Internet Marketing and Licensing Agreement - LendingTree Inc. and priceline.com Inc.
INTERNET MARKETING AND LICENSING AGREEMENT BETWEEN
LENDINGTREE, INC. AND PRICELINE.COM INCORPORATED
THIS INTERNET MARKETING AND LICENSING AGREEMENT (this "Agreement")
between LendingTree, Inc., a Delaware corporation with its principal place of
business at 6701 Carmel Road, Suite 205, Charlotte, NC 28226 ("LendingTree"),
and priceline.com Incorporated, a Delaware corporation with its principal place
of business at Five High Ridge Park, Stamford, CT 06903 ("Priceline"). This
Agreement shall be effective as of August 1, 1998 (the "Effective Date").
WITNESSETH:
WHEREAS, LendingTree has developed a multiple lender consumer loan
origination software program and a web site, currently located at
http://www.lendingtree.com, through which it acts as a mortgage loan broker or
loan broker offering consumers the opportunity to obtain competitive loan offers
from participating lenders in connection with various loan products, including
mortgage loans, home equity lines of credit, credit cards, automobile loans and
unsecured personal loans.
WHEREAS, Priceline has developed a web site, currently located at
http://www.priceline.com, which markets various products and services using a
"name your price" model. Priceline desires to make available to users of its web
site certain mortgage loan, home equity loan and home equity line of credit
products.
WHEREAS, LendingTree desires to expand its distribution channel for its
mortgage loan brokerage services via a co-branded web site hosted and marketed
by Priceline which employs Priceline's "name your price" model.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
agreements and respective representations and warranties contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Derivatives" means (i) for copyrightable or copyrighted
material, any translation, abridgment, revision, or other form
in which such material may be recast, transformed, or adapted
and any new material derived from such existing copyrightable
material; (ii) for patentable or patented material, any
improvement thereon; and (iii) for material or information
which is confidential, proprietary or trade secret, any new
material or information derived from such existing
confidential, proprietary or trade secret material, including
new material or information that are or may be protected by
copyright, patent and/or trade secret or similar laws, or
agreements providing for non-disclosure of any of the
foregoing.
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1.2 "Mortgage Content" means software applications and content, in
the form of various calculators and other interactive tools,
as well as articles regarding consumer credit and mortgages,
lender and product descriptions and other data, graphics, and
material provided by LendingTree from time to time for
incorporation into the Mortgage Web Pages.
1.3 "Mortgage Loan" means a loan made to a consumer borrower that
is secured by a Mortgage, deed of trust or other lien on
residential real property located in the United States of
America, including but not limited to, a first mortgage loan,
subordinate lien mortgage loan, home equity loan, and home
equity line of credit.
1.4 "Mortgage Web Pages" means the area of the Priceline web site
through which LendingTree will offer its mortgage brokerage
services. The Mortgage Web Pages will be co-branded by the use
of both parties' trademarks, tradenames, logos, or
designations, as agreed to by the parties in accordance with
the terms of this Agreement.
1.5 "Net Revenue" means the total of all revenue earned and
received by LendingTree from lenders, including but not
limited to transmission fees and loan origination fees, as a
result of its mortgage brokerage services in operating the
Mortgage Web Pages ("Revenue"), MINUS the actual cost of (i)
credit scores and credit report fees incurred by LendingTree,
and (ii) LendingTree's operation of a dedicated Mortgage Web
Pages customer service center, [**] (items (i) and (ii) of
this Section 1.5 being collectively referred to herein as the
"Revenue Deductions"). The parties hereto acknowledge that in
the start up of this relationship, there are likely to be
delays in LendingTree's receipt of Revenue. As such, the
parties intend and agree that any Revenue Deductions related
to these delays will be carried forward and offset against
Revenues received at a later date.
1.6 "Priceline Name Your Price/Conditional Purchase Model" means
the product distribution model utilized by Priceline on its
web site under which a consumer identifies a specific price
and terms under which he or she will purchase a product or
service, and Priceline attempts to find a seller willing to
sell the product or service to the consumer on the terms
identified by the consumer. In the context of this Agreement
and the Mortgage Web Pages, the term shall refer to a business
model in which (i) a consumer identifies Mortgage Loan terms,
including interest rate, points and loan term, under which he
or she is willing to obtain a specified Mortgage Loan. To the
extent permitted by applicable law, the Priceline Name Your
Price/Conditional Purchase Model may include the delivery to a
lender by the consumer of a fee to be used by that lender to
offset certain third party or other related costs or expenses,
all or a part of which fee may be forfeited by the consumer if
the loan fails to close due the substantial fault of the
consumer. In addition, the Priceline Name Your
Price/Conditional Purchase Model contemplates a counteroffer
process, wherein a lender, although unable to offer a consumer
the mortgage loan on the specific terms requested, is able to
provide the consumer with an acceptable counteroffer.
1.7 "LendingTree Model" means the product distribution model
utilized by LendingTree on its website wherein consumers
complete a qualification form encompassing product,
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rate, term and other preferences, along with traditional loan
application data and other information that LendingTree may
from time to time request, which information is then submitted
to a network of participating lenders who have previously
provided LendingTree with credit related criteria for use in
LendingTree's proprietary filtering system. The qualification
form along with certain credit report and credit scoring
information ("Consumer Information") is then presented to the
lenders who review that Consumer Information and bid for that
consumer's business.
1.8 "Proprietary Marks" means the trade names, servicemarks,
trademarks, tradenames, logos, emblems designations, and
indicia of origin specified in EXHIBIT A or subsequently
identified by written notice by the parties.
1.9 "Qualification Form" means a series of web pages utilized by
LendingTree on its web site to gather information from
consumers for the purpose of obtaining a prequalification or a
loan offer from a lender for a variety of consumer or mortgage
loans.
1.10 "Mortgage Web Pages Qualification Form" means a series of web
pages utilized or to be utilized by LendingTree in connection
with the Mortgage Web Pages
1.11 "Technical Contact" means the primary person from each party
responsible for facilitating communications between
LendingTree and Priceline and coordinating development of the
Mortgage Web Pages.
