Development and Promotion Agreement - Cavion Technologies Inc. and Stockwalk.com Inc.
DEVELOPMENT AND PROMOTION AGREEMENT
THIS DEVELOPMENT AND PROMOTION AGREEMENT (this "Agreement"), dated as of
March 9, 2000 (the "Effective Date"), is made by and among Cavion Technologies,
Inc., a Colorado corporation, ("Company") and Stockwalk.com, Inc., a Nevada
corporation ("Stockwalk") (sometimes referred to collectively as the "Parties"
and individually as a "Party").
RECITALS
A. Stockwalk is a securities broker-dealer licensed to conduct securities
business pursuant to applicable federal and state laws; and,
B. Company is an on-line bank service provider that desires to make
available to members and customers of its correspondent credit unions and banks
("Institutions") via the Internet the broad range of Internet securities
services offered by Stockwalk within the limits of applicable statutory and
regulatory restrictions; and,
C. Stockwalk desires to provide Institution's members and customers various
Internet securities brokerage services by allowing Company to private label and
market Stockwalk's user interface to Institutions.
NOW, THEREFORE, in consideration of the mutual covenants hereafter set
forth and other valuable consideration, the receipt and efficacy of which hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. BACKGROUND
Stockwalk and Company have entered into this Agreement to permit Company's
Institutions and their members and customers ("Customers") to utilize the
on-line brokerage services of Stockwalk as more fully described below (the
"Stockwalk Services"). The purposes of this Agreement are:
a. to provide for the development of access to Stockwalk Services through
a Co-Branded Site,
b. to set forth the understandings and agreements of the Parties as to
promotion of the Stockwalk services by Company, and
c. to provide for payment to Company for its role in assisting in the
development of this relationship and in promoting the availability of
the Stockwalk Services to its client Institutions.
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Stockwalk's brokerage services will be offered as a co-branded site and
will be accessed by the Customers of participating Institutions through a
co-branded web site for participating Institutions ("Co-Branded Site"), which
Co-Branded Site will be hosted by Stockwalk. Customers will access the
Co-Branded Site via hyper-text links from each participating Institution's web
sites which are hosted by Company pursuant to a Company Master Services
Agreement by and between such Institution and Company.
In accordance with the terms of this Agreement, the Stockwalk Services will
be offered to Company's participating Institutions and made available only to
such Institutions who have agreed to be bound by the terms and conditions set
forth in the Networking/Affiliation Agreement by and between Stockwalk and
Institution. This Agreement is made in connection with the other agreements
among the Parties and Institutions as described on Schedule I (collectively, the
"Other Agreements").
SECTION 2. DEFINITIONS
Many terms used in this Agreement are defined in context in Section 1,
above. The following terms used in this Agreement have the respective meanings
set forth below.
2.1 "AFFILIATE" means, with respect to any Party, any individual or entity
that directly or indirectly controls, is controlled by or is under common
control with that Party. As used in this definition, "control" means either (a)
the ownership of greater than 50% of an entity's voting securities or (b) the
ability, through contract or otherwise, to determine an entity's operating
activities.
2.2 "CO-BRANDED SITE" means, the customized version of the Stockwalk Site,
privately labeled and displayed concurrently with Company's customized Exterior
Page Frame applicable to participating Institutions, that will be hosted and
operated by Stockwalk, as described herein. The Parties acknowledge and agree
that the Stockwalk site offered to participating Institutions will be
Stockwalk's generic "Grey Label" site, and that each participating Institution
requiring a customized site shall be required to enter into a "Level II"
Networking Affiliation Agreement containing Stockwalk's normal and customary
terms and conditions.
2.3 "COMMENCEMENT DATE" means the Launch Date of the Co-Branded Site which
shall be no later than 30 days after the date Company first makes available to
Stockwalk all Exterior Page Frames, links, advertisements and other promotional
placements described in SCHEDULE 2.3 to this Agreement. Notwithstanding the
foregoing, this Agreement will commence upon the Effective Date.
2.4 "COMPANY MARKS" means the trade names, trademarks, service names and
similar proprietary marks listed on Schedule 2.4 ATTACHED HERETO.
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2.5 "CUSTOMER" has the meaning set forth in Section 1.
2.6 "EXTERIOR PAGE FRAMES" means Company's standard exterior framing and a
navigational bar, as revised by Company from time to time. Each Exterior Page
Frame will be hosted by Company and shall reside in Company's servers for
display on the Co-Branded Site.
2.7 "LAUNCH DATE" means the first date on which the Stockwalk Services are
made publicly available to Customers via a Co-Branded Site that is linked to the
corresponding Institution's Site.
2.8 "SITE" means a commercial web site on the World Wide Web portion of the
Internet.
2.9 "STOCKWALK BANNERS" means any banner, button, text or similar ads
Stockwalk provides to Company in connection with this Agreement.
2.10 "STOCKWALK MARKS" means the trade names, trademarks, service names and
similar proprietary marks listed on SCHEDULE 2.6 ATTACHED HERETO.
2.11 "STOCKWALK SERVICES" means electronic and online brokerage services,
securities transactions and all related products available at the Stockwalk Site
during the term of this Agreement.
2.12 "STOCKWALK SITE" means the Site located at [http://@vww.stockwalk.com]
(or any replacement or successor address).
SECTION 3. PARTIES' OBLIGATIONS
3.1 COMPANY DEVELOPMENT. Company will design and develop linking
capabilities to provide access to the Co-Branded Site from the participating
Institution's Site, in accordance with the general specifications and timetable
set forth on SCHEDULE 2 as agreed upon by both Parties.
3.2 PRE-LAUNCH DELIVERABLES. On or before thirty days following the
commencement of this agreement, Company shall make available to Stockwalk the
Exterior Page Frames and the other materials specified in SCHEDULE 2 for the
Co-Branded Site. Company shall develop the Exterior Page Frames and other
materials 30 days prior to the anticipated Launch Date of the Co-Branded Site.
