbols may not be used to
advertise any product or service, other than MoneyLine's
products and services, without MoneyLine's prior written
consent, which consent shall not be unreasonably withheld.
2.2 Subject to the terms and conditions of this Agreement, Cavion
hereby grants to MoneyLine:
(a) a non-exclusive, worldwide, fully paid license to use,
reproduce and display the Cavion Symbols in connection with
the display, marketing, advertising or promotion of the
Cavion Network on MoneyLine's Site or in any of the
MoneyLine Content.
2.3 It is fully agreed and understood by and between the Parties
hereto that no provision of this Agreement prohibits, or in any
way inhibits, the ability or right of MoneyLine to serve non-
credit union members who access the MoneyLine Web Site and seek
to utilize MoneyLine's products or services or to have a
separate site on the Internet which is not connected, linked or
related to the Cavion Network for servicing non-credit union
persons.
3. EXCLUSIVITY OF RELATIONSHIP
3.1 On the Cavion Network, MoneyLine shall be the exclusive Cavion
approved and recommended, on-line mortgage lender for the
MoneyLine Mortgages, or any same or similar products or
services.
(a) Except as otherwise may be provided for in Section 4.1 of
this Agreement, MoneyLine's exclusivity, as provided for in
this Section, shall operate so as to preclude Cavion from
providing any other individual or entity a direct link from
the Cavion Network to any site on the Internet
highlighting, promoting or offering, or otherwise providing
content relating to, any type of residential real estate
mortgage, including, but not limited to, those products and
services which are the same or similar to the MoneyLine
Mortgages. Further, Cavion shall not place any advertising
on the Cavion Network for any residential real estate loan
or mortgage services other than the MoneyLine Content.
3.2 MoneyLine shall not license, distribute or integrate any of the
MoneyLine Content with any competitor of Cavion in the credit
union vertical market, without the prior, written consent of
Cavion.
4. LIMITATIONS ON MONEYLINE EXCLUSIVITY AND CONDUCT
4.1 Under the terms of this Agreement, and pursuant to the Parties'
express intent, MoneyLine's exclusivity with Cavion will be
superseded in the event an individual credit union has entered
into, whether prior or subsequent to the execution of this
Agreement, any other mortgage services arrangement.
(a) In such event, such a credit union or credit unions may
elect to feature MoneyLine's services, in addition to any
other mortgage services provider, but Cavion is under no
obligation to take any action on behalf of MoneyLine
respecting an individual credit union's decision whether or
not to feature MoneyLine's services in addition to the
services of any other provider of mortgage services with
whom the credit union has a relationship. In the event a
credit union elects not to feature the MoneyLine services,
the respective obligations of each of the Parties to this
Agreement shall not be altered but shall remain fully in
place and enforceable by either Party. Notwithstanding the
foregoing, MoneyLine's services may still be offered to the
credit union as an alternative mortgage loan lending
source.
4.2 Cavion, by entering into this Agreement with MoneyLine, will
endorse and recommend MoneyLine's services to the credit unions
connected to the Cavion Network, and shall use commercially
reasonable efforts to promote MoneyLine's services to such
credit unions.
(a) Notwithstanding the foregoing, both Parties to this
Agreement expressly acknowledge, understand and accept that
the decision of each credit union connected to the Cavion
Network to permit MoneyLine to serve its members through
the Cavion Network will be in the sole discretion of the
credit union. Any decision by any credit union not to
permit MoneyLine to provide mortgage services to its
members, or to permit any other provider of mortgage
services to serve its members through the Cavion Network,
shall be deemed to be outside the control of either
MoneyLine or Cavion and shall not operate to the detriment
of either MoneyLine 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.
(b) The Parties acknowledge that certain elements of the Cavion
Network are identified to a User by the Credit Union
Symbols of that User's credit union (for example, the
credit union's home page hosted by Cavion), and certain
elements of the Cavion Network are identified to a User by
the Cavion Symbols and also by the Credit Union Symbols of
that User's credit union (for example, the credit union's
Internet banking application served by Cavion). All such
elements of the Cavion Network are referred to herein as
"portions of the Cavion Network co-branded by a credit
union". The credit union's discretion as described in
Section 4.2(a) applies to all portions of the Cavion
Network co-branded by a credit union.
4.3 Upon being connected to the Cavion Network, MoneyLine will not
offer to the individual members of the credit unions connected
to the Cavion Network any products or services which compete or
interfere, or reasonably could compete or interfere, with the
relationship between a credit union and its individual members,
including the products and services offered by a credit union to
its members.
(a) In the event one or more of the products or services
furnished by MoneyLine under the terms of this Agreement
are in conflict or interfere with one or more products or
services offered by a credit union to its members, but
other MoneyLine products or services would not be in
conflict or interfere with a credit union's products or
services, MoneyLine, at its sole and unfettered discretion,
may elect to offer only those not competing or interfering
products or services, on a credit union by credit union
basis.
(b) Cavion shall notify MoneyLine, in writing, in as prompt a
manner as is commercially reasonable and practical, of any
claim that a MoneyLine product or service is in conflict
with or interferes with any credit union product or
service. Cavion may turn off any link to the MoneyLine Web
Site from any portion of the Cavion Network co-branded by
the complaining credit union(s), until the conflict is
resolved to the credit union's satisfaction. In response to
any claimed conflict, MoneyLine may, at its option, (i)
demonstrate to the credit union(s) that no such conflict or
interference exists, (ii) modify its offered or advertised
products or services so as to negate the conflict or
interference, (iii) remove the conflicting or interfering
product or service from its offering from the relevant
credit union site(s), or (iv) take no action.