1.12 "Software" means the computer software of LendingTree, which
provides an on-line qualification form, certain investor
information, filters and other mechanisms that may allow
consumers to qualify for various consumer loan products. The
term "Software" includes all interpretive script, source code,
object code, screen displays, user manuals and other
documentation, and all modifications, enhancements and
revisions thereto.
2. LICENSES AND OWNERSHIP
2.1 PRICELINE LICENSES. During the term of this Agreement,
Priceline hereby grants to LendingTree (i) the exclusive right
and license in the United States to operate the Mortgage Web
Pages and (ii) the non-exclusive right and license in the
United States to utilize certain Priceline intellectual
property, including the Priceline Proprietary Marks, software
and the Priceline Name Your Price/Conditional Purchase
Marketing Model, in operating the Mortgage Web Pages
(collectively, the "Priceline Intellectual Property") in each
case subject to the terms and conditions of this Agreement.
2.2 LENDINGTREE LICENSE. During the term of this Agreement,
LendingTree hereby grants to Priceline the non-exclusive right
and license in the United States to utilize certain
LendingTree intellectual property, including but not limited
to the LendingTree Proprietary Marks, Software, and Mortgage
Content for use by Priceline in carrying out its duties under
this Agreement in connection with the Mortgage Web Pages
(collectively, the "LendingTree Intellectual Property"), in
each case subject to the terms and conditions of this
Agreement.
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2.3 INTELLECTUAL PROPERTY RIGHTS. All LendingTree Intellectual
Property are and will remain the sole and exclusive property
of LendingTree and its suppliers, if any. All Priceline
intellectual property are and will remain the sole and
exclusive property of Priceline and its suppliers, if any. Any
Derivatives created by either party regarding the intellectual
property of the other party shall become the exclusive
property of the original owner of the underlying intellectual
property.
3. PRICELINE'S DUTIES
3.1 TESTING, HOSTING, DESIGN AND MAINTENANCE OF THE MORTGAGE WEB
PAGES. During the term of this Agreement, Priceline in
consultation with LendingTree will be responsible for testing,
hosting and maintaining the Mortgage Web Pages to be designed
by Priceline based upon the substantive Mortgage Content to be
provided by LendingTree as required in Section 4.1 of this
Agreement. Priceline will host the Mortgage Web Pages on
servers that it owns or controls. Priceline will use best
efforts to make available to the public vis-a- vis the
Internet on the priceline.com Internet site, the Mortgage Web
Pages on a continuous basis. In addition, Priceline will
provide, maintain and manage by itself, or through its
authorized third parties, all servers, telecommunication
devices, facilities, technical support, maintenance and
operations as is reasonably needed to facilitate continuous
Internet access to the Mortgage Web Pages as herein described.
A fuller description of the specifications for the Mortgage
Web Pages shall be set forth in Exhibit B sometime prior to
the date on which the Mortgage Web Pages commence operation
over the Internet.
3.2 DEVELOPMENT EXPENSE. Priceline will be responsible for all
internal and third party costs and expenses incurred by it and
LendingTree in connection with the development and testing of
the Mortgage Web Pages. Any costs or expenses paid or incurred
by LendingTree as permitted by this section 3.2 shall be
subject to the prior approval of Priceline, which approval
shall not be unreasonably withheld or delayed.
3.3 ADVERTISING, MARKETING AND PROMOTION. Priceline will
advertise, market and promote the Mortgage Web Pages through
various media campaigns, including radio and print media (the
"Advertising Services"). LendingTree expressly acknowledges
and agrees that the Advertising Services may, in the
discretion of Priceline, be provided by Priceline in a
combination of (i) general brand advertising for the
priceline.com Internet site, (ii) advertising for the products
and services offered generally through such site, and (iii)
advertising that refers to particular products, including
those offered on the Mortgage Web Pages. All advertising
related to the Mortgage Web Pages will be subject to the prior
approval of LendingTree and its counsel, which consent and
approval shall not be unreasonably withheld or delayed.
Priceline is not obligated to expend any fixed sum with
respect to the provision of the Advertising Services, it being
understood that such Advertising Services will be provided by
Priceline as it determines, in its reasonable discretion.
Subject to the foregoing, the parties acknowledge and agree
that the annual market value of the Advertising Services will
be in an amount mutually agreed to by the parties, which
amount is currently projected to be approximately $12 million.
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3.4 LENDER INTRODUCTIONS. During the term of this Agreement,
Priceline will direct to LendingTree any inquiries from
lenders about the Mortgage Web Pages and opportunities to
offer mortgage loan products on the Mortgage Web Pages.
3.5 LEGAL COMPLIANCE. During the term of this Agreement, Priceline
shall be responsible for the compliance, in all material
respects, with federal, state and other laws and regulations
generally applicable to the priceline.com Internet site,
including all general advertising related thereto, including
general unfair and deceptive trade issues, consumer protection
issues and customer relations issues. Under no circumstances,
however, will Priceline be charged with responsibility for
compliance with federal, state or other laws or regulations
applicable to mortgage brokers, the offering of Mortgage Loan
products or any and all disclosure, notice or other
requirements applicable to mortgage brokers or the provision
of Mortgage Loan services to consumers generally, such
compliance being the obligation of LendingTree as provided in
Section 4.6 of this Agreement.