3.3 COMPANY MARKETING. Company will use reasonable efforts to promote and
market the availability of the Stockwalk Services to the Institutions as
specified on SCHEDULE 2.3 as mutually agreed. All promotional activity shall be
subject to the prior approval of both Parties, in advance and before first use,
which approval shall not be unreasonably withheld or
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delayed; provided that promotional materials, that are substantially identical
to those previously approved, need not be submitted for reapproval.
3.4 STOCKWALK SERVICES OPERATION. Stockwalk shall provide Stockwalk
Services through the Co-Branded Site which it will host and operate in
accordance with the "Performance Standards" set forth in Exhibit A.
3.5 STOCKWALK DEVELOPMENT.
3.5.1 DEVELOPMENT. Stockwalk shall develop a Co-Branded Site to be
displayed within a customized Exterior Page Frame in accordance with
Exhibit B and take all other steps required to co-brand the Stockwalk
Services. Each Institution that elects to purchase the Stockwalk Services
through Company shall execute a "Grey Label" version of Stockwalk's
Networking/Affiliation Agreement in substantially the form attached hereto
as Exhibit C. Other than disclosures required by law and as may be agreed
to by the Parties, no Stockwalk branding will be permitted on the
Co-Branded Site.
3.5.2 CONTROL AND REBRANDING. Stockwalk shall have sole control over
the content and design of the html pages provided by Stockwalk as part of
the Co-Branded Site. Subject to restrictions, regulations, or requirements
imposed by any regulatory agency on Stockwalk, Stockwalk shall use its best
efforts to construct and utilize the Exterior Page Frame requested by
Company and implement such changes to the Co-Branded Site as may be
reasonably requested by Company. Further, Stockwalk shall use its best
efforts to notify Company if Stockwalk proposes to change or add any
functionality of the Stockwalk Services as implemented on the Co-Branded
Site; provided, however, that nothing herein shall obligate Stockwalk to
provide such notice prior to effectuating, such change.
3.5.3 SERVICE OPERATION. Stockwalk shall host and operate the
Co-Branded Site and shall maintain and implement facilities and equipment
and programming, including data communication facilities and Internet
connections, collectively making up the host data center and the Co-Branded
Site accessible to the Customers. Stockwalk shall use reasonable commercial
efforts to ensure that the Co-Branded Site is operational on a "continuous"
basis in accordance with the Performance Standards provided in Exhibit A.
3.5.4 CO-BRANDED SITE CONTENT. During the term hereof and provided
there is no breach by Company hereunder, Stockwalk shall provide the
Stockwalk Services to Customers via the Co-Branded Site. Unless otherwise
directed by Company, the Co-Branded Site shall include substantially all of
the functionality and content available on the Stockwalk Site, and the
Stockwalk Services shall be updated to keep the Co-Branded Site in parity
with the Stockwalk Site in all material respects.
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3.5.5 NAVIGATION. Stockwalk shall not, in conjunction with the
Stockwalk Service, use any interstitials, pop-up windows, other
intermediate steps or any other technology or content which acts as a
barrier to the transition of a Customer from a participating Institution's
Site to the Co-Branded Site, or vice versa, nor shall Stockwalk otherwise
frame the Co-Branded Site with any frames other than Company's Exterior
Page Frames or use any other technology which materially interferes with or
affects the page layout of such pages. The Co-Branded Site shall link back
to corresponding Institution's Site.
3.6 DEVELOPMENTAL COSTS. Unless otherwise specified, each Party shall be
responsible for all development, hosting and other costs associated with the
Site residing on their servers.
3.7 CUSTOMER Relations. Stockwalk shall be responsible for providing all
customer support regarding the Stockwalk Services or the Co-Branded Site, and
Company or Institution shall redirect to Stockwalk any and all associated
customer support inquiries. Stockwalk shall have sole control over the Customer
agreement that governs the Stockwalk Service, and Stockwalk shall have the sole
responsibility for dealing with breaches of such Customer agreement. All
Customers shall be treated at least as favorable in all material respects
(including without limitation with respect to pricing, quality of service, and
customer support responsiveness) as Stockwalk treats users of the Stockwalk
Site.
3.8 CO-BRANDED STATEMENT. To the extent permissible by applicable
regulations, Stockwalk shall co-brand its monthly statements and other written
materials sent to Customers with the names of Company and the applicable
participating Institution provided that the inclusion of such items shall not
imply that Company or the Institution is providing any of the Stockwalk
Services.
3.9 CONFORMITY TO SPECIFICATIONS, CHANGES. The Parties acknowledge that
these creative processes are interactive and nonlinear, and that neither the
final work products nor the processes of creation will necessarily conform in
all particulars to the specifications on Schedule 2. Notwithstanding the
foregoing, the Parties agree that the final work products must perform the
functions contemplated by this Agreement in a manner, which complies with all
applicable rules and regulations and allows for reasonable commercial
exploration of the relationship among the Parties. Each Party shall pay for its
own expense of the joint development work, subject to Section 5.1.
SECTION 4. IMPLEMENTATION
4.1 Links. Company will assist Institutions to implement Stockwalk's normal
and customary promotional program through which Institution and Stockwalk will
encourage Customers to use the Stockwalk Services offered on the Co-Branded
Site, as accessed through a link from the participating Institution's Site. It
is the intent of the Parties that Company and
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Stockwalk will cooperate in the development of such promotional program, with
the goal of launching the program concurrently with the Commencement Date.