5. MONEYLINE PRODUCTS AND SERVICES
5.1 The residential mortgage products to be offered and the services
to be performed by MoneyLine pursuant to this Agreement, as part
of being a full-service, residential mortgage lender, include,
but are not necessarily limited to, the following:
(a) Internet-based pre-approval application process
(b) Automated loan status
(c) MoneyLine's loan application software will be modified to
create a "seamless interface" to Cavion's software and
hardware.
(d) Reduced documentation and "no doc" loans
(e) In-house funding
(f) Flexible underwriting guidelines ("common sense")
(g) High and no FICO scores
(h) Special pricing for credit union members
(i) Loan programs enabling credit union participation
(j) Loan programs enabling credit union compensation
(k) Regional loan completion services
6. CAVION'S OBLIGATIONS TO MONEYLINE
6.1 Subject to the additional terms and conditions of this
Agreement, Cavion shall be solely responsible for the design,
layout, posting and maintenance of the Cavion Content,
including any pages on the Cavion Network featuring a banner or
other Advertising Impression advertising the MoneyLine Content.
(a) Any page featuring a MoneyLine Advertising Impression shall
include a hot link (or a text link or other method of
linking the user directly to the target site, referred to
hereinafter as a "hot link") which shall be in a prominent
position, and which shall direct a User directly to the
MoneyLine Web Site.
6.2 Cavion shall not make any material changes to the MoneyLine
Content as it appears on or through the Cavion Network without
the advance written consent of MoneyLine, which consent shall
not be unreasonably withheld.
6.3 At all times during the term of this Agreement, for purposes of
advertising MoneyLine's products and services on the Cavion
Network, MoneyLine shall be considered and construed to be a
"key" vendor, as defined hereinbelow. However, MoneyLine's
treatment as a "key" vendor with respect to any portion of the
Cavion Network co-branded by a credit union shall be subject to
the credit union's discretion as described in Section 4.2(a).
(a) For purposes of this Agreement, a "key" vendor shall be a
featured vendor, whose products or services shall be
prominently advertised and/or highlighted on the Cavion
Network, with no other vendor's advertising or highlighting
placed in a more prominent position, or with more prominent
timing, on the Network than that offered to MoneyLine.
(i) The foregoing requirement that no other vendor shall
have a more prominent position (either as to location
or timing) on the Network is based on an "on-going
basis" and does not preclude Cavion from more
prominently featuring a vendor on a limited or
special basis, which in no event shall continue for
more than 30 days.
(b) Further, for purposes of this Agreement, Cavion shall make
commercially reasonable efforts to provide the positioning
and timing of a "key" vendor's advertising on the Cavion
Network in the manner most appropriate in light of the
vendor and its products and services.
6.4 In light of MoneyLine's position as a "key" vendor, subject to
the credit union's discretion with respect to any portion of the
Cavion Network co-branded by a credit union, Cavion shall
highlight and advertise MoneyLine as follows:
(a) Each credit union connected to Cavion's Network shall have
a link on its home page with a title substantially similar
to "Mortgage Services" which provides a direct or "hot"
link to the MoneyLine Web Site.
(b) MoneyLine, either directly or through an advertisement for
mortgage services with a hot link to the MoneyLine Web
Site, shall be featured and advertised on the bill paying
and Internet banking start pages of each credit union
member connected to the Cavion Network.
6.5 Subject to the credit union's discretion with respect to any
portion of the Cavion Network co-branded by a credit union,
Cavion will provide a direct or "hot" link to the MoneyLine Web
Site from any generalized advertisement or description in the
Cavion Member Emporium or elsewhere on the Cavion Network for
mortgage loans.
6.6 Each month, Cavion shall provide Advertising Impressions as
described in the following sentence, providing a link to either
the Cavion Network's real estate mortgage site, with a
subsequent direct link to the MoneyLine Web Site, or a direct,
hot link to the MoneyLine Web Site. Subject to subsection (b)
below, Cavion shall provide 200,000 Advertising Impressions per
month during Year Two of this Agreement, 500,000 Advertising
Impressions per month during Year Three, and 1,000,000
Advertising Impressions per month during Years Four and after.
MoneyLine shall provide all content for the Advertising
Impressions, subject to approval by Cavion prior to
implementation, which approval shall not be unreasonably
withheld.
(a) In the event Cavion fails to provide the number of
Advertising Impressions provided for in this Section 6.6,
Cavion will "make good" the shortfall the following month.
In the event there is a shortfall for more than three (3)
consecutive months, Cavion shall be deemed to be in
material breach of this Agreement. If there is a shortfall
at the conclusion of the term of this Agreement, Cavion
will extend its obligations under this Section 6.6 beyond
the term of the Agreement until Cavion's Advertising
Impression obligations are satisfied in full.
(b) It specifically is agreed to by and between the Parties to
this Agreement that the provisions of this Section 6.6
shall not apply until the Cavion Network is fully
implemented, as shall subsequently be understood and agreed
to by and between the Parties in their reasonable, good
faith business judgment. However and notwithstanding the
foregoing, the provisions of this Section 6.6 shall apply
no earlier than one (1) year from the date of execution of
this Agreement. The Parties further acknowledge that
Cavion's obligations under this Section 6.6 are conditional
upon MoneyLine's substantial compliance with those
obligations under Section 7 that would reasonably be
expected to affect the competitive appeal of MoneyLine's
services to credit unions affiliated with the Cavion
Network.
