Marketing Services Agreement - Juno Online Services LP and Hartford Fire Insurance Co.
MARKETING SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of the 30th day of
September, 1998, by and between Juno Online Services, L.P. ("Juno"), a limited
partnership, organized under the laws of the State of Delaware, having an
address at 120 West 45th Street, 15th Floor, New York, New York 10036, on the
one hand, and Hartford Fire Insurance Company, a corporation organized under the
laws of the State of Connecticut, and its affiliated property/casualty insurance
companies, (collectively, "The Hartford"), having an address at Hartford Plaza,
Hartford CT 06001, on the other hand (each of Juno and The Hartford is referred
to herein as a "Party", and both collectively referred to as the "Parties").
WHEREAS, Juno provides certain branded online services to subscribers; and
WHEREAS, The Hartford desires to engage Juno to, among other things,
advertise certain of The Hartford's "Personal" lines of insurance to Juno's
subscribers, on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the Parties agree as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
following meanings:
1.1. "Ad Bundles" shall mean a set of Materials promoting any of the
Hartford Products, sent electronically to a Juno Subscriber by means of any of
the Juno Services. Ad Bundles include, without limitation, e-mails, banner
advertisements, pop-up ads, interstitial ads, Web click-through ads, the
interactive forms and screens that support such advertising, and advertising
media that may be developed by Juno in the future. Each Ad Bundle will consist
of a minimum of [****] scheduled Impressions (it being understood that a
particular Juno subscriber may not use the Juno Services with sufficient
frequency to have all [****] impressions per Ad Bundle actually displayed),
unless both parties agree to a lower number. Ad Bundles do not include any
portion of an Internet site managed solely by The Hartford.
1.2. "Co-Developed Program" shall mean any program in which Juno and The
Hartford participate jointly and which displays the trademarks, names, logos, or
other identifiers
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of each of Juno and The Hartford. Co-Developed Programs include (without
limitation) any jointly developed Ad Bundle, Internet site, e-mail application,
toll free number or other process.
1.3. "Hartford Products" shall mean, collectively, The Hartford's Personal
Lines policies.
1.4. "Impression" shall mean a single showing of a Material or aggregation
of Materials transmitted to and displayed to a Juno Subscriber as a single
screen or portion of a screen displayed on a Juno Service or as part of a
Co-Developed Program.
1.5. "Juno Services" shall mean the online services provided by Juno to the
Juno Subscribers, including without limitation electronic mail, Juno Gold, Juno
Web, and such future services that support advertising as may be developed by
Juno.
1.6. "Juno Subscriber" shall mean any individual who subscribes to one or
more of the Juno Services.
1.7. "Materials" shall mean any text, images, software, multimedia
elements, or any other items provided by a Party in connection with the
development or implementation of any Co-Developed Program.
1.8. "Minimum Payment" shall have the meaning set forth in Section 5.2 of
this Agreement.
1.9. "New Policyholder" shall mean an individual who purchases a Hartford
Product after viewing and responding through the Co-developed Program to an
Impression, an Ad Bundle, or any portion of a Co-Developed Program.
1.10. "Personal Lines" shall mean each of the following Hartford policies:
automobile insurance, homeowners' insurance, home-based business insurance,
personal umbrella insurance, and such future Personal Lines insurance products
as by mutual agreement of the Parties may be offered by The Hartford through the
Co-Branded Program.
1.11. "Relationship" shall mean the relationship between Juno and The
Hartford created by this Agreement.
1.12. "Response Rate" shall mean the number of Juno Subscribers receiving a
premium quote for a Hartford Product during a given period, divided by the
number of Juno Subscribers who receive and have had displayed to them at least
one Impression of a Hartford/Juno Ad Bundle or any other Co-Developed Program
during that same period.
1.13. "Subscriber Data" shall mean all data, information, and records
collected and/or maintained by Juno regarding the Juno Subscribers.
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1.14. "Variable Payment" shall have the meaning set forth in Section 5.3 of
this Agreement.
1.15. "Active Juno Subscriber" shall mean any Juno Subscriber who has used
any of the Juno Services during the previous [****] days.
1.16. "Joint Materials" shall mean any text, images, software, multimedia
elements, or any other items that have been jointly developed by the parties in
connection with the development or implementation of any Co-Developed Program,
but shall not include (i) any software, technology, or other intellectual
property developed for, or used in connection with, the provision of the Juno
Services, or (ii) shall not include any software, technology, or other
intellectual property developed for, or used in conjunction with, the provision
of The Hartford's insurance products and services, whether or not developed and
used with input from Juno.