4.2 STOCKWALK BANNER LINKS. Stockwalk shall deliver to Company any
promotional materials (including Stockwalk Banners), which may be used as part
of the promotional program as provided in Section 4.1 above. Such banners shall
comply with Company's then current technical standards. The terms of any
insertion order or similar document regarding the Stockwalk Banners are
expressly rejected, except to the extent that they specify the location, timing
or duration of the display of the Stockwalk Banners and such terms are accepted
by Company. Unless mutually agreed otherwise, Stockwalk Banners shall link to
the applicable Co-Branded Site of the Institution on whose Site the Stockwalk
Banners are placed. Company may request that Stockwalk Banners be co-branded
with Company Marks, in which case the Parties shall work together to develop a
mutually acceptable implementation. Company may approve or reject any Stockwalk
Banner or its location on the Company Web pages or the Institution's Web pages
in its sole discretion; provided however that all banners shall comply with any
applicable laws, rules or regulations.
4.3 TESTING. Company will test the links with respect to the Co-Branded
Site, including through the Stockwalk Banner connection, required under the
Agreement at least one week prior to the Launch Date for the Co-Branded Site and
provide Stockwalk with the results of said testing as such testing occurs.
4.4 CONSENT TO LINKS. Company will not cause any link to the Co-Branded
Site to be added without the prior written consent of Stockwalk, which may not
be unreasonably withheld, or go live prior to the applicable date agreed to by
the Parties.
4.5 TIME OF ESSENCE. The Parties acknowledge that time is of the essence in
the design, development and commencement of the Co-Branded Site and the links
thereto. Accordingly, the Parties will devote commercially reasonable efforts to
launch the Co-Branded Site and the links thereto as soon as reasonably possible,
in accordance with a written development plan to be negotiated by the Parties in
good faith.
SECTION 5. COMPENSATION; ADVERTISING
5.1 MARKETING EXPENDITURES. During the one year period following the Launch
Date, Company agrees to expend up to $10,000 on marketing and promotion of the
Stockwalk Services; provided however, that the $10,000 required marketing amount
shall be reduced by $1 for each Customer that has registered to use the
Stockwalk Services as of one year following the Launch Date.
5.2 TRANSACTION FEES. During the term of this Agreement, including any
renewal term, Stockwalk will pay Institution a fee based on usage of the
Stockwalk Services by Customers ("Transaction Fee"). Such Transaction Fee shall
be equal to Four Dollars ($4) for
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each completed securities transaction through the Co-Branded Site. No
Transaction Fee shall be due with respect to a transaction if the transaction by
the Customer generates no revenue to Stockwalk. Stockwalk will pay the
Transaction Fee on a monthly basis, in arrears, within fifteen (15) days
following the end of each calendar month occurring subsequent to the
Commencement Date. Each monthly payment shall equal the number of completed
transactions in the immediately preceding calendar month multiplied by the
appropriate dollar amount. Stockwalk will deliver, together with each payment, a
report in an electronic form that is easily decoded in an automated manner for
import into a statistics database and that describes in reasonable detail
Stockwalk's calculation of the payment amount. All other fees as between
Institution and Company shall be the subject of the agreement between
Institution and Company; provided, however, that Stockwalk shall assist in any
payment arrangements reasonably requested by Institution for the convenience of
the Parties.
5.3 ADVERTISING. Company shall have sole control over all advertising and
promotion inventory on the Co-Branded Site. Stockwalk shall not introduce any
advertising spots or third party branding in conjunction with the Co-Branded
Site, e-mail, or the Stockwalk Services without Company's prior written
approval.
5.4 COMPLIANCE WITH LAWS. The consideration payable to Company and to
Institution pursuant to this Agreement and the Networking/Affiliation Agreements
shall be in compliance with all laws, rules, regulations, and other applicable
standards of conduct in regard to Institution activities and broker-dealer
activities (including, without limitation, the rules and regulations, and
interpretive guidance issued by the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc., the Office of Thrift
Super-vision, the Federal Reserve Board, and the Office of Comptroller of
Currency).
SECTION 6. TRAFFIC DATA AND REPORTING
On the tenth (10th) day of each month during the term hereof, Company will
provide Stockwalk with data (the form and content mutually agreed to by both
Parties) concerning search and browsing behavior only to the extent that such
behavior reasonably could directly relate to the online promotion or usage of
the Stockwalk Services. Stockwalk will hold such data in confidence and will
treat such information as Confidential Information under Section 1.1.
SECTION 7. REPRESENTATIONS AND WARRANTIES; RESTRICTIONS
7.1 GENERAL. Company and Stockwalk each represents and warrants that (a) it
is an entity duly organized, validly existing, and in good standing under the
laws of the state of its organization, and (b) that the execution and delivery
of this Agreement and the Other Agreements (to the extent they are a party to
such agreements), and the performance of the transactions contemplated hereby
and the Other Agreements (to the extent they are a party to such agreements),
are within its powers, have been duly authorized by all necessary corporate
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and/or shareholder action, do not require any consent or other action by and in
respect of or filing with any third party or governmental body or agency and do
not contravene, violate or conflict with or constitute default under any
provision of applicable law, regulation, or published interpretive guidance or
ruling. Company and Stockwalk further represent and warrant that they shall
conduct the business contemplated by this Agreement and the Other Agreements (to
the extent they are a party to such agreements) only in compliance with all
applicable law, rules, regulations, industry standards and published
interpretive guidance and rulings.