6.7 Prior to the execution of this Agreement, Cavion shall provide a
complete set of technical specifications as needed for MoneyLine
to complete the on-line mortgage loan application and approval
system described in Section 7.1. A true and correct copy of
said specifications is attached hereto as Exhibit "C" and
incorporated herein by this reference. Cavion's technical
specifications are subject to change, within commercially
reasonable limits and dictated by good faith business
relationships, at Cavion's discretion, upon thirty (30) days
written, advance notice.
6.8 Cavion shall implement an interface with the MoneyLine automatic
lending program described in Section 7.1 which is in sound and
operable condition and sufficient to permit MoneyLine to
commence the operations, including the provision of products and
services, under the terms of this Agreement, within 90 days of
the date of execution of this Agreement. Any failure of Cavion
to comply with the foregoing time requirements, without the
written consent of MoneyLine, which consent shall not be
unreasonably withheld, shall constitute a material breach of
this Agreement.
6.9 Throughout the term of this Agreement, MoneyLine's position on
the Cavion Network, as detailed in this Section, shall not be
altered, changed or modified in a material adverse manner as a
result of any upgrades or modifications to the Cavion Network by
Cavion, or any other party, without MoneyLine's prior written
consent, which consent shall not be unreasonably withheld.
6.10 Subject to the credit union's discretion with respect to any
portion of the Cavion Network co-branded by a credit union,
Cavion shall provide MoneyLine with reasonable assistance in
MoneyLine's efforts to advertise and otherwise solicit for its
products and services, by, without limitation, such methods as
flyers, mail inserts or lobby displays, through the credit
unions connected to the Cavion Network.
6.11 Cavion's sales people shall be trained by MoneyLine, as provided
for in Section 7.13, however, Cavion shall take all reasonably
necessary steps to ensure that its salespeople are appropriately
familiar with and knowledgeable of both MoneyLine, and its
products and services, and the residential, real estate mortgage
business.
7. MONEYLINE'S OBLIGATIONS TO CAVION
7.1 As soon as practicable upon execution of this Agreement, but in
no event later than thirty (30) days from said date, MoneyLine
shall develop and implement an automatic lending format and
program and shall develop an Internet page or pages relative to
its mortgage services, each of which must conform to Cavion's
specifications, as referenced and described in Section 6.7
hereinabove, and each of which must be approved by Cavion prior
to implementation, which approval shall not be unreasonably
withheld.
(a) MoneyLine shall use its commercially reasonable efforts to
ensure that all pages of the MoneyLine Web Site which are
linked, directly or indirectly, to the Cavion Network
comply with the scale, speed and performance equivalent to
that provided on the Cavion home site.
(b) MoneyLine shall operate and maintain the MoneyLine Web Site
so as to keep the MoneyLine Web Site competitive with
similar sites on the Internet, based upon performance,
quality, appearance, and loan terms, and shall, at all
times during the term of this Agreement, use its
commercially reasonable efforts to ensure that the
MoneyLine Web Site is comparable in look and feel and
otherwise compatible with the Cavion Network.
7.2 Those customers who proceed directly to the MoneyLine Web Site
will be provided with a hot link directly to Cavion's Member
Emporium page. Similarly, a User proceeding to the MoneyLine
Web Site through the Cavion Network will be provided with a hot
link directly back to the Cavion or credit union page from which
the User linked to the MoneyLine Web Site. Each page of the
MoneyLine Web Site will contain a textual hot link, in a form to
be approved by Cavion, which consent shall not be unreasonably
withheld, linking a User to the Cavion Network.
7.3 MoneyLine expressly recognizes that any and all advertising on
the Cavion Network is both a source of revenue for Cavion and
vital to its image and relationship with its credit union
members. Accordingly, MoneyLine expressly warrants and
represents that it will not place any advertising or promotion
of any product or service on the MoneyLine Web Site, or permit
any other person or entity to do the same, without Cavion's
advance, written authorization, which authorization shall not be
unreasonably withheld and which shall be based upon reasonable
and good faith business justification and necessity.
(a) MoneyLine will not place an advertisement on the MoneyLine
Web Site or place any type of link on the MoneyLine Web
Site, on any of its pages, relating to or regarding any
competitor of Cavion or any competitor of a client of
Cavion.
(b) MoneyLine will not place any advertisement on the MoneyLine
Web Site for adult, Soldier of Fortune, firearms, sexual,
hate or other violent or sexually oriented web sites.
Moreover, MoneyLine will not advertise on the MoneyLine Web
Site any advertisers blacklisted or censured by the Federal
Trade Commission, Direct Marketing Association, Advertising
Association or any other recognized authority for filtering
Internet content.
(c) The provisions of this Section 7.3 specifically and
expressly apply only to those portions of the MoneyLine Web
Site which are accessible to credit union members through
the Cavion Network.
7.4 MoneyLine covenants and represents that it will associate with
any financial underwriters, or any other service providers,
necessary to fulfill its obligations to Cavion under the terms
and provisions of this Agreement, and that any such association
shall be at MoneyLine's sole cost. Further, upon reasonable
notice from Cavion, in no event to be less than 15 days,
MoneyLine will provide Cavion with written evidence,
satisfactory to Cavion, in its reasonable and good faith
business judgment, of its ability, particularly, but not
necessarily limited to its financial ability, to fulfill its
obligations to Cavion under the terms and provisions of this
Agreement.