4. LENDINGTREE'S DUTIES
4.1 MORTGAGE WEB PAGES SUBSTANTIVE CONTENT; MORTGAGE LOAN
BROKERAGE SERVICES. With respect to the development of the
Mortgage Web Pages, it is expressly acknowledged and agreed to
between the parties that LendingTree will provide the
substantive Mortgage Content of the Mortgage Web Pages
Qualification Form related to the Mortgage Web Pages that are
to be developed by Priceline. The Mortgage Web Pages will
constitute the "front end" of LendingTree's mortgage brokerage
operations at the priceline.com Internet site. To the extent
permitted by applicable law, the Mortgage Web Pages will
incorporate the LendingTree Qualification Form and the
Priceline Name Your Price/Conditional Purchase Model. The
Mortgage Web Pages will have the same "look and feel" of other
areas of the priceline.com Internet site. The substantive
Mortgage Content utilized in the design and development of the
Mortgage Web Pages including, but not limited to, all issues
related to regulatory compliance shall be subject to the
review and approval of Priceline and its counsel, which shall
not be unreasonably withheld or delayed. A fuller description
of the specifications is set forth in EXHIBIT B. LendingTree
acknowledges and agrees that the Mortgage Web Pages as
designed by Priceline with the substantive content to be
provided by LendingTree will allow Mortgage Loans to be
offered through the Mortgage Web Pages by LendingTree in a
lawful manner that does not trigger any mortgage broker or
loan broker license or registration (or any consumer
disclosures, compliance or other requirements related thereto)
on the part of Priceline. LendingTree will operate the
Mortgage Web Pages and will act as the mortgage broker in
connection with all Mortgage Loan products offered on or
through the Mortgage Web Pages. LendingTree will at all times
maintain in all material respects compliance with applicable
federal and state laws and will maintain in good standing
requisite mortgage broker licenses, registrations, approvals
and exemptions, as applicable.
4.2 LENDER NETWORK MANAGEMENT. During the term of this Agreement,
LendingTree shall use best efforts to obtain and maintain
agreements with a sufficient number of lenders that offer
Mortgage Loan products through LendingTree on the Mortgage Web
Pages, as are necessary to support the LendingTree/Priceline
relationship. LendingTree agrees that lenders offering the
Mortgage Loan products on the Mortgage Web Pages shall,
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collectively, have the ability to promptly and efficiently
process and close Mortgage Loans from Mortgage Web Pages
Qualification Forms, submitted from consumers/ borrowers
representing eighty percent (80%) of the Priceline
consumer/borrower market (based upon FICO credit score).
Subject to the foregoing, the parties currently project that
the appropriate number of lenders is from five (5) up to and
including ten (10). LendingTree agrees that the minimum number
of lenders shall not be less than five (5) during the term of
this Agreement. LendingTree will accept recommendations from
Priceline regarding potential participating lenders and will
work in good faith to enter into agreements with such lenders
to enable them to offer their mortgage loan products through
LendingTree and the Mortgage Web Pages. LendingTree will be
responsible for all lender service issues, training of lender
staff, and analyzing lender performance. LendingTree will
invoice lenders and manage the collection of all fees.
No agreement entered into between LendingTree and any
participating lender in connection with the Mortgage Web Pages
will impose any obligation, duty or responsibility whatsoever
on Priceline, directly or indirectly, or limit or restrict in
any manner any of Priceline's legal rights or remedies,
including, without limitation, Priceline's right to terminate
this Agreement under Section 11 hereof.
4.3 CUSTOMER SERVICE. LendingTree will operate a customer service
center dedicated to the Mortgage Web Pages with sufficient
staff and resources necessary to handle the volume of customer
inquiries generated from the Mortgage Web Pages in a prompt
and efficient manner and in accordance with applicable
federal, state and other laws and regulations. The parties
will work to establish appropriate interfaces between
Priceline's existing customer service center and the
LendingTree customer service center. In addition, the parties
will work together to develop introductory scripts for
customer service calls, subject to the review and approval of
their respective attorneys.
4.4 CONTENT. As set forth in Sections 3.1 and 4.1 hereof,
LendingTree will provide the substantive Mortgage Content for
use on the Mortgage Web Pages.
4.5 BACK-END SOFTWARE. During the term of the Agreement,
LendingTree will provide and manage the "back-end" processing
software required to effect a system of communication between
Priceline and LendingTree and LendingTree and its lenders in
connection with the Mortgage Web Pages. LendingTree will
maintain back-end software processing capacity and reliability
at levels subject to the review and approval of Priceline.
4.6 LEGAL COMPLIANCE. During the term of this Agreement,
LendingTree shall be responsible for compliance, in all
material respects, with all applicable federal, state and
other laws and regulations for the Mortgage Web Pages or the
Mortgage Loan Products offered to consumers through the
Mortgage Web Pages, and will maintain in good standing
requisite mortgage broker licenses, registration, approvals
and exemptions relating to any of the foregoing. In addition,
LendingTree will review and approve all advertising developed
by Priceline that is specific to the Mortgage Web Pages to
achieve compliance with applicable federal, state and other
laws and regulations governing the offering of Mortgage Loan
products to the consumer. Further, LendingTree shall be
responsible for compliance with all consumer disclosure and
other laws and requirements applicable to
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all of the Mortgage Web Pages and the Mortgage Loan products
offered through the Mortgage Web Pages, except that should
Priceline launch any advertising that impacts the Mortgage Web
Pages, knowingly or otherwise, without LendingTree's review
and approval, Priceline shall be solely responsible for any
issues arising out of that non-compliance.
5. EXCLUSIVITY; NON-COMPETITION
5.1 EXCLUSIVITY. During the term of this Agreement, Priceline
agrees not to offer any Mortgage Loans on its web site, either
directly or through a third party.
5.2 NON-COMPETITION. The parties hereto acknowledge and agree that
the LendingTree Model and Priceline Name Your
Price/Conditional Purchase Model (hereinafter, together, the
"Models") are similar in many of their components. To assist
the parties in complying with this Section 5.2, the parties
agree that the marketing of the Models is the optimum place to
draw the relevant distinctions. Consistent with the above, the
parties agree that during the term of this Agreement and
indefinitely after any termination of this Agreement, (i)
Priceline shall not market its mortgage services in a manner
that conflicts with LendingTree's marketing message which is
"by filling out one form, consumers get multiple offers from
lenders who bid for their business" and (ii) LendingTree shall
not market its mortgage services in a manner that conflicts
with Priceline's marketing message which is "consumers name
the price they want to pay for a mortgage and we will find a
lender to meet your price".