7.2 SPECIAL ACKNOWLEDGEMENTS. The Parties acknowledge the following:
a. Stockwalk shall be responsible for advertising and sales materials
(such as brochures, pamphlets, statement stuffers, and advertisements,
marketing materials for sales forces) relative to the Stockwalk
Services that are published by Company or Institution pursuant to this
Agreement, except for any advertising included in the Exterior Page
Frames. Company shall pay any publishing costs associated with the
advertising and sales materials. Stockwalk represents and warrants
that the advertising and sales materials have been approved by
Stockwalk.
b. Company and Institution, and their Affiliates and employees, will not
describe the Stockwalk Services other than to distribute promotional
materials approved by Stockwalk.
c. All advertising or sales materials will clearly indicate that the user
of any of Stockwalk Services will be a brokerage customer of Stockwalk
and not of any of the Institution or Company with respect to
securities transactions.
d. Company and Institution, and their Affiliates and employees, will not
recommend or endorse specific securities.
e. Company and Institution, and their Affiliates and employees, will not
take part in the Stockwalk Services (other than for their own accounts
or other than by routing information and keeping records for
Customers).
f. All questions regarding a Customer brokerage account will be directed
to Stockwalk's customer support personnel and Company and Institution,
and their Affiliates and employees, will not answer questions or
engage in negotiations involving brokerage accounts or related
securities transactions.
g. All decisions regarding the selection of broker-dealer or market will
be made by Customers or by Stockwalk. Neither Company nor Institution
will accept
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orders, select among broker-dealers or route orders for Customers to
markets for executions.
h. Company and Institution will not handle Customer funds or securities
related to securities orders transmitted to Stockwalk or effect
clearance or settlement of Customer trades.
i. Neither Company nor Institution will extend credit to Customer for the
purpose of purchasing securities through or carrying securities with
Stockwalk.
j. The fees paid by Stockwalk to Institution will not vary depending upon
the number of shares or the value of the underlying securities.
k. Stockwalk represents and warrants that the Stockwalk Services will
perform substantially as Stockwalk has marketed and promoted to
Cavion.
SECTION 8. INDEMNIFICATION
8.1 STOCKWALK INDEMNIFICATION. Stockwalk will defend and indemnify Company,
Institutions, and their Affiliates (and their respective employees, directors
and representatives) against any claim or action brought by a third party
(including Customers), to the extent relating to (a) the operation of the
Stockwalk Services and the Co-Branded Site, (b) the violation of third-party
intellectual property rights by materials provided by Stockwalk to Company for
promotion and advertising pursuant to this Agreement and for display on the
Co-Branded Site and the Stockwalk Banners, or (c) breach by Stockwalk of any of
the terms of this Agreement or the Networking/Affiliation Agreement. Subject to
Company's compliance with the procedures described in Section 8.3, Stockwalk
will pay any award against Company or its Affiliates (or their respective
employees, directors or representatives) and any costs and attorneys' fees
reasonably incurred by Company and its Affiliates resulting from any such claim
or action.
8.2 COMPANYINDEMNIFICATION. Company will defend and indemnify Stockwalk and
its Affiliates (and their respective employees, directors and representatives)
against any claim or action brought by a third party, to the extent relating to
(a) the operation or design of Company Sites, (b) breach by Company of any of
the terms contained in this Agreement or its Agreements with Institutions or (c)
the violation of third-party intellectual property rights by any materials
provided by Company for display on the Co-Branded Site or promotion of the
Stockwalk Services. Subject to compliance by Stockwalk with the procedures
described in Section 8.3, Company will pay any award against Stockwalk and its
Affiliates (or their respective employees, directors or representatives) and any
costs and attorneys' fees reasonably incurred by Stockwalk and its Affiliates
resulting from any such claim or action.
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8.3 INDEMNIFICATION PROCEDURES. In connection with any claim or action
described in this Section, the Party seeking indemnification (a) will give the
indemnifying Party prompt written notice of the claim, (b) will cooperate with
the indemnifying Party (at the indemnifying Party's expense) in connection with
the defense and settlement of the claim, and (c) will permit the indemnifying
Party to control the defense and settlement of the claim, provided that the
indemnifying Party may not settle the claim without the indemnified Party's
prior written consent (which will not be unreasonably withheld). Further, the
indemnified Party (at its cost) may participate in the defense and settlement of
the claim.
SECTION 9. INTELLECTUAL PROPERTY RIGHTS
9.1 STOCKWALK'S GRANT OF LICENSE. Stockwalk hereby grants to Company,
during the term of this Agreement, non-exclusive, non-transferable licenses to
display it's Stockwalk Marks as reasonably necessary for Company to perform its
obligations under this Agreement; provided, however, that use of such Stockwalk
Marks or promoting Stockwalk Services shall be subject to the prior written
approval of Stockwalk, as provided in Section 3.3.
9.2 COMPANY'S GRANT OF LICENSE. Company hereby grants to Stockwalk, during
the term of this Agreement, a non-exclusive, non-transferable license to display
the Exterior Page Frames and the Company Marks as is reasonably necessary for
Stockwalk to perform its obligations under this Agreement and the
Networking/Affiliation Agreements; provided, however, that any promotional
materials containing Company's proprietary marks will be subject to Company's
prior written approval.
9.3 RESERVATION OF RIGHTS. Subject to the limited license granted to
Stockwalk under this Section, Company reserves all of its right, title and
interest in its intellectual property rights (e.g., patents, copyrights, trade
secrets, trademarks and other intellectual property rights). Subject to the
limited license granted to Company under this Section, Stockwalk reserves all of
its night title and interest in its intellectual property rights. No Party
grants to any other Party any right, title and interest in intellectual property
rights or any licenses except as specifically set forth in this Section.
9.4 NO DISPARAGEMENT. No Party will display another Party's proprietary
marks in a manner that disparages the other Party or its products or services,
or portrays the other Party or its products or services in a false,
competitively adverse or poor light. A Party will comply immediately with
another Party's requests as to the display of the other Party's proprietary
marks and will avoid any action that diminishes the value of such marks. Any
Party's unauthorized display of another Party's proprietary marks is strictly
prohibited.
9.5 STANDARDS. Stockwalk shall not knowingly provide Stockwalk Services or
operate the Co-Branded Site in a manner, and Company shall not knowingly provide
to Stockwalk any Exterior Page Frames, that: (a) infringe any third party's
intellectual property right or right of publicity or privacy; (b) violate any
law or regulation; (c) are defamatory,
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obscene, harmful to minors or pornographic in nature; or (d) are materially
false, inaccurate or misleading.