7.5 MoneyLine shall provide and host a secure Web site accessible to
Cavion which contains the information relating to a User's
application on or other use of the MoneyLine Web Site described
in the following section.
7.6 MoneyLine will provide Cavion and the credit unions connected to
Cavion's Network with information, in a form to be agreed upon
between MoneyLine and Cavion, in their good-faith, reasonable
business judgement, notice and information regarding the number
and identity of Users, the number of Click-Throughs, and
detailed tracking of applications, including all information in
MoneyLine's possession regarding a User's application on or
other use of the MoneyLine Web Site. Sharing of information
under this Section shall be subject to any regulatory
limitations applicable to MoneyLine.
7.7 MoneyLine will institute such procedures as reasonably are
necessary to coordinate and transact with the individual credit
unions connected to the Cavion Network both in terms of
processing and servicing of residential mortgage loan
applications through MoneyLine.
7.8 Within 90 days of the date of execution of this Agreement,
MoneyLine's Web Site shall provide Users with an on-line, real-
time method of tracking their application and/or loan with
MoneyLine, which shall include e-mail and telephone contact
information for a MoneyLine employee who can provide further
information.
7.9 MoneyLine shall use its commercially reasonable best efforts to
ensure that all transactions between MoneyLine and a User are
accurate, comprehensive and error free.
7.10 MoneyLine shall use its best efforts to ensure that all
information provided to it by Users is maintained, accessed and
transmitted in a secure environment and shall make all
reasonable effort to comply with any security requests or
concerns of Cavion.
7.11 The MoneyLine Content and any updates shall be transmitted to
Cavion in the manner and form specified by Cavion, as set forth
in Exhibit "D" hereto, which is incorporated herein by this
reference.
7.12 MoneyLine will implement a privacy policy in accordance with any
federal or other government or agency requirement in effect
from time to time and, in any event and notwithstanding any
other regulation, MoneyLine will comply with any reasonable
privacy policy implemented by Cavion, provided that Cavion gives
MoneyLine thirty (30) days written notice of any such privacy
policy, or any change thereto.
7.13 Subject to the terms of Section 6.11 hereinabove, MoneyLine will
train Cavion's salespeople with respect to the MoneyLine
Mortgages, the MoneyLine Content and any other pertinent
matters relating to this Agreement. Trainings will occur at
Cavion's field offices, at times to be agreed upon between
MoneyLine and Cavion, in their good-faith, reasonable business
judgement. The Parties will each bear their own expenses of
attending the trainings.
7.14 Within 30 days after execution of this Agreement, MoneyLine
shall provide a complete set of technical specifications as
needed for Cavion to implement the interface with the MoneyLine
host data processing software described in Section 6.8.
MoneyLine's technical specifications are subject to change,
within commercially reasonable limits and dictated by good faith
business relationships, at MoneyLine's discretion, upon thirty
(30) days written, advance notice.
8. MUTUAL OBLIGATIONS OF THE PARTIES
8.1 Each Party shall comply with any intellectual property
guidelines provided by the other Party with respect to the use
of such Party's products and neither Party will alter or impair
any acknowledgment of the other Party's copyright or other
Intellectual Property Rights.
8.2 Cavion will remain solely responsible for the operation of the
Cavion Network, and all related sites, and MoneyLine will remain
solely responsible for the operation of the MoneyLine Web Site.
Each Party, subject to the terms of this Agreement, will retain
sole right and control over the programming, content, and
conduct of transactions over its respective site.
8.3 Each Party shall provide on-going assistance to the other Party
with regard to technical, administrative and service-oriented
issues relating to the terms of this Agreement, and the
execution of the respective obligations and conditions set forth
herein as the Parties, or either of them, reasonably may
request.
9. COMPENSATION
9.1 INITIAL EXCLUSIVITY FEE: In consideration for the obligations
and duties to be performed by Cavion under the terms of this
Agreement, and in consideration and in exchange for the
exclusivity provided for in Section 3.1 of this Agreement,
MoneyLine shall pay to Cavion an Annual Exclusivity Fee payable
as follows:
(a) For Year One (as defined below) of this Agreement, the
Annual Exclusivity Fee to be paid by MoneyLine shall be
$300,000 paid as follows:
(i) $100,000 on September 3,1999
(ii) $200,000 on September 23,1999
(b) In each subsequent year of this Agreement, the Minimum
Annual Exclusivity Fee shall be subject to the following
graduated scale ( and shall be subject to automatic
adjustments as detailed in Section 9.1(c) below):
(i) Year Two: $350,000
(ii) Years Three, Four and Five: $500,000
(iii) Years Six through Ten: $1,000,000
(c) The actual Annual Exclusivity Fee to be paid to Cavion in
each year following the first year of this Agreement shall
be the greater of the Minimum Annual Exclusivity Fee or the
Click-Through Fee, which shall be $0.10 per Click-Through,
as defined in this Agreement.
(i) The Click-Through fee shall be paid by MoneyLine to
Cavion within thirty (30) days of the last day of
each Quarterly Period (as defined below) throughout
the term of this Agreement.
(ii) In the event the Click-Through fees paid in any given
Year are not equal to or greater than the Minimum
Annual Exclusivity Fee, as detailed in Section 9.1(b)
of this Agreement, the difference shall be paid by
MoneyLine to Cavion within thirty (30) days of the
end of such Year.