2. SERVICES. DURING THE TERM OF THIS AGREEMENT, JUNO SHALL DO THE FOLLOWING
(COLLECTIVELY, THE "MARKETING SERVICES"):
2.1. AD BUNDLES. Subject to the provisions of Section 5.6 herein, develop
[****] mutually acceptable Ad Bundles per year in accordance with the schedule
set forth on Attachment A to this Agreement, including developing mutually
acceptable ad creatives and campaign initiatives. The Hartford will have a right
of final approval over all ad creatives. The Hartford will provide reasonable
support regarding the design and development of the Ad Bundles, including
coordination with The Hartford's advertising agency or agencies, assistance in
creative themes, and assistance with analysis of results.
2.2. ANNOUNCEMENT TO JUNO SUBSCRIBERS. Subject to the provisions of Section
3.2 herein, announce and advertise the Relationship, with a goal of enhancing
Juno's affinity relationship with the Juno Subscribers.
2.3. SEGMENTATION. Work with a mutually agreeable third party to allow The
Hartford to analyze the Subscriber Data according to The Hartford's segmentation
rules and screening criteria ("Segmentation") in a manner that protects the
privacy of the Juno Subscribers, complies with Juno's privacy policies, and
complies with The Hartford's confidentiality obligations hereunder. Upon mutual
agreement of the Parties, either Party may perform Segmentation in lieu of a
third party. Segmentation will be performed four times per year according to a
schedule to be mutually agreed upon by the Parties in writing, and The Hartford
shall be solely responsible for all costs associated with Segmentation.
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2.4. TARGETED AD BUNDLE DELIVERY.
(a) Commencing in 1999, deliver, for planning purposes, an average of
[****] Ad Bundles in each full calendar quarter of the Term to Juno Subscribers
targeted by The Hartford based on the results of the Segmentation (and/or other
targeting methods employed by the parties), it being understood that Juno
Subscribers who are subscribers for less than a full calendar year will have a
proportionately smaller number of Ad Bundles delivered to them.
(b) Upon reasonable notice from The Hartford, use commercially
reasonable efforts to coordinate delivery of Ad Bundles with The Hartford's call
center capacity, including specifically increasing delivery of Ad Bundles if The
Hartford informs Juno that call center capacity is available and decreasing
capacity if The Hartford informs Juno that call center capacity is unavailable.
2.5. BANNERS. Provide [****] banners or flags displaying the Juno logo to
be placed in The Hartford's call centers and offices to promote awareness of the
Relationship. The Hartford agrees that it will prominently display these banners
in its call centers and offices throughout the entire Term of this Agreement.
3. RELATIONSHIP OF THE PARTIES.
3.1 ROLE OF JUNO. The parties agree that Juno is not authorized on behalf
of The Hartford to sell insurance, and shall not engage, in the business of
selling insurance on behalf of The Hartford, nor is it authorized to act in any
manner as an insurance agent, broker, solicitor or in any related capacity on
behalf of The Hartford. The parties agree that Juno's function as contemplated
by this Agreement shall be limited solely to providing an advertising medium for
conveying information about Hartford Products to Juno Subscribers. It is further
understood that Juno is not an agent of The Hartford and that Juno shall perform
no agency functions related to the sale, processing or underwriting of insurance
policies that are the subject of this Agreement.
3.2 EXCLUSIVITY. For the duration of the Term (as defined in Section 10 of
this Agreement), The Hartford shall have the exclusive right to advertise
Personal Lines insurance in connection with the Juno Services. With regard to
the Juno Services and the Juno Subscribers, Juno shall refrain from displaying
advertisements, promoting or participating in e-mail campaigns, or providing
other support for these types of insurance on behalf of any other company.
Without limitation of this Section 3.2, if any third party proposes to Juno to
enter into an exclusive advertising relationship for the purposes of promoting
life insurance products by means of the Juno Services, Juno will provide The
Hartford with a right of first refusal concerning such exclusive advertising
relationship. Pursuant to such right of first refusal, The
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Hartford will have ten (10) business days from Juno's notice of such proposal,
in which to present to Juno an alternative proposal. Nothing herein shall
obligate Juno to accept or negotiate The Hartford's alternative proposal.