6. TECHNICAL CONTACTS
6.1 TECHNICAL CONTACTS. The Technical Contacts shall meet in
person or by phone as needed from time to time to assess the
status of the Mortgage Web Pages development effort and to
keep each other up to date on technology and new product
issues related to the Mortgage Web Pages. The Technical
Contacts shall be:
For LendingTree: Mr. Richard M. Stiegler, CTO
LendingTree, Inc.
6701 Carmel Road, Suite 205
Charlotte, North Carolina 28226
For Priceline: Mr. Richard Weinrod, CTO
priceline.com Incorporated
Five High Ridge Park
Stamford, CT 06903
6.2 SPECIFICATIONS MODIFICATION. The Technical Contacts may from
time to time modify the specifications for the Mortgage Web
Pages as described in EXHIBIT B to this Agreement provided the
changes are agreed to in writing by the authorized
representatives of the parties.
7. SCHEDULE
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The target date for commencing operation of the Mortgage Web Pages
shall be September 15, 1998 (the "Target Date"). The parties agree to
use best efforts to ensure that the date of commencement is not later
than October 15, 1998.
8. CONSIDERATION
8.1 GENERAL. As compensation for the goods, services and
facilities provided by Priceline under this Agreement,
LendingTree shall pay to Priceline an amount equal to [**][**]
of the monthly Net Revenue earned and received by LendingTree
in operating the Mortgage Web Pages (the "Priceline
Compensation"). LendingTree's obligation to pay the Priceline
Compensation shall survive any termination of this Agreement
insofar and to the extent that Net Revenues are earned and/or
received by LendingTree after such termination. The parties
acknowledge, however, that for purposes of this Section 8.1,
Net Revenue will be limited to (i) those Mortgage Web Page
Qualification Forms that are in the then-participating
lenders' pipeline for a Mortgage Loan product, (ii) have been
approved for a Mortgage Loan but the transaction has not yet
closed and/or (iii) Net Revenue earned but not collected, in
each case on or as of the date of termination of this
Agreement.
8.2 REGULATORY COMPLIANCE. It is the intent of the parties that
the Priceline Compensation shall not exceed the reasonable
market value of the goods, services and facilities provided by
Priceline pursuant to this Agreement and that such
compensation shall at all times be in compliance with
applicable federal and state laws, including without
limitation, the Real Estate Settlement Procedures Act. In
furtherance of these objectives, the parties agree to
negotiate in good faith an alternative compensation
arrangement with substantially similar economic benefits if
Priceline or LendingTree, as applicable, reasonably determine
or believe that such compensation arrangement is no longer in
compliance with applicable federal, state or other laws and
regulations, or any court or government agency having
jurisdiction over the operations of either party restricts,
enjoins, or threatens to restrict, enjoin or impose sanctions
against either party as a result of the terms of this Section
8.
9. PROMOTION RIGHTS AND APPROVALS
9.1 GENERAL. Subject to the provisions of Section 3.3, both
parties may promote, advertise and market the Mortgage Web
Pages subject to the prior approval of the other party of (i)
the use of the other party's Proprietary Marks, and (ii) the
content and timing of any press releases. Such approval shall
not be unreasonably withheld or delayed by either party.
9.2 PRESS RELEASES. The parties agree to issue within two (2)
business days of the execution of this Agreement press
releases, either jointly, individually, or both, announcing
this Agreement and the parties' plans for the Mortgage Web
Pages.Each party shall obtain the prior written approval of
the other party for the issuance of any press release
regarding: (i) the parties' relationship under this Agreement,
or (ii) any other matters related to the Mortgage Web Pages
during the term of this Agreement. Any approval requested by
Priceline or LendingTree under this Section 9.2 shall not be
unreasonably withheld or delayed.
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10. REPORTING AND PAYMENTS
10.1 LENDINGTREE REPORTS, PAYMENTS; AUDITS. Within fifteen (15)
days following the end of each month, LendingTree shall
provide a report (the "LendingTree Report") to Priceline. The
LendingTree Report shall detail (i) any relevant information
regarding usage of the Mortgage Web Pages during the previous
month, including the number of visitors to the Mortgage Web
Pages, the number of Qualification Forms submitted by
consumers to LendingTree, and the number of loans closed that
had originated through the Mortgage Web Pages, (ii) the Net
Revenue of LendingTree during the previous month, including a
breakdown of the total Revenue earned and Revenue Deductions
taken by LendingTree in arriving at the amount of Net Revenue,
and (iii) a calculation of the amount of Priceline
Compensation due for the previous month. On or by the same
date, LendingTree will deliver to Priceline any payment of
Priceline Compensation owed for the previous month. Upon the
request of Priceline, LendingTree shall provide to Priceline
all written or other documentation used by LendingTree to make
any calculation or prepare any report described in this
Section 10.1. Priceline shall have the right, during normal
business hours and upon reasonable notice, to audit the books
and records of LendingTree to verify the accuracy and
completeness of all reports provided under this Section 10.1.
The cost of any such audit shall be paid by Priceline unless
the audit reveals an underpayment by LendingTree of ten
percent (10%) or more of the applicable LendingTree Report. In
such case, the audit shall be paid for fully by LendingTree.
10.2 10.2 PRICELINE REPORTS; AUDIT. Within fifteen (15) days
following the end of each month, Priceline shall provide a
report (the "Priceline Report") which shall detail (i) the
number of page views or impressions on the Mortgage Web Pages
during the previous month, and (ii) the number of consumers
who submitted Qualification Forms to LendingTree via the
Mortgage Web Pages during the previous month. Upon the request
of LendingTree, Priceline shall provide all documentation used
to prepare any report described in this Section 10.2.
LendingTree shall have the right, during normal business hours
and upon reasonable notice, to audit the records of Priceline
to verify the accuracy and completeness of all reports
provided under this Section 10.2.