(d) Cavion, in its sole and unfettered discretion, at any time
during the term of this Agreement may elect to become a
licensed real estate broker in each state where MoneyLine
offers its services. In such event, at Cavion's sole and
unfettered option, in lieu of the Annual Exclusivity Fee
detailed above, from the date of such licensing in each and
every such state throughout the term of this Agreement,
Cavion may elect to be entitled to $50.00 for each loan
generated through the Cavion network or as otherwise
covered by this Agreement (the "Loan Fee"). For this
purpose, any loan to a member of a credit union affiliated
with the Cavion Network is covered by this Agreement.
Cavion may elect to be entitled to the Loan Fee or the
Annual Exclusivity Fee from time to time throughout the
term of this Agreement, but no more frequently than once in
any twelve-month period, and in each case upon at least
sixty (60) days notice.
(i) In the event Cavion elects to become registered as a
real estate broker in accordance with the terms of
the preceding paragraph, prior to electing to receive
the payment described in that paragraph in lieu of
the Annual Exclusivity Fee detailed in Sections
9.1(a), (b) and (c) above, Cavion must present
MoneyLine with evidence of its valid registration as
a real estate broker. For as long as Cavion is
entitled to receive that payment, Cavion must provide
MoneyLine with evidence of any and all renewals of
such licenses during the term of this Agreement and
further must provide MoneyLine with immediate written
notice in the event any license is terminated or
revoked.
(ii) In addition, and in any event, Cavion shall provide
MoneyLine with thirty (30) days written notice of its
election to receive its compensation under this
Agreement pursuant to the terms of Section 9.1(d).
(iii) Regardless of any registration by Cavion as a real
estate broker, MoneyLine shall maintain the
exclusivity provided for in this Agreement for the
entire term of this Agreement and at no time shall
Cavion become a competitor of MoneyLine in the
provision of residential real estate mortgage
services.
(e) For purposes of calculating the Annual Exclusivity Fee
detailed above, "Year One" of this Agreement shall be the
twelve-month period beginning on the first day of the month
in which the interface with the MoneyLine Web Site
described in Section 6.8 is completed, but in no event
later than January 1, 2000 (the "Implementation Date"), and
each Year of this Agreement shall be the twelve-month
period following the preceding Year. The first "Quarterly
Period" shall be the three-month period beginning on the
first anniversary of the Implementation Date, and each
Quarterly Period of this Agreement shall be the three-month
period following the preceding Quarterly Period.
9.2 The compensation detailed in Section 9.1 of this Agreement
expressly is contingent upon the conditions described in this
Section 9.2, in order to reflect the continued growth and
vitality of Cavion during the term of this Agreement. In the
event Cavion has not signed and connected to its network either
1,500 credit unions or 12% of United States credit unions by the
end of the third Year of this Agreement, the Minimum Annual
Exclusivity Fee shall thereafter be reduced proportionately and
such adjustment shall continue for so long as Cavion does not
have either 1,500 credit unions or 12% of United States credit
unions signed and connected to its network.
9.3 It is expressly understood and agreed by and between the
Parties, and each of them, that the Annual Exclusivity Fee
referenced in Section 9.1 of this Agreement is a fee negotiated
between the Parties without reference, in any manner or form, to
the number or amount of loan applications taken or loans
originated by MoneyLine in connection with this Agreement.
10. AUDIT RIGHTS
10.1 Cavion shall have the right, at its own expense, to direct an
independent certified public accounting firm to inspect and
audit the books and records of MoneyLine which, in the sole and
unfettered judgment of the certified public accounting firm, are
relevant to the payments by MoneyLine to Cavion set forth in
Section 9 of this Agreement, provided, however, that:
(a) MoneyLine shall be provided with not less than thirty (30)
days notice of any such audit;
(b) any such audit shall be conducted during MoneyLine's normal
and regular business hours and shall be conducted in such a
manner so as to minimize interference with MoneyLine's
normal business activities;
(c) in no event shall Cavion call for audits any more
frequently than one (1) per calendar year, unless an
underpayment by MoneyLine of more than ten percent 10 % for
any calendar quarter, in which case Cavion shall be
entitled to call for one (1) audit each calendar quarter,
not to exceed a total of four (4) audits per calendar year,
for a period of two (2) years after such underpayment is
revealed by an audit report prepared by an independent
certified public accounting firm;
(d) in the event an audit reveals an underpayment by MoneyLine
of more than ten percent 10% for any calendar quarter,
MoneyLine shall be required to reimburse Cavion for the
reasonable and actual costs of such an audit; and
(e) in the event any audit reveals an overpayment by MoneyLine,
MoneyLine shall be entitled to offset such amounts against
any further payments due to Cavion under the terms of this
Agreement, and , in the event no such future payments are
due, to have such amounts refunded by Cavion in a prompt
manner.
11. ADVERTISING REVENUE
11.1 Cavion shall have the sole and exclusive right to sell, license
or otherwise dispose of all advertising and promotional rights
with respect to the Cavion Network, and all pageviews on the
Cavion Network.
12. PAYMENT INFORMATION
12.1 All payments made hereunder are non-refundable and non-
creditable, except as is provided in for in Section 9
hereinabove, and shall be made by wire transfer pursuant to the
wire instructions set forth in Exhibit "E" hereto, which is
incorporated herein by this reference.