9.6 INJUNCTIVE RELIEF. Each Party agrees that any unauthorized use or
display of the other Party's Marks or the Institution's Marks may cause
immediate and irreparable harm for which money damages may not constitute an
adequate remedy. In that event, each Party agrees that injunctive relief may be
warranted in addition to any other remedies the affected Party may have.
SECTION 10. TERM AND TERMINATION
10.1 TERM. The term of this Agreement will begin on the date of this
Agreement and, unless terminated or renewed in accordance with Section 10.2 or
10.1 respectively, will end three (3) years from the Commencement Date.
Subsequently, this Agreement will automatically renew for additional one (1)
year terms upon each expiration, unless, (i) earlier terminated pursuant to
Section 10.2 or (ii) at least ninety (90) days prior to the beginning of any
renewal term, one Party gives the other Party written notice of its intent not
to renew the Agreement.
10.2 TERMINATION. Either Party may terminate this Agreement: (a) if the
other Party materially breaches this Agreement (other than as provided in
Section 14.6) and does not cure the breach within thirty (30) days following its
receipt of written notice from the non-breaching Party or fifteen (15) days in
the case of a breach of one of the Performance Standards in Exhibit A; (b) if a
Party ceases to carry on the portion of its business that relates to this
Agreement, (c) immediately as provided in Section 14.6, (d) immediately if the
other party voluntarily or involuntarily files for bankruptcy, (e) immediately
if Stockwalk materially changes the Stockwalk Services, (f) upon 120 days'
written notice, (g) immediately if the Launch Date does not occur on or before
six months following, the date of Agreement. The Parties agree that all Parties
shall be addressed on all correspondence and other notices relating to breach of
this Agreement. A non-breaching Party may, but is not required to, cure a
breach, in its sole discretion (if it is capable of effecting a cure), within
the requisite time period after receipt of notice, and in such event, notice of
termination shall be ineffective. Recovery by the curing Party from the
breaching Party shall be governed by the Dispute Resolution procedures set forth
in this Agreement.
10.3 EFFECTS OF TERMINATION. Upon expiration or termination, all licenses
granted hereunder shall terminate unless such licenses are expressly stated as
surviving. Stockwalk shall promptly remove all Company Marks and Exterior Page
Frames from its servers, and Company shall promptly remove all Stockwalk Marks,
Stockwalk Banners from its servers. Any obligation to pay any owed but unpaid
amounts, shall survive any expiration or termination.
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10.4 SURVIVAL. The obligations of Sections 8 (indemnification), 9.4 (Mark
disparagement), 9.6 and 11.5 (injunctions), I 1 (Confidential Information), 10.3
(effects of termination), 12 (dispute resolution), 13.2 (limitations of
liability), and this Section 10.4 shall survive the termination of this
Agreement.
SECTION 11. CONFIDENTIAL INFORMATION
11.1 The parties acknowledge and agree that the terms of this Agreement and
all information provided to or in connection with either Party's performance
under this Agreement shall be considered confidential and proprietary
information ("Confidential Information") and shall not be disclosed to any third
party without the prior written consent of the Party providing the Confidential
Information (the "Disclosing Party"). Confidential Information shall include,
without limitation: (1) names, addresses, and demographic, behavioral, credit
information, and any other information relating to Customers or potential
Customers; (ii) Stockwalk's communication materials and issuance strategies or
methods; (iii) each Party's trade secrets, including but not limited to,
financial business objectives, assets and properties, processes, formulas,
specifications, programs, instructions, source code, technical knowhow, methods
and procedures for operation, benchmark test results, information about
employees, customers, strategies, services, business or technical plans and
proposals in any form; and (iv) programming techniques and technical,
development, cost and processing information.
11.2 The Party receiving such Confidential Information (the "Receiving
Party") shall use Confidential Information only for the purpose of performing
the terms of this Agreement and shall not accumulate in any way or make use of
Confidential Information for any other purpose. The Receiving Party shall ensure
that only its employees, authorized agents, or subcontractors who need to know
Confidential Information to perform this Agreement will receive Confidential
Information and that such persons agree to be bound by the provisions of this
Paragraph and maintain the existence of this Agreement and the nature of their
obligations hereunder strictly confidential.
11.3 The obligations with respect to Confidential Information shall not
apply to information that: (1) either Party or its personnel already know at the
time it is disclosed as shown by their written records; (ii) is publicly known
without breach of this Agreement; (iii) either Party received from a third party
authorized to disclose it without restriction; or (iv) either Party, its agents
or subcontractors, developed independently without use of Confidential
Information.
11.4 It is not a breach of this Agreement to disclose Confidential
Information if such disclosure is required by law, regulation or valid court or
Governmental agency order or request to disclose, in which case the Party
receiving such an order or request, to the extent practicable, must give notice
to the other Party, allowing, them to seek a protective order.
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11.5 Each Party agrees that any unauthorized use or disclosure of
Confidential Information may cause immediate and irreparable harm to the
Disclosing Party for which money damages may not constitute an adequate remedy.
In that event, each Party agrees that injunctive. relief may be warranted in
addition to any other remedies the Disclosing, Party may have. In addition, the
Receiving Party agrees promptly to advise the Disclosing Party in writing of any
unauthorized misappropriation, disclosure or use by any person of the
Confidential Information which may come to its attention and to take all steps
at its own expense reasonably requested by the Disclosing Party to limit, stop
or otherwise remedy such misappropriation, disclosure or use.
11.6 Upon either Party's demand, or upon the termination of this Agreement,
the Parties shall comply with each other's reasonable instructions regarding the
dispositions of Confidential Information, which may include return of any and
all Confidential Information (including any copies or reproductions thereof.
Such compliance shall be certified in writing, including a statement that no
copies of confidential information have been kept.