11. TERM AND TERMINATION
11.1 INITIAL TERM. The term of this Agreement shall commence on the
Effective Date and will continue for a period of one (1) year
from the date on which the Mortgage Web Pages commence
operation over the Internet unless sooner terminated under
Section 11.4 below (the "Initial Term").
11.2 SUBSEQUENT TERMS. Following expiration of the Initial Term,
this Agreement shall continue in effect until either party
terminates it as provided below. The Initial Term and any
subsequent terms are referred to herein as the "Term."
11.3 11.3 GENERAL TERMINATION. After the Initial Term, this
Agreement may be terminated at any time during the Term by
either party giving ninety (90) days' prior written notice to
the other party. In the event that Priceline provides notice
of termination to
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LendingTree under this Section 11.3 for the purpose of using a
different third party mortgage broker to operate the Mortgage
Web Pages, LendingTree shall have a right of first refusal to
match the economic and other material terms offered by such
third party PROVIDED, HOWEVER, that any such right of first
refusal shall be exercised by LendingTree within ninety (90)
calendar days after receipt of notice from Priceline with
respect to such third party offer. The parties agree that the
phrase "other material terms" is intended to ensure that
during the term of this Agreement, the LendingTree network of
lenders have the ability to promptly and efficiently process
and close Mortgage Loans from Mortgage Web Pages Qualification
Forms submitted from consumers/borrowers representing eighty
percent (80%) of the Priceline consumer/borrower market (based
upon FICO credit score.) Priceline will be free to engage
another third party if such right is not exercised by notice
received by Priceline from LendingTree within such ninety (90)
day period. Subject to the limitations in Section 5 hereof,
nothing set forth in this Section 11.3 shall confer on or to
LendingTree any right of first refusal if Priceline elects to
operate directly the Mortgage Web Pages and in connection
therewith, provides notice to terminate this Agreement.
11.4 TERMINATION FOR BREACH. During the Term of this Agreement,
either party will have the right to terminate this Agreement
immediately upon written notice if: (i) the other party
materially breaches any material term or condition of this
Agreement and fails to the cure such breach in full within
thirty (30) days after receiving written notice of the breach
from the non-breaching party; (ii) the other party becomes the
subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation,
or composition for the benefit of creditors which voluntary
petition or proceeding is not dismissed within thirty (30)
days of filing of commencement; and (iii) the other party
becomes the subject of an involuntary petition in bankruptcy
or any other involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of
creditors. Without limiting the generality of the foregoing,
either party may terminate this Agreement immediately upon
notice if, in the case of Priceline, Priceline reasonably
believes or determines that LendingTree has failed to comply
in all material terms, with its obligations under Section 4.6,
or such noncompliance is determined by any order, decree,
judgment or any similar ruling having jurisdiction over
LendingTree's operation of the Mortgage Web Pages or, in the
case of LendingTree, LendingTree reasonably believes or
determines that Priceline has failed to comply in all material
terms, with its obligations under Section 3.5, or such
noncompliance is determined by any order, decree, judgment or
any similar ruling having jurisdiction over Priceline's
operation of the priceline.com Internet site. To the extent
that a breach contemplated by this Section 11.4 is curable,
such cure period may be extended by the mutual written consent
of the parties for an additional period of thirty (30) days,
if the cure cannot be achieved after good faith efforts during
the initial cure period.
11.5 EFFECT OF TERMINATION. Upon termination of this Agreement, all
rights and licenses granted by Priceline and LendingTree under
this Agreement to the other party shall immediately revert to
and be fully vested in Priceline and LendingTree, as
applicable. No termination of this Agreement, for any reason
whatsoever, shall terminate any of the rights and obligations
of the parties under this Agreement unless such right or
obligation is limited by the express terms and provisions of
this Agreement.
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12. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement
or any breach of this Agreement, including any controversy or claim as
to its arbitrability or rescission shall be finally settled by
arbitration before three (3) arbitrators, one chosen by each party and
the third selected by the two arbitrators chosen by the parties in
accordance with the commercial arbitration rules of the American
Arbitration Association ("AAA") in force at that time. Any arbitration
shall be conducted in the Borough of Manhattan, New York, unless the
parties mutually agree to another location. Any judgment upon the award
rendered by the arbitrators may be entered in any court of competent
jurisdiction. The arbitrators shall not, under any circumstances, have
any authority to award punitive or exemplary damages.
All expenses associated with obtaining and utilizing the services of
the AAA and the arbitrators shall be shared equally by the parties
hereto. The AAA and the arbitrators shall be made aware of this
provision and shall agree to request payment separately from the
parties for said services, including all expenses directly related to
the arbitration, other than the expense of witnesses, which shall be
borne by the party producing such witness.
Notwithstanding the foregoing, the parties shall bear their own
respective costs of preparing for and participating in the arbitration
including, without limitation, their attorneys' fees, expert and/or
witness fees, and their costs of complying with discovery requests.
Discovery is permitted by the Federal Rules of Civil Procedure as in
effect and will be allowed in connection with any such arbitration to
the extent consistent with the purpose of the arbitration and permitted
by the arbitrators.
The majority decision of the arbitration panel shall be binding,
enforceable and non-appealable. The decision of the arbitration panel
shall be in writing and shall set forth in reasonable detail the basis
for the panel's decision. Application may be made to any court of
competent jurisdiction for a judicial acceptance of the arbitration
award and enforcement, as the law of the state having jurisdiction may
require or allow.
No arbitration may be commenced by either party hereto for any
controversy or claim arising out of or relating to this Agreement
unless notice of a party's election to require arbitration is given
within one (1) year from the date of the occurrence allegedly giving
rise to the arbitration. The preceding sentence shall survive the
expiration or termination of this Agreement by either party for any
reason.
13. REPRESENTATIONS AND WARRANTIES
13.1 REPRESENTATIONS AND WARRANTIES OF LENDINGTREE. LendingTree
represents and warrants as follows:
13.1.1 AUTHORITY. LendingTree is a corporation duly organized and
validly existing under the laws of the state of Delaware.