12.2 Any portion of the payments required to be made under the terms
of this Agreement not paid on the date or dates provided for
herein shall bear interest at the lesser of (i) eight percent
(8%) per month or (ii) the maximum amount allowed by law.
12.3 Notwithstanding any other provision of this Agreement, any
failure of MoneyLine to make any of the payments called for
under the terms of this Agreement within thirty (30) days of the
date or dates provided for herein shall constitute a material
breach of this Agreement.
13. OWNERSHIP
13.1 The Parties hereto agree and understand that they will jointly
own, equally and without distinction, any and all information
collected as a result of the collaboration between the Parties
hereto contemplated by this Agreement. Accordingly, neither
Party will make any claim to or from the other Party with
respect to any revenues or products derived from such data
unless otherwise agreed to by the Parties in writing.
13.2 Cavion and other parties with which Cavion has a business
relationship own or license all Intellectual Property Rights in
the Cavion Content and the Cavion Symbols. MoneyLine owns or
licenses all Intellectual Property Rights in the MoneyLine
Content and the MoneyLine Symbols. Neither Party will acquire
any rights to Intellectual Property Rights of the other by
virtue of this Agreement, except as specifically stated in
Section 2.
14. TERM
14.1 This Agreement shall have a term, commencing on the date first
set forth hereinabove, and continuing thereafter for a period of
ten (10) years, with a subsequent renewal for ten (10) years
upon mutual agreement.
(a) In the event of a renewal of this Agreement, the Annual
Exclusivity Fee to be paid shall be as mutually agreed.
(b) If within one year prior to the expiration of the initial
term of this Agreement, Cavion has received an offer from a
competitor of MoneyLine to be the exclusive Cavion approved
and recommended on-line residential mortgage lender, and
Cavion intends to accept such offer rather than renew this
Agreement, MoneyLine shall have a first right to match such
offer under this Section 14.1(b). Cavion shall give notice
(the "Refusal Notice") to MoneyLine, specifying all
material information about the proposed transaction,
including the identity of the proposed lender and all
material terms of the proposed transaction. If MoneyLine
does not, within 30 days after the Refusal Notice, offer to
Cavion a transaction that matches the proposed transaction
in all material respects, Cavion may enter into the
proposed transaction upon expiration of this Agreement.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS
15.1 In order to implement the operation of this Agreement, the
Parties hereto jointly and severally represent, warrant,
covenant, agree and consent as follows:
(a) The execution, delivery and performance of this Agreement,
in the time and manner herein specified, will not conflict
with, result in a breach of, or constitute a default under
any existing agreement, indenture, or other instrument to
which either Party to this Agreement is a party or by which
either Party may be bound or affected or any government
order or decree to which they are subject;
(b) Both Parties hereto have full legal authority to enter into
this Agreement and to perform the same in the time and
manner contemplated;
(c) This Agreement has been submitted to, ratified and approved
by the respective Board of Directors of Cavion and
MoneyLine;
(d) Each of the Parties warrants and represents that it will
cooperate with the other Party, and promptly will provide
the other Party with all pertinent materials and requested
information in order for such Party to perform its
obligations under this Agreement;
(e) Each of the Parties, at all times during the term of this
Agreement, shall have all the licenses and approvals
necessary to enter into and perform under this Agreement
and specifically to grant the licenses contained herein;
(f) MoneyLine warrants and represents that it is, and at all
times during the term of this Agreement will be, in
compliance with any and all applicable laws, rules and
regulations of any jurisdiction applicable to its business
activities, including, without limitation, the Federal Real
Estate Settlement Procedures Act of 1974 and HUD
Regulation X promulgated thereunder, the Federal Equal
Credit Opportunity Act, and Federal Reserve Regulation B,
the Federal Truth in Lending Act and Federal Reserve
Regulation Z promulgated thereunder, the Fair Credit
Reporting Act, and all federal, state and local privacy
laws, rules and regulations and any other applicable laws
of any jurisdiction applicable to MoneyLine's business
activities now in effect or which may come into effect
during the term of this Agreement.
(g) MoneyLine represents and warrants that its program and
materials are substantially free from programming errors or
viruses and will produce results in response to a User's
inquiries which are accurate, comprehensive and error-free.
MoneyLine further represents and warrants that its program
and materials will accurately process date data from, into
and between the twentieth and twenty-first centuries, and
the years 1999 and 2000, including leap year data, provided
that all other products used in combination with the
MoneyLine program and materials properly exchange date data
with them. MoneyLine further represents and warrants that
all User information will be obtained, maintained and
distributed in a secure environment.
16. INDEMNIFICATION
16.1 MoneyLine, at its own expense, will indemnify, defend and hold
harmless Cavion, its affiliates, employees, representatives, or
agents, against any claim, suit, action or other proceeding
brought against Cavion based on or arising from a claim (a)
that, if true, would constitute a breach of warranties and
representations set forth in Section 15 hereinabove, or (b) that
the MoneyLine Content or any material, product, information,
data or service produced, distributed, offered or provided by
MoneyLine or any material presented on any site on the Internet
produced, maintained, or published by MoneyLine infringes, in
any manner, any copyright, patent, trademark, trade secret or
any other intellectual property right of any third party, is or
contains any material or information that is obscene,
defamatory, libelous, slanderous, or that violates any law or
regulation, is negligently performed, or otherwise breaches or
violates any duty toward, or the rights of any person or
personality, or otherwise has resulted in any consumer fraud,
product liability, tort, breach of contract, injury, damage or
harm of any kind to any person or entity, and also including any
claim relating to any mortgage loan approval or mortgage
application provided by MoneyLine.