11.7 Except as necessary for its performance under this Agreement, a Party
may not use the name of any other Party or its Affiliates in connection with any
representation, publication or advertisement, or make any public statement
relating to any other Party or its Affiliates without the prior full disclosure
of same to the named Party, and the prior written consent of the named Party.
11.8 Following the execution of this Agreement, the Parties will prepare
and distribute a joint press release (or coordinated press releases) announcing
the transaction. The contents and timing of the release (or releases) shall be
as mutually agreed by the Parties. Neither Party will issue any further press
releases or make any other disclosures regarding this Agreement or its terms
without the other Party's prior written consent, which consent shall not be
unreasonably withheld or delayed.
SECTION 12. DISPUTE RESOLUTION
12.1 In all discussions and activities relating to this Agreement, the
Parties will cooperate in good faith to accomplish the objectives specified in
this Agreement. If any dispute arises relating to either Party's rights or
obligations under this Agreement, and the Parties are unable to resolve the
dispute in the ordinary course of business, the Parties will use good-faith
efforts to resolve the matter by informal means, as set forth in Section 12.2
prior to commencing a formal dispute resolution proceeding or legal action in
accordance with this Section.
12.2 Any controversy or claim between or among the Parties, arising from or
in connection with this Agreement whether based on contract, tort, common law,
equity, statute, regulation, order or otherwise ("Dispute") shall be resolved as
follows:
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a. Upon written request of any Party, a duly appointed representative(s)
of each Party will meet for the purpose of attempting to resolve such
Dispute. Should they be unable to resolve the Dispute, a senior
executive of each Party (the "Executives") will meet in an effort to
resolve the Dispute. Said meeting shall be in person or by telephone.
b. The Executives shall meet as often as the Parties agree to discuss the
problem in an effort to resolve the Dispute without the necessity of
any formal proceeding.
c. Formal proceedings for the resolution of a Dispute may not be
commenced until the earlier of.
(i) the Parties concluding in good faith that amicable resolution
through the
(ii) procedures set forth in subsections (a) (b) hereof does not
appear likely; or
(iii) the expiration of the fifteen (15) business day period
immediately following the initial request to negotiate the Dispute;
provided, however, that this Section 12.2 will not be construed to prevent a
Party from instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors, or to seek temporary or preliminary injunctive relief.
12.3 ARBITRATION.
a. If the Parties are unable to resolve any Dispute as contemplated by
Section 12.2; such Dispute shall be submitted to mandatory and binding
arbitration at the election of any Party (the "Disputing Party").
Except as otherwise provided in this Section, the arbitration shall be
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association ("AAA").
b. To initiate arbitration, the Disputing Party shall notify the other
Party in writing (the "Arbitration Demand"), which shall (i) describe
in reasonable detail the nature of the Dispute, (ii) state the amount
of the claim, and (iii) specify the requested relief. Within fifteen
(15) days after receipt of the Arbitration Demand by each other Party,
each other Party shall file, and serve on the Disputing Party, a
written statement (A) answering the claims set forth in the
Arbitration Demand and including any affirmative defenses of such
Party; (B) asserting any counterclaim, which shall (1) describe in
reasonable detail the nature of the counterclaim, (2) state the amount
of the counterclaim, and (3) specify the requested relief.
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c. If the net amount of the controversy set forth in each claim and each
counterclaim is less than $100,000, then the matter shall be resolved
by a single arbitrator selected pursuant to the rules of the AAA.
d. If the amount of the controversy set forth in either the claim or
counterclaim is equal to or exceeds $100,000, then the matter shall be
resolved by a panel of three arbitrators (the "Panel") selected
pursuant to the rules of the AAA. Decisions of a majority of the
members of the Panel shall be determinative.
e. The arbitration hearing shall be held in Minneapolis, Minnesota if
initiated by Company and in Denver, Colorado if initiated by
Stockwalk. The Panel is specifically authorized in proceedings
pursuant to subsection (d) to render partial or full summary judgment
as provided for in the Federal Rules of Civil Procedure. The Federal
Rules of Evidence shall apply to the arbitration hearing. The Party
bringing a particular claim or asserting an affirmative defense will
have the burden of proof with respect thereto. The arbitration
proceedings and all testimony, filings, documents and information
relating to or presented during the arbitration shall be deemed to be
information subject to the confidentiality provisions of this
Agreement. The Panel will have no power or authority, under the
Commercial Arbitration Rules of the AAA or otherwise, (i) to relieve
the Parties from their agreement to arbitrate or (ii) to otherwise
amend or disregard any provision of this Agreement, including, without
limitation, the provisions of this Section.
f. Should an arbitrator refuse or be unable to proceed with arbitration
proceedings as called for by this Section, the arbitrator shall be
replaced pursuant to the rules of the AAA If an arbitrator is so
replaced after the arbitration hearing has commenced, then a rehearing
shall take place in accordance with this Section and the Commercial
Arbitration Rules of the AAA.
g. At the time of granting or denying a motion of summary judgment as
provided for in (e) and within fifteen (15)days after the closing of
the arbitration hearing, the arbitrator or Panel will prepare and
distribute to the Parties a writing setting forth the arbitrator's or
Panel's finding of facts and conclusions of law relating, to the
Dispute, including the reasons for the giving or denial of any award.
The findings and conclusions and the award, if any, shall be deemed to
be information subject to the confidentiality provisions of this
Agreement.
h. The arbitrator or Panel is instructed to schedule promptly all
discovery and other procedural steps and otherwise assume case
management initiative and control to effect an expeditious resolution
of the Dispute. The arbitrator or Panel is authorized to issue
monetary sanctions against any Party if, upon a showing of good cause,
such Party is unreasonably delaying the proceeding.