LendingTree has full corporate power and authority to transact
any and all business contemplated by this Agreement and
possesses all requisite authority, power, and material
licenses, permits and franchises to conduct its business
wherever conducted and to execute, deliver and comply with its
obligations under the
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terms of this Agreement. LendingTree has taken all necessary
action to authorize its execution, delivery and performance of
this Agreement.
13.1.2 CONFLICT WITH EXISTING LAWS OR CONTRACTS. The execution and
delivery of this Agreement and the performance of its
obligations hereunder by LendingTree will not (i) conflict
with or violate (A) LendingTree's Certificate of Incorporation
or By-laws, or (B) any provision of any law or regulation or
any decree, demand or order to which LendingTree is subject,
or (ii) conflict with or result in a breach of or constitute a
default (or an event which, with notice or lapse of time, or
both, would constitute a default) under any of the terms,
conditions or provisions of any agreement or instrument to
which LendingTree is a party or by which it is bound or any
order or decree applicable to LendingTree or result in the
creation or imposition of any lien on any of its assets or
property.
13.1.3 LICENSES AND CONSENTS. LendingTree, in connection with
performance of its duties related to the Mortgage Web Pages
under this Agreement, has obtained or will obtain all
necessary or required governmental licenses and consents
requisite for the transactions contemplated by this Agreement.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by LendingTree of or compliance by
LendingTree with this Agreement, or if required, such approval
has been obtained prior to the date of this Agreement.
13.1.4 LEGAL ACTION AGAINST LENDINGTREE. There is no claim, action,
suit, proceeding or investigation pending or, to the best of
LendingTree's knowledge, threatened against LendingTree which,
either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations,
financial condition, properties or assets of LendingTree, or
in any material impairment of the right or ability of
LendingTree to carry on its business substantially as now
conducted, or in any material liability on the part of
LendingTree, or which would draw into question the validity of
this Agreement, or any of the other instruments, documents or
agreements entered into by LendingTree in connection with this
Agreement, or of any action taken or to be taken in connection
with the obligations of LendingTree contemplated therein, or
which would be likely to impair materially the ability of
LendingTree to perform under the terms of this Agreement.
13.1.5 BINDING ON LENDINGTREE; ENFORCEABILITY. This Agreement,
assuming due authorization, execution and delivery hereof by
Priceline, and all the obligations of LendingTree hereunder,
shall constitute the legal, valid and binding obligations of
LendingTree, enforceable against LendingTree in accordance
with the terms hereof, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting the enforcement of creditors'
rights in general and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in
equity or at law).
13.1.6 OWNERSHIP OF INTELLECTUAL PROPERTY. LendingTree owns the
copyright and any other rights to or has licensing rights to
all LendingTree Intellectual Property and to the knowledge of
LendingTree, such LendingTree Intellectual Property will not
infringe upon, misappropriate or violate any intellectual
property rights or any other right of any third party.
LendingTree has sufficient rights to the Intellectual Property
to grant to
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Priceline the rights set forth in this Agreement, and to the
knowledge of LendingTree, Priceline's exercise of any such
rights as authorized hereunder will not constitute an
infringement or misappropriation of any intellectual property
rights of any third party.
13.2 REPRESENTATIONS AND WARRANTIES OF PRICELINE. Priceline
represents and warrants as follows:
13.2.1 AUTHORITY. Priceline is a corporation duly organized and
validly existing under the laws of the state of Delaware.
Priceline has full power and authority to transact any and all
business contemplated by this Agreement and possesses all
requisite authority, power, and material licenses, permits and
franchises to conduct its business wherever conducted and to
execute, deliver and comply with its obligations under the
terms of this Agreement. Priceline has taken all necessary
action to authorize its execution, delivery and performance of
this Agreement.
13.2.2 CONFLICT WITH EXISTING LAWS OR CONTRACTS. The execution and
delivery of this Agreement and the performance of its
obligations hereunder by Priceline will not (i) conflict with
or violate (A) Priceline's Articles of Organization or
By-laws, or (B) any provision of any law or regulation or any
decree, demand or order to which Priceline is subject, or (ii)
conflict with or result in a breach of or constitute a default
(or an event which, with notice or lapse of time, or both,
would constitute a default) under any of the terms, conditions
or provisions of any agreement or instrument to which
Priceline is a party or by which it is bound or any order or
decree applicable to Priceline or result in the creation or
imposition of any lien on any of its assets or property.
13.2.3 LICENSES AND CONSENTS. Except with respect to the mortgage
brokerage activity contemplated under this Agreement,
Priceline has obtained all necessary or required governmental
licenses and consents to the transactions contemplated by this
Agreement. Except with respect to the mortgage brokerage
activity contemplated under this Agreement, no consent,
approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and
performance by Priceline of or compliance by Priceline with
this Agreement, or if required, such approval has been
obtained prior to the date of this Agreement.
13.2.4 LEGAL ACTION AGAINST PRICELINE. There is no claim, action,
suit, proceeding or investigation pending or, to the best of
Priceline's knowledge, threatened against Priceline which,
either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations,
financial condition, properties or assets of Priceline, or in
any material impairment of the right or ability of Priceline
to carry on its business substantially as now conducted, or in
any material liability on the part of Priceline, or which
would draw into question the validity of this Agreement or any
of the other instruments, documents or agreements entered into
by Priceline in connection with this Agreement, or of any
action taken or to be taken in connection with the obligations
of Priceline contemplated therein, or which would be likely to
impair materially the ability of Priceline to perform under
the terms of this Agreement.
13.2.5 BINDING ON PRICELINE; ENFORCEABILITY. This Agreement, assuming
due authorization, execution and delivery hereof by
LendingTree, and all the obligations of Priceline
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hereunder, shall constitute the legal, valid and binding
obligations of Priceline, enforceable against Priceline in
accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of
creditors' rights in general and by general equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity or at law).
13.2.6 OWNERSHIP OF INTELLECTUAL PROPERTY. Priceline owns the
copyright and any other rights to or has licensing rights to
all Priceline Intellectual Property and to the knowledge of
Priceline, such Priceline Intellectual Property does not
infringe upon, misappropriate or violate any intellectual
property rights or any other right of any third party.