16.2 Cavion, at its own expense, will indemnify, defend and hold
harmless MoneyLine and its employees, representatives, agents
and affiliates, against any claim, suit, action, or other
proceeding brought against MoneyLine based on or arising from a
claim (a) that, if true, would constitute a breach of warranties
and representations set forth in Section 15 hereinabove, or (b)
that the Cavion Content or any material, product, information,
data or service produced, distributed, offered or provided by
Cavion or any material presented on any site on the Internet
produced, maintained, or published by Cavion infringes, in any
manner, any copyright, patent, trademark, trade secret or any
other intellectual property right of any third party, is or
contains any material or information that is obscene,
defamatory, libelous, slanderous, or that violates any law or
regulation, is negligently performed, or otherwise breaches or
violates any duty toward, or the rights of any person or
personality, or otherwise has resulted in any consumer fraud,
product liability, tort, breach of contract, injury, damage or
harm of any kind to any person or entity.
16.3 Any indemnification under this Section 16 is subject to the
conditions that (a) the indemnified party provides the
indemnifying party with prompt notice of any such claim, (b) the
indemnified party permits the indemnifying party to assume and
control the defense of such action, with counsel to be selected
by the indemnifying party, and (c) no settlement or compromise
of such a claim shall be entered into without the prior written
consent of any Party that would be bound by or required to make
a payment under such settlement, which consent shall be
unreasonably withheld. Upon the indemnifying party's written
notice, the indemnified party will provide to the indemnifying
party all available information and such reasonable assistance
as may be necessary for the indemnifying party to defend such
claim.
17. LIMITATION OF LIABILITY
17.1 EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 16 OF THIS
AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MONEYLINE, CAVION, OR
ANY AFFILIATE OF EITHER MONEYLINE OR CAVION BE LIABLE TO ANY
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH
SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF REVENUES,
ANTICIPATED PROFITS OR LOST PROFITS.
18. PUBLIC ANNOUNCEMENTS
18.1 Neither Party shall make any public announcement regarding this
Agreement or the relationship between the Parties set forth
herein without the express, prior written consent of the other
Party. However, it is understood that Cavion is required to file
this Agreement as a public document with the Securities and
Exchange Commission.
19. CONFIDENTIALITY
19.1 Except as may be agreed between the Parties with respect to a
public announcement, neither Party shall disclose to any third-
party either the existence of this Agreement, or the terms
hereof, without the prior written consent of the other Party,
except as may be required by law.
19.2 The Parties hereto have entered into a Mutual Nondisclosure
Agreement to protect the confidential and/or proprietary
information of both Parties during the term of this Agreement, a
true and correct copy of which is attached hereto as Exhibit F
and incorporated herein by this reference.
20. INSURANCE
20.1 MoneyLine agrees that it will maintain insurance with a carrier
that is reasonably acceptable to Cavion and with coverage for
commercial general liability of at least two million dollars
($2,000,000) per occurrence for Year One of this Agreement, and
thereafter at least five million dollars ($5,000,000) per
occurrence, or such larger amount as is commercially reasonable
for a residential real estate mortgage lender of MoneyLine's
size. Prior to the launch of the MoneyLine Content on the Cavion
Network, MoneyLine shall obtain and thereafter maintain coverage
for errors and omissions of at least two million dollars
($2,000,000) per occurrence for Year One of this Agreement, and
thereafter at least five million dollars ($5,000,000) per
occurrence, or such larger amount as is commercially reasonable
for a residential real estate mortgage lender of MoneyLine's
size. MoneyLine will name Cavion as an additional insured on
each such insurance policy, and will provide evidence of such
insurance to Cavion prior to the launch of the MoneyLine Content
on the Cavion Network. MoneyLine shall not cancel or modify such
insurance without Cavion's prior written consent and such
insurance shall remain in effect after the termination hereof.
MoneyLine shall not be obligated to continue to name Cavion as
an additional insured after the expiration of this Agreement,
except to the extent that (i) a claim or potential claim is
pending at the time of such termination, or (ii) Cavion is
required under this Agreement to maintain any link to the
MoneyLine Web Site after such expiration.
21. TERMINATION
21.1 Unless otherwise expressly provided for in this Agreement, this
Agreement may be terminated by either Party if the other Party:
(a) files a petition in bankruptcy, or an insolvency filing
against the other party is not dismissed within 60 days;
(b) makes an assignment for the benefit of its creditors;
(c) is subject to a receivership; or
(d) materially breaches any of its obligations under this
Agreement provided that such material breach is not
remedied within ninety (90) days, or in the case of an
obligation to make any payment within ten (10) days, after
notice thereof.
21.2 Any termination pursuant to this Section shall be without
liability or obligation of the terminating Party, except as with
respect to any breach of this Agreement occurring prior to the
termination.
21.3 The provisions of Sections 9.1, 10, 12, 13 and 15 through 22,
inclusive, of this Agreement, shall survive any termination of
this Agreement, or this Agreement's expiration.
22. MISCELLANEOUS
22.1 NOTICES.
(a) All notices and other communications made pursuant to this
Agreement shall be in writing and shall be deemed to have
been given upon receipt by (1) personal delivery, (2)
receipted courier service, or (3) certified or registered
mail, return receipt requested, addressed as shown below.