3.3 PUBLICITY; USE OF MARKS.
(a) The timing and content of any press release regarding any aspect
of this Agreement (whether in electronic, print, or other media) shall be
subject to the prior written approval of both Parties.
(b) Except as explicitly provided in this Agreement, neither Party
shall, without the other Party's prior written approval, use in any advertising,
public announcement, press release or any other promotional endeavor any mark,
name, trademark, logo, or identifier (collectively, "Marks") or represent,
directly or indirectly, that any product or service provided by such Party has
been approved or endorsed by the other Party. No provision of this Agreement
shall be deemed to grant either Party any rights in the other Party's Marks.
(c) The Parties agree that Juno will specifically be permitted to
share summaries of the Relationship with potential investors who have executed a
non-disclosure agreement with Juno, and that The Hartford will specifically be
permitted to share summaries of the Relationship with business entities which
have executed a non-disclosure agreement with the Hartford and are not
"competitors" of Juno (defined as any company who provides e-mail service or
dial-up ISP service), except with the express written permission of Juno.
(d) Juno may show depictions of any of the Materials and identify The
Hartford in connection with Juno's own marketing materials during the Term.
3.4 COMPLIANCE WITH INSURANCE LAWS. For aspects of the Relationship that
may be subject to insurance regulation or law, Juno agrees to use its reasonable
commercial efforts to adhere to The Hartford's policies; provided that Juno
receives prior written notice of each such policy. Without limitation of the
foregoing, each Party agrees that it will comply with all laws, rules, and
regulations applicable to performance of such Party's obligations under this
Agreement. Prior to the commencement of the first transmission by Juno of any
Materials under the Co-Developed Program, Hartford will deliver to Juno a
written legal opinion, in form and substance reasonably satisfactory to Juno,
that the transmission of Materials by Juno as contemplated under the Agreement
and the receipt of One-Time Acquisition Fees and Ongoing Royalties by Juno as
contemplated under the Agreement do not require Juno to be registered or
licensed by the applicable insurance regulatory authority in any state or
jurisdiction in which the Parties intend to advertise the Co-Developed Program.
The parties agree that any failure by Juno to satisfy any such registration or
licensing requirements shall not be considered a violation of a law, rule, or
regulation that gives rise to Juno's obligations to The Hartford under Section
8.1 of the Agreement.
3.5. MANAGEMENT OF THE RELATIONSHIP. In order to facilitate decision-making
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respect to the Relationship, each of the parties shall select one officer at the
level of Vice President or higher who shall be designated as that party's
relationship manager with respect to the Relationship (the "Relationship
Manager"). The parties agree that the Relationship Managers will consult with
each other on certain matters, including technical and support issues, sales
development and support, marketing and public relations, and product development
by The Hartford, to the extent that such matters relate to the Relationship. The
parties agree that, during the term of this Agreement, the Relationship Managers
shall meet at such times, and in such locations (or by telephone), as they may
mutually agree, but not less frequently than once per quarter unless both of the
Relationship Managers agree that such a quarterly meeting is not necessary. Each
party may replace its Relationship Manager with another officer at the level of
Vice President or higher at any time upon written notice to the other party.
Within ten business days following execution of the Agreement, each of the
parties will deliver written notice to the other Party designating its
Relationship Manager. The Hartford's Relationship Manager or his designated
representative shall have final approval rights on all Ad Bundles. The
Relationship Managers shall work together to determine the timing, production,
and delivery of Ad Bundles.
3.6 PRODUCTS OFFERED. Juno agrees that The Hartford may change its Personal
Lines product offerings or its pricing and underwriting standards at any time,
it being understood that the inclusion of any new insurance policy products not
falling within the defined parameters indicated by the definition of "Personal
Lines" contained herein shall not be subject to the terms set forth by this
Agreement, including but not limited to Exclusivity (as per Section 3.2).
3.7 Confidentiality
a. Definition of "Confidential Information"
In order to meet their respective responsibilities under this
Agreement, each party may supply the other with certain "Confidential
Information." As used herein, "Confidential Information" means all existing
customer names, coverages and expirations, underwriting criteria and objectives,
technological data and processes, data, reports, interpretations, forecasts and
records, including analyses, compilations, studies or other reviews, containing
or otherwise reflecting information and concerning the internal affairs of The
Hartford and Juno, which has been or may be acquired or developed by each of the
respective parties and is not available to the general public.