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i. Any award rendered by the arbitrator or Panel will be final,
conclusive and binding upon the Parties and any Judgment thereon may
be entered and enforced in any court of competent jurisdiction.
j. Each Party will bear a pro rata share of all fees, costs and expenses
of the arbitrators, and notwithstanding any law to the contrary, each
Party will bear all the fees, costs and expenses of its own attorneys,
experts and witnesses except as provided in Section 14.5; provided,
however, that in connection with any judicial proceeding to compel
arbitration pursuant to this Agreement or to confirm, vacate or
enforce any award rendered by the arbitrator or Panel, the prevailing
Party in such a proceeding shall be entitled to recover reasonable
attorneys' fees and expenses incurred in connection with such
proceedings, in addition to any other relief to which it may be
entitled.
SECTION 13. DISCLAIMERS, LIMITATIONS AND RESERVATIONS,
13.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES HERETO DO
NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE
SERVICES TO BE PROVIDED PURSUANT HERETO OR ANY PORTION THEREOF, INCLUDING
(WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
PARTIES HERETO SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING
(A) THE AMOUNT OF REVENUE THAT THE OTHER PARTY HERETO MAY RECEIVE DURING THE
TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY HERETO MIGHT
OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
13.2 NO PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR CONSEQUENTIAL, SPECIAL,
OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA)
ARISING OUT OF THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY'S TOTAL LIABILITY
TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED $1,000.
13.3 Stockwalk will be solely responsible for the operation of the
Stockwalk Services and subject to the specific terms of this Agreement, shall
retain sole right and control over the programming, content and conduct of
transactions occurring on the Co-Branded Site, except for the Exterior Page
Frames.
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SECTION 14. MISCELLANEOUS
14.1 RELATIONSHIP OF PARTIES. The Parties are entering this Agreement as
independent contractors, and this Agreement will not be construed to create a
partnership, joint venture, franchise or employment relationship between them.
Neither Party will represent itself to be an employee or agent of the other or
enter into any agreement on the other's behalf of or in the other's name.
14.2 COMPLIANCE WITH LAW. In its performance of this Agreement, each Party
will comply with all applicable laws, regulations, orders and other
requirements, now or hereafter in effect, of governmental authorities having
Jurisdiction. Without limiting the generality of the foregoing, each Party will
pay, collect and remit such taxes as may be imposed upon it with respect to any
compensation, royalties or transactions under this Agreement. At its own
expense, Stockwalk shall comply with all applicable laws and governmental and
Self Regulatory Organization (SRO) regulations regarding providing and operating
the Stockwalk Services. Without limiting, the foregoing, (a) Stockwalk shall use
its best efforts to obtain all governmental and SRO approval, permits and
licenses, and make all governmental and SRO filings and registrations, necessary
for the marketing and performance of the Stockwalk Services in every United
States jurisdiction and (b) each Party shall promptly resolve any assertions
that its services are illegal or violating a protected third party interest.
14.3 NOTICES. Notices deliverable under this Agreement shall be given in
writing, addressed to the Parties and shall be deemed to have been given either
one (1) day after being given to an express overnight carrier with a reliable
system for tracking delivery; or when sent by a confirmed facsimile with another
copy sent by any other means specified in this paragraph; or three (3) business
days after having been mailed postage prepaid by United States registered or
certified mail.
14.4 ATTORNEYS' FEES. If any litigation or arbitration is commenced to
enforce any provision of this Agreement or to seek a declaration of rights of
the Parties hereunder or as a result of any breach of any provisions of this
Agreement, the prevailing Party will be entitled to recover from the
non-prevailing Party all of its costs and expenses incurred in connection with
such litigation or arbitration, including without limitation reasonable
attorneys' fees.
14.5 RECORDS; AUDITS. Each Party shall keep detailed records of all
activities reasonably relating to its performance under this Agreement
("Records"). Either Party (the "Auditing Party"), upon thirty (30) days' prior
written notice to the other Party (the "Audited Party"), may conduct an audit of
the Audited Party's Records for the purpose of verifying the accuracy and
completeness of any report or other information provided by the Audited Party
under this Agreement. Any such audit will be conducted (a) in a manner that will
not unreasonably interfere with the Audited Party's operations, and (b) by an
independent certified public accounting firm that is reasonably acceptable to
the Audited Party and that has agreed in writing to protect the confidentiality
of the Audited Party's Records and other information. A
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Party may conduct an audit under this Section no more than once during any
12-month period. The costs of any such audit will be borne by the Auditing
Party; provided, however, that if any audit determines that the report or other
information subject to the audit is material and inaccurate or incomplete by
greater than ten percent (1O%) (as measured by an appropriate measure reasonably
determined by the auditor), the Audited Party will promptly reimburse the
Auditing Party for all reasonable expenses incurred to conduct the audit.
14.6 FORCE MAJEURE. No Party will be liable for, or will be considered to
be in breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement as a result of any causes or
conditions that are beyond such Party's reasonable control and that such Party
is unable to overcome through the exercise of commercially reasonable diligence.
If any force majeure event occurs, the affected Party will give prompt written
notice to the other Party and will use commercially reasonable efforts to
minimize the impact of the event. However, if a force majeure event
detrimentally affects a Party's performance of a material covenant set forth in
Section 3 and Exhibit A for ten (10) days or more, the other Party can terminate
this Agreement, as provided in Section 10.2 above.
14.7 ASSIGNMENT. This Agreement may not be assigned, in whole or in part,
by either Party or by operation of law unless the other Party consents to the
assignment, which consent shall not be unreasonably withheld or delayed. Subject
to the foregoing, this Agreement will be binding on and enforceable by the
Parties and their respective successors and permitted assigns. Notwithstanding
the foregoing, either Party hereto may assign this Agreement to (a) any entity
resulting from any merger, consolidation or other reorganization involving the
assigning Party, (b) any of its Affiliates, or (c) any individual or entity to
which the assigning Party may transfer substantially all of its assets; provided
that (i) the assignee agrees in writing to be bound by all the terms and
conditions of this Agreement, and (ii) the entity assigning this Agreement gives
prompt written notice to the other party.