Priceline has sufficient rights to the Intellectual Property
to grant to LendingTree the rights set forth in this
Agreement, and to the knowledge of Priceline, LendingTree's
exercise of any such rights as authorized hereunder will not
constitute an infringement or misappropriation of any
intellectual property rights of any third party.
14. INDEMNIFICATION; LIMITATION OF LIABILITY
14.1 INDEMNIFICATION FOR ACTIONS TAKEN IN GOOD FAITH. Neither
LendingTree nor any directors, officers, employees or agents
of LendingTree (collectively, "LendingTree Indemnified
Parties") shall be liable to Priceline, any directors,
officers, employees or agents of Priceline (collectively,
"Priceline Indemnified Parties"), or any third party for, and
Priceline shall defend and indemnify the LendingTree
Indemnified Parties and hold each of them harmless from and
against, any action taken by the LendingTree Indemnified
Parties, or for their refraining from taking any action, in
good faith reliance upon information provided by Priceline,
pursuant to this Agreement; PROVIDED, HOWEVER, that this
provision shall not protect any LendingTree Indemnified Party
against, and Priceline shall not be obligated to indemnify or
hold harmless any LendingTree Indemnified Party from or
against, any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence
in the performance of or failure to perform LendingTree's
obligations hereunder.
14.2 INDEMNIFICATION FOR ACTIONS TAKEN IN GOOD FAITH. None of the
Priceline Indemnified Parties shall be liable to the
LendingTree Indemnified Parties, or any third party for, and
LendingTree shall defend and indemnify the Priceline
Indemnified Parties and hold each of them harmless from and
against, any action taken by the Priceline Indemnified
Parties, or for their refraining from taking any action, in
good faith reliance upon information provided by LendingTree,
pursuant to this Agreement; PROVIDED, HOWEVER, that this
provision shall not protect any Priceline Indemnified Party
against, and LendingTree shall not be obligated to indemnify
or hold harmless any Priceline Indemnified Party from or
against, any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence
in the performance of or failure to perform Priceline's
obligations hereunder.
14.3 GENERAL INDEMNIFICATION BY LENDINGTREE. LendingTree shall
defend and indemnify the Priceline Indemnified Parties and
hold each of them harmless from and against any and all
claims, losses, damage, penalties, fines, forfeitures, legal
fees and expenses and related costs, expenses of litigation,
judgments, settlements and any other costs, fees and
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expenses (each, a "Liability") that were caused by or resulted
from, or are otherwise arising from or related to, a breach of
any of LendingTree's duties, representations, warranties,
covenants and agreements contained in this Agreement, the
LendingTree Intellectual Property, or by LendingTree
Indemnified Parties' willful misfeasance, bad faith or
negligence in the performance of or failure to perform as
provided in this Agreement.
14.4 GENERAL INDEMNIFICATION BY PRICELINE. Priceline shall defend
and indemnify the LendingTree Indemnified Parties and hold
each of them harmless from and against any and all Liabilities
that were caused by or resulted from or are otherwise arising
from or related to, a breach of any of Priceline's duties,
representations, warranties, covenants and agreements
contained in this Agreement, the Priceline Intellectual
Property, or by Priceline Indemnified Parties' willful
misfeasance, bad faith, or negligence in the performance of or
failure to perform as provided in this Agreement.
14.5 SURVIVAL OF INDEMNIFICATIONS. Subject to the provisions of
Section 12 of this Agreement, Priceline's and LendingTree's
respective obligations to indemnify any LendingTree
Indemnified Party or any Priceline Indemnified Party will
survive the expiration or termination of this Agreement by
either party for any reason.
14.6 LIMITATIONS OF LIABILITY; CONSEQUENTIAL DAMAGES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES DISCLAIM
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES WITH RESPECT TO THE
OPERATION OF THE SOFTWARE UTILIZED FOR THE MORTGAGE WEB PAGES,
THE MERCHANTABILITY OF SUCH SOFTWARE OR THE FITNESS OF THE
SOFTWARE FOR A PARTICULAR PURPOSE OR USE. NEITHER PARTY SHALL
BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY
LIABILITY WHATSOEVER, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES (UNDER CONTRACT OR TORT THEORIES OF
LAW), INCLUDING BUT NOT LIMITED TO LOST DATA, LOST REVENUE OR
PROFITS OR LOST BUSINESS, HOWEVER ARISING, EVEN IF IT HAS BEEN
ADVISED OF OR HAS FORESEEN THE POSSIBILITY OF SUCH DAMAGES.
14.7 LIMITATION ON LIABILITY OF OFFICERS, DIRECTORS, MEMBERS,
EMPLOYEES AND AGENTS. Neither party shall make any claim
against the officers, directors, members, employees or agents
of the other party but instead shall look solely to the assets
of the other party for satisfaction of any liability of such
party under this Agreement.
14.8 NOTICE OF CLAIMS. Each party shall promptly notify the other
in writing of any and all litigation, claims, notices or
demands known to such party made against it or the other party
in connection with this Agreement. Each party shall cooperate
with the other in the defense or handling of any claim, action
or investigation relating to the subject matter of this
Agreement, provided that such cooperation shall not be deemed
an acceptance of responsibility therefor, except as provided
below. Any request for indemnification under this paragraph
shall be in writing and shall state with particularity the
specific facts supporting the request for indemnification and
a good faith estimate of the amount of the indemnification
requested. In the event responsibility for a request for
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indemnification hereunder is unconditionally accepted in
writing, the party accepting such responsibility may, at its
option, elect to take up the defense or handling of any
pending claim, action or investigation and, in such event, the
party requesting indemnification shall promptly relinquish
control of such defense to the accepting party. Unless and
until a request for indemnification hereunder is
unconditionally accepted, the requesting party may retain
control of the defense or handling of the claim, action or
investigation. The failure of a party to accept a request for
indemnification under this paragraph shall not be binding upon
the requesting party and such party's retention of the control
of the defense or handling of the claim, action or
investigation shall not prejudice its right to seek
enforcement of this paragraph in court.