Notwithstanding the foregoing, the following will not constitute
"Confidential Information" for purposes of this Agreement: (i) information that
was already in the possession of a party prior to the date of this Agreement,
was not acquired or obtained from the other party during the course of
negotiations with respect to the subject matter of this Agreement, and was not
obtained in violation of a confidentiality agreement; (ii) information which is
obtained or was previously obtained by a party from a third person who, insofar
as was known, was not prohibited from transmitting the information by a
contractual, legal or fiduciary obligation to the other party; (iii) information
which is or becomes generally available to the public other than as a result of
a breach of this Agreement by the party or its agents or employees (collectively
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hereinafter its "Agents").
b. Duty to Preserve Confidentiality
Hartford and Juno agree that the Confidential Information of each
party will be held and treated by the other and its Agents in confidence and
will not, except as hereinafter provided, without the prior written consent of
the affected party, be disclosed by the other party or its Agents in any manner
whatsoever, in whole or in part to any person. Moreover, each party further
agrees (i) to disclose Confidential Information of the other party only to its
Agents who need to know the Confidential Information to further the objectives
of this Agreement and who will be advised of this Agreement and agree to be
bound by the terms of the Agreement; (ii) that the disclosing party shall be
satisfied that such Agents will act in accordance herewith; and (iii) that, in
any event, each party shall be responsible for any breach of this Agreement by
its Agents. The Hartford further acknowledges that the service agreement
pursuant to which Juno provides the Juno Services to the Juno Subscribers (as
such may be amended from time to time, the "Service Agreement") embodies certain
terms and conditions governing the use of and disclosure by Juno of information
relating to the Juno Subscribers. The Hartford acknowledges that,
notwithstanding any other term of this Agreement, under no circumstances can
Juno be required to provide information to The Hartford about Juno Subscribers
in a manner that would violate the restrictions set forth in the Service
Agreement or that would violate applicable law or regulation.
4. ADDITIONAL MARKETING EFFORTS.
4.1 IDENTIFICATION OF NEW POLICYHOLDERS. In order to permit Juno to measure
Response Rates under this Agreement, and to permit Juno to receive appropriate
credit and payments for New Policyholders under this Agreement, The Hartford
will during the Term of this Agreement and for a period of 6 months thereafter
(i) implement one or more separate 800 or other toll-free number as a means for
response to the Co-Developed Program; (ii) implement one or more e-mail address
or postal addresses for responses to the Co-Developed Program to the extent that
e-mail and/or postal mail might be utilized as a response mechanism; (iii) take
other steps (including without limitation instructing customer service
representatives to record whether telephone callers to The Hartford's general
call center learned of The Hartford's Products as a result of the Co-Developed
Program) designed to identify those policyholders who might be New
Policyholders.
4.2 ADDITIONAL TARGETED SUBSCRIBERS. The Parties acknowledge their desire
to (i) advertise [****]-endorsed Personal Lines to Juno Subscribers who are also
members of the [****]; and (ii) advertise Personal Lines to Juno Subscribers who
state a preference to work with an independent agent. The Parties agree to use
good faith efforts to reach mutually acceptable terms
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under which such marketing would be included in the Relationship. Both parties
understand that the One-Time Acquisition Fee and Ongoing Royalty may differ for
such policies.
4.3 INSURANCE MALL. Upon mutual agreement of Juno and The Hartford or if,
at any time after five calendar quarters, the cumulative Response Rate is less
than [****]%, The Hartford may establish a program in which it sells insurance
products, substantially similar to the Personal Lines, from multiple carriers to
Juno Subscribers (such facility, the "Insurance Mall"). Sales of insurance
products by means of the Insurance Mall will be subject to the terms and
conditions of this Agreement. If the Insurance Mall is established, The Hartford
or any other mutually acceptable participating carrier shall pay Juno any
One-Time Acquisition Fees and Ongoing Royalties due hereunder. The Hartford
agrees to cause each participating carrier that is mutually acceptable to the
Parties to execute an agreement with Juno which is substantially similar in form
and substance to this Agreement. Juno will have approval rights of all
participating carriers, but agrees not to unreasonably withhold approval of
insurance companies rated equal to or better The Hartford's rating as of the
date of execution of this Agreement. Juno will have sole approval and control
over the branding and artistic and editorial content of any such Insurance Mall.