Refusal to accept delivery shall be deemed receipt. All
notices shall be directed to the following addresses:
(i) If to MoneyLine:
MoneyLine America, LLC
38350 Fremont Blvd., Suite 200
Fremont, CA 94536
Attn: Shamim Ritter
(ii) If to Cavion:
cavion.com
7475 Dakin Street, Suite 607
Denver, CO 80221
Attn: David J. Selina, President and CEO
(b) Any Party hereto may change the address to which notices
shall be directed under this by giving written notice of
such change to the other Party.
22.2 WAIVERS. The rights and remedies under this Agreement shall be
cumulative and not exclusive of any rights or remedies which the
Parties hereto otherwise would have. No failure or delay in
exercising any right shall operate as waiver of such right. Any
waiver or indulgence granted shall not constitute a modification
of this Agreement, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at
variance with the terms of the Agreement such as to require
further notice of the intent to require strict adherence to the
terms of the Agreement in the future. Any such actions shall
not, in any way, affect the ability of the Parties, in their
sole discretion, to exercise any rights available to them under
this Agreement.
22.3 GOVERNING LAW; BINDING EFFECT. This Agreement and each of the
other documents attached hereto or contemplated hereby shall be
deemed to have been made in Denver, Colorado, and shall be
interpreted, and the rights and liabilities of the Parties
hereto shall for all purposes be governed by and construed and
enforced without giving effect to the principles of conflicts of
laws, in accordance with the laws of the State of Colorado
applicable to agreements executed, delivered and performed
within such State. In the event of any controversy arising out
of the interpretation, construction, performance or breach of
this Agreement, the Parties hereby consent to the jurisdiction
and venue of the United States District Court for the District
of Colorado, and further agree and consent that personal service
or process in any such action or proceeding outside of the State
of Colorado, and outside Denver County, Colorado shall be
tantamount to service in person within Denver County, Colorado
and shall confer personal jurisdiction and venue upon said
Court.
22.4 TRANSFER. In the event either Party, or any part thereof,
including any products, affiliates, divisions or subsidiaries,
to this Agreement is sold, transferred or acquired by any other
person or entity, the respective rights and obligations of the
Party being sold, transferred or acquired pursuant to this
Agreement shall transfer to the acquiring party, and each Party
to this Agreement hereby agrees and warrants that, in the event
of any sale, transfer or acquisition, such Party will ensure
that the rights and obligations of this Agreement duly are
transferred pursuant to such sale, transfer or acquisition. This
Agreement may not otherwise be assigned without the prior
written consent of the non-assigning party, which shall not be
unreasonably withheld.
22.5 HEADINGS. The headings used in this Agreement are for
convenience only and shall not be used in connection with the
interpretation of any provision hereof.
22.6 AMENDMENT AND WAIVER. Neither this Agreement nor any term
hereof may be amended orally, nor may any provision hereof be
waived orally, but rather, only by a written instrument signed
by each of the Parties hereto.
22.7 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement and the other documents described or
contemplated herein embody the entire agreement and
understanding among the Parties hereto and supersede all prior
agreements and understandings relating to the subject matter
hereof.
22.8 DRAFTING PARTY. This Agreement expresses the mutual intent of
the Buyer and Seller. Accordingly, regardless of the Party
preparing any document, the rule of construction against the
drafting Party shall have no application to this Agreement.
22.9 FACSIMILE SIGNATURE / COUNTERPARTS. Facsimile signatures on
this document shall be sufficient and acceptable to bind the
parties and for execution of this Agreement. This Agreement
shall be effective and binding only when executed by all Parties
hereto. This Agreement may be executed in counterparts by
facsimile, each of which so executed shall be deemed an original
and constitute one and the same agreement,
22.10 Dominant Agreement. This Agreement shall be construed, in all
relevant manners, to be the dominant agreement between the
Parties relevant to the subject matter hereto and shall be
severed from any contrary provision, or any provision deemed
void or otherwise unenforceable, of any Exhibit or other
document incorporated herein.
22.11 Disputes. In the event of any dispute under this Contract, the
Party claiming a dispute will give notice to the other Party
describing the dispute. Both Parties will make good faith
efforts to resolve the dispute informally. If the dispute has
not been resolved within 30 days after the notice, either Party
may, upon notice to the other, submit the dispute to mediation
in Denver, Colorado, before a mutually acceptable mediator. If
the Parties are unable to agree upon a mediator, either Party
may request the appointment of a mediator by any established
dispute resolution organization. If mediation is not successful
within 90 days or if either Party will not submit to mediation,
either Party may, upon notice to the other, submit the dispute
to binding arbitration in Denver, Colorado, in accordance with
the rules of any established dispute resolution organization, by
a single arbitrator. The arbitration will be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16, and
judgment upon the award may be entered by any court of competent
jurisdiction. The arbitrator will not be empowered to award
damages in excess of actual damages, but will be empowered, but
not required, to require any Party to pay the reasonable
attorney fees, expert witness fees, and other arbitration costs
of any other Party.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
or caused it to be executed by their duly authorized officers as of the
day and year first above written.
MONEYLINE AMERICA, LLC CAVION TECHNOLOGIES, INC.
By:/s/Shamin S. Ritter By:/s/David J. Selina
Shamim S. Ritter David J. Selina
Title: President Title:
President/Chief
Executive Officer