14.8 NO WAIVER. The failure of either Party to enforce any provision of
this Agreement will not constitute a waiver of the Party's rights to
subsequently enforce the provision. The remedies specified in this Agreement are
in addition to any other remedies that may be available at law or in equity.
14.9 SEVERABILITY. If any provision of this Agreement is declared null,
void or otherwise unenforceable, such provision will be deemed to have been
severed from this Agreement to the minimal extent if necessary, which Agreement
will otherwise be and remain in full force and effect to its remaining
provisions.
14.10 INTEGRATION. This Agreement (a) represents the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
previous or contemporaneous oral or written agreements regarding such subject
matter and (b) may be amended or modified only by a written instrument signed by
a duly authorized agent of each Party.
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14.11 CHOICE OF LAW. This Agreement will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of New York
without reference to its choice of law rules. If any provision of this Agreement
is held to be invalid, such invalidity will not effect the remaining provisions.
The Parties have executed this Agreement on the date first written above.
CAVION TECHNOLOGIES, INC., a Colorado
corporation
By David J. Selina:
---------------------
Its President and Chief Operating
Officer/CEO
7475 Dakin Street, Suite 607
------------
Denver, Colorado 80221
Facsimile: (303) 657-8210
STOCKWALK.COM.INC.
By Robert J. Vosburgh
-------------------
Its Chief Operating Officer
-------------
5500 Wayzata Blvd.
Suite 620
Minneapolis, MN 55416
Facsimile: (877) 482-0540
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SCHEDULE 1
Title Parties Date
----- ------- ----
Co-Marketing Agreement Company & each
Participation
Institution
Company Master Services Agreement Company & each
Participation
Institution
Networking/Affiliation Agreement Stockwalk & Institution
<PAGE>
SCHEDULE 2
GENERAL SPECIFICATIONS AND TIMETABLE
Stockwalk Project Task End Date
---------------------- --------
Assign Relationship Manager Day 1
Apply for domain name Day 4
Initial press release Day 5
IT Due Diligence Day 14
Create site prototype Day 15
Site testing Day 45
Launch Day 60
Post-launch marketing Day 61
<PAGE>
SCHEDULE 2.3
LINKS, ADVERTISEMENTS AND OTHER PROMOTIONAL PLACEMENTS
AND
COMPANY'S MARKETING EFFORTS
<PAGE>
SCHEDULE 2.4
COMPANY MARKS
<PAGE>
SCHEDULE 2.7
STOCKWALK MARKS
<PAGE>
EXHIBIT A
PERFORMANCE STANDARDS
The parties hereto agree that as of the Launch Date the following performance
standards shall be applicable to the Co-Branded Site:
A. SERVICE AVAILABILITY. The Stockwalk Services generally shall be publicly
available to Customers in an amount no less than is standard in the
industry, excluding "Maintenance." Maintenance is defined as scheduled
Stockwalk Services outages for Stockwalk Services maintenance or upgrades
of which Company is notified at least 24 hours in advance, so long as such
outages are scheduled for low-usage time periods and do not exceed a total
of 10 hours in any 30 day period.
B. RESPONSE TIME. Stockwalk shall use its best efforts to maintain a mean
response time for server response to access the Stockwalk Services not to
exceed a time period to be mutually agreed on by both Parties, but no
longer than industrystandard.
C. BANDWIDTH. Throughout the term, Stockwalk shall use its best efforts to
have an agreement in place with its Internet connectivity provider which
requires such provider to automatically increase bandwidth capacity if such
capacity exceeds 25% utilization.
D. SECURITY. Stockwalk shall prevent unauthorized access to restricted areas
of its servers and any databases or other sensitive material generated from
or used in conjunction with the Stockwalk Services. In addition, Stockwalk
shall immediately notify Company of any known security breaches or holes in
the Stockwalk Service or any Co-Branded Site.
E. ERROR CORRECTION. Stockwalk shall resolve any errors with the Stockwalk
Services under its control (including, without limitation any Javascripts
or ActiveX controls used in connection with such pages) that cause such
services not to be able to perform one or more major functions within 24
hours of the earlier of its discovery of the error or Company's notice of
the error. Stockwalk shall resolve all other errors with such services
within seven (7) days of the earlier of its discovery of the error or
Company's notice of the error.
F. BROWSER COMPATIBILITY. The Stockwalk Services shall initially be compatible
with Netscape Navigator 3.X, 4.X, and higher versions and Microsoft
Internet Explorer 3.X, 4.X, and higher versions. The Parties may add
additional browsers or versions that the Stockwalk Services must be
compatible with, provided that such additional browsers or versions are
used by more than 5% of the Customers. Customers shall not require any
plug-ins in order to access any Stockwalk Services functionality.
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G. VOLUME SCALABILITY. Stockwalk shall use best efforts to implement necessary
hardware, application and network architecture and configuration required
to manage scalability and capacity issues associated with increased
transaction volumes.
H. DATA AUTHENTICATION. Stockwalk shall use best efforts, no less than
industrystandard, to authenticate the origin of all information provided by
Company as having come from Company.
I. CUSTOMER SUPPORT. Stockwalk shall use best efforts to respond to all
customer and technical support inquiries within 10 minutes of the receipt
of inquiry. Stockwalk shall manually respond to all customer account
inquiries within 24 hours. Stockwalk shall resolve all such inquiries
within 72 hours or shall notify Company that it cannot do so, in which case
Company at its sole discretion may intervene to assist in resolving the
inquiry.
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EXHIBIT B
COMPANY'S EXTERIOR PAGE FRAMES
<PAGE>
EXHIBIT C
FORM OF NETWORK/AFFILIATION AGREEMENT