5. FEES AND PAYMENTS.
5.1. PAYMENT AND REPORTS. By the day before the first day of each fiscal
quarter during the Term, the Hartford shall pay to Juno the Guaranteed
Advertising Commitment and the Marketing Allowance for such quarter on a
non-refundable basis. Thirty days after the end of each fiscal quarter during
the Term, The Hartford shall pay to Juno the Ad Transmission Allowance, and the
amount, if any, by which the Variable Payment for such quarter exceeds the
Minimum Payment for such quarter. Together with such payment, The Hartford will
provide Juno with the number of New Policyholders acquired during each such
calendar quarter, together with a detailed calculation of applicable amounts
payable as described herein (including without limitation, a calculation of the
Minimum Payment and Variable Payment for such quarter) and such other
information as Juno may reasonably request.
5.2. MINIMUM PAYMENT. The non-refundable Minimum Payment for each calendar
quarter shall be the sum of the following:
(a) A guaranteed advertising commitment (the "Guaranteed Advertising
Commitment") of $[****], calculated by dividing $[****] into [****] equal
quarterly payments; plus
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(b) An allowance (the "Marketing Allowance") which is an advance
against the One-Time Acquisition Fees and the Ongoing Royalty Fees, of $[****]
per quarter, plus any applicable Additional Bundle Fees for any Additional
Bundles (as defined in Section 5.5 of this Agreement) developed during any such
quarter less any discount on Ad Bundles (as described in Section 5.6 of this
Agreement), to defray any and all marketing and creative media development costs
(specifically including Juno advertising media developed during the Term)
including but not limited to creative design, market testing, data analysis, and
modification of ads; plus
(c) The Ad Transmission Allowance, to cover Juno's ad transmission
costs, shall be mutually agreed upon by the Parties for each calendar year by
October 31 of the preceding year. For calendar years 1998 and 1999, the Ad
Transmission Allowance shall be $[****] per 1,000 transmissions. In subsequent
calendar years, the parties will equitably and proportionally quarterly adjust
the Ad Transmission Allowance to reflect any changes in the planned number of
recipients of Ad Bundles and/or Juno's data transmission costs. The initial
e-mail to Juno Subscribers announcing the Relationship does not constitute
transmission of an Ad Bundle, and therefore such initial e-mail shall be at
Juno's expense.
5.3. VARIABLE PAYMENTS. The Variable Payment for each quarter will be the
sum of (i) all One-Time Acquisition Fees (as defined in Section 5.3(a)) earned
by Juno from the Effective Date through such calendar quarter, and (ii) all
Ongoing Royalties (as defined in Section 5.3(b)) generated by Juno from the
Effective Date through such calendar quarter, it being understood that no
Variable Payment shall be owed to Juno with respect to a New Policyholder until
such New Policyholder makes his first payment to The Hartford. The Hartford
represents and warrants to Juno that The Hartford's standard business practice
is to solicit such first payment within thirty days of the effective date of a
new insurance policy to a New Policyholder.
(a) One-Time Acquisition Fees are as follows:
(i) For each New Policyholder purchasing automobile insurance, a
One-Time Acquisition Fee of $[****]. No additional One-Time Acquisition fee
shall be paid to Juno if such New Policyholder also purchases another Personal
Lines product, whether coincident with or subsequent to the purchase of an
automobile insurance policy.
(ii) For each New Policyholder purchasing a Personal Lines
product other than automobile insurance ("Non-Auto"), a One-Time Acquisition Fee
of $[****]. If such New Policyholder subsequently purchases automobile insurance
from The Hartford as a result of a Co-Developed Program, Juno will receive an
additional One-Time Acquisition Fee of $[****].
(iii) The foregoing One-Time Acquisition Fees are based on the
assumption that New Policyholders who purchase only Non-Auto products will
comprise less than [****]% of all New Policyholders. In the event that this
proportion becomes greater than
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15%, Juno and The Hartford will then agree in good faith on increased One-Time
Acquisition Fees for New Policyholders who purchase Non-Auto products; provided,
however, that in no event will such increased One-Time Acquisition Fee exceed
$[****].
(b) Ongoing Royalty Fees are as follows: For each New Policyholder who
purchases any Personal Lines policy, The Hartford will pay Juno a royalty of
[****]% of written premiums on each Personal Lines policy purchased by such
person for as long as he retains such Personal Line policy or seven years
following the expiration or termination of this Agreement. This royalty will be
increased by [****]% for each calendar year for which the Response Rate from
Juno Subscribers exceeds [****]% (e.g. if the 1999 Response Rate exceeds
[****]%, then Juno receives a royalty of [****]% on the Personal Line premiums
paid by New Policyholders in 1999, regardless of Response Rates in future
years).