15. CHOICE OF LAW
15.1 CHOICE OF LAW. The parties agree that this Agreement shall be
construed and controlled by the laws of the State of New York
and the Commercial Arbitration Rules of the AAA. Should a
dispute arise under this Agreement, and should the arbitration
provisions herein become inapplicable, the parties agree that
jurisdiction over and venue of any suit arising out of or
relating to this Agreement shall be exclusively in the state
and federal courts of New York.
15.2 ATTORNEYS' FEES. If either party employs attorneys to enforce
any right arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable
attorneys' fees, in arbitration, litigation, or otherwise.
16. MISCELLANEOUS
16.1 NOTICES. All notices or communications required or permitted
under this Agreement will be in writing and be deemed given:
(i) five (5) business days after having been sent by
registered or certified mail, return receipt requested,
postage prepaid; (ii) one (1) business day after deposit with
a commercial overnight carrier, with written verification of
receipt; (iii) when sent via facsimile or electronic mail with
confirmation. Notice sent by any other method shall be
effective only upon actual receipt. All communications will be
sent to the parties at the addresses set forth below:
If to LendingTree: With a copy to:
Douglas R. Lebda Pamela S. Friedman
Chairman and President General Counsel
LendingTree, Inc. LendingTree, Inc.
6701 Carmel Road, Suite 205 6701 Carmel Road, Suite 205
Charlotte, NC 28226 Charlotte, NC 28226
Fx: 704.541.1824 Fx: 704.541.1824
If to Priceline: With a copy to:
Melissa M. Taub, Esq.
Cummings & Lockwood
Four Stamford Plaza
Stamford, CT 06904
Fx: 203.351.4299
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No notice of change of address shall be effective unless made
in compliance with this Section 16.1.
16.2 ASSIGNMENT. This Agreement shall not be assignable in whole or
in part by LendingTree or Priceline without the other party's
prior written consent, and any attempted assignment without
such consent shall be void. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and
permitted assigns. A change in control of either party, for
example, by merger or sale of stock, shall not be deemed to be
an assignment under this Agreement.
16.3 WAIVER. No term or provision hereof will be deemed waived, and
no variation of terms or provisions hereof shall be deemed
consented to, unless such waiver or consent shall be in
writing and signed by the party against whom such waiver or
consent is sought to be enforced. Any delay, waiver or
omission by LendingTree or Priceline to exercise any right or
power arising from any breach or default of the other party in
any of the terms, provisions or covenants of this Agreement
shall not be construed to be a waiver by LendingTree or
Priceline of any subsequent breach or default of the same or
other terms, provisions or covenants on the part of either
party.
16.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto relating to the subject
matter hereof, except where expressly noted herein, and all
prior negotiations, agreements and understandings, whether
oral or written, are superseded or canceled hereby.
16.5 MODIFICATION. This Agreement and all Exhibits hereto may not
be amended or modified except by a writing signed by both
parties.
16.6 SEVERABILITY. If any provision of this Agreement is declared
or found to be illegal, unenforceable or void, this Agreement
shall be construed as if not containing that provision, and
the rest of the Agreement shall remain in full force and
effect, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
16.7 INDEPENDENT CONTRACTOR. Each party, in performance of this
Agreement, is acting as an independent contractor, is not the
partner, joint venturer or agent of the other party and has no
authority to act on behalf of the other party except as
expressly provided in this Agreement.
16.8 CONFIDENTIALITY. Each party agrees to keep all information
related to the other party confidential, as provided in the
Mutual Confidentiality Agreement signed by the parties on July
8, 1998. The provisions of the Mutual Confidentiality
Agreement shall continue in and during the Term and shall
survive termination of this Agreement for any reason
whatsoever.
16.9 INJUNCTIVE RELIEF. The parties acknowledge and agree that
their respective remedies at law for any breach by the other
party of its obligations hereunder may be inadequate, and the
parties agree and consent that temporary and permanent
injunctive relief may be
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granted in any action or proceeding which may be brought to
enforce any provision hereof without the necessity of proof of
actual damages.
16.10 DELAYS BEYOND CONTROL. Neither party will be liable for any
delay or failure of performance of any of its obligations
under this Agreement, except for the obligation to pay money,
during any period in which such performance is delayed by (i)
war, civil commotion and riots, fires, floods, serious work
stoppages; (ii) requirements or acts of any governmental
authority or agency or subdivision thereof; or (iii) acts of
God; PROVIDED, HOWEVER, that the nonperforming party shall
promptly notify the other party of any such delay and shall
use its best efforts to resume performance as soon as
reasonably possible.
16.11 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
signed, sealed and delivered by its duly authorized officer as of the date first
written above.
LENDINGTREE, INC.
By /s/ Douglas R. Lebda (SEAL)
------------------------------------
Name: Douglas R. Lebda
Title: Chairman and President
PRICELINE.COM INCORPORATED
By /S/ PAUL E. FRANCIS (SEAL)
------------------------------------
Name Paul E. Francis
Title Chief Financial Officer
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EXHIBIT A
PROPRIETARY MARKS
Priceline Proprietary Marks:
The actual marks will be provided sometime prior to the date on which the
Mortgage Web Pages commence operation over the Internet.
LendingTree Proprietary Marks:
The Proprietary Marks covered under this Agreement include, but are not limited
to, the domain name (www.lendingtree.com), any logos now, heretofore or to be
used in the future and all of the content of the LendingTree website as it
appears now, heretofore or in the future. The actual marks will be provided
sometime prior to the date on which the Mortgage Web Pages commence operation
over the Internet.
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EXHIBIT B
MORTGAGE WEB PAGES DEVELOPMENT SPECIFICATIONS
This Exhibit B will be completed sometime prior to the date on which the
Mortgage Web Pages commence operation over the Internet.
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