(c) In the event that Juno agrees to advertise insurance products and
services of The Hartford other than or in addition to the current Hartford
Products, the Parties will mutually agree on an equitable adjustment of the
One-Time Acquisition Fees and Ongoing Royalties. The structure and approach used
for other portions of the Relationship may serve as a model for such
discussions.
5.4 ADJUSTMENT OF GUARANTEED ADVERTISING COMMITMENT. Following the
occurrence of a "Shortfall Event" (as defined below), the amount of the
Guaranteed Advertising Commitment shall be adjusted in accordance with this
Section 5.4.
(a) A "Shortfall Event" shall be deemed to have occurred with respect
to a calendar quarter only if (i) the aggregate number of Active Juno
Subscribers during that calendar quarter is less than [****] AND (ii) during a
"Cure Period" comprising the following two successive calendar quarters, the
aggregate number of Active Juno Subscribers is less than [****] during each of
such two successive calendar quarters. The last day of the Cure Period shall be
referred to as the "Shortfall Effective Date". The difference between (i) [****]
and (ii) the aggregate number of Active Juno Subscribers during the calendar
quarter in question shall be referred to as the "Shortfall Amount."
(b) If a Shortfall Event has occurred, the Guaranteed Advertising
Commitment of $[****] for all calendar quarters beginning after the Shortfall
Effective Date shall be reduced (but in no event below zero) by [****]% for
every [****] Active Juno Subscribers in the Shortfall Amount. (Solely for
purposes of illustration, if the aggregate number of Active Juno Subscribers
were 1.9 million during a particular calendar quarter, the Guaranteed
Advertising Commitment of $[****] for all calendar quarters after the Shortfall
Effective Date would be reduced by $[****], or [****]%.)
(c) Notwithstanding subsection (b) above, if, during any two
consecutive calendar quarters commencing after the Effective Date, the aggregate
number of Active Juno
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Subscribers equals or exceeds [****] during each of such two calendar quarters,
then the Guaranteed Advertising Commitment shall be restored to $[****] for the
remainder of the Term, commencing on the first calendar quarter thereafter.
(d) For the avoidance of doubt, the adjustments described in this
Section 5.4 shall apply only to the Guaranteed Advertising Commitment, and shall
not affect or reduce The Hartford's obligations with respect to the Marketing
Allowance, the Ad Transmission Allowance or any of the Variable Payments.
5.5 NO PAYMENTS ON PRIOR POLICYHOLDERS. In no event shall any provision of
this Agreement obligate The Hartford to pay the One-Time Acquisition Fees or
Ongoing Royalties as described in Section 5.3 (a) and 5.3 (b) to Juno in
connection with (a) any Juno Subscriber who purchased an automobile insurance
policy or Personal Line policy of The Hartford prior to the Effective Date of
this Agreement, which policy remains in effect; or (b) any Juno Subscriber who
becomes a New Policyholder through a distribution channel other than a
Co-Developed Program. Examples of other distribution channels of The Hartford
include [****], other Affinity programs, and Independent Agents. However, should
such a Juno Subscriber subsequently purchase any Hartford Product as a result of
a Co-Developed Program, the Ongoing Royalties set forth in this Agreement will
apply to each such purchase.
5.6 TERMINATED POLICIES. All earned One-Time Acquisition Fees will be due
and payable to Juno regardless of whether the New Policyholder cancels a
Hartford Product, and applicable Ongoing Royalties will be due and payable until
such cancellation.
5.7 FEES FOR ADDITIONAL AD BUNDLES. In the event that The Hartford desires
more than [****] Ad Bundles in any calendar year, Juno will provide creative
design, market testing, data analysis, and modifications for such additional Ad
Bundles ("Additional Bundles") in exchange for an additional Marketing Allowance
of [****] dollars for each additional Ad Bundle (the "Additional Bundle Fee").
5.8 DISCOUNT ON AD BUNDLES. On an average basis and for planning purposes,
Juno and The Hartford agree to develop three Ad Bundles per quarter and twelve
Ad Bundles per calendar year. Juno and The Hartford agree that should The
Hartford provide its own ad bundle or portion thereof; or if both parties agree
to reduce the number of quarterly Ad Bundles that a reasonable discount to the
applicable fees may be determined at that time by both parties in good faith.
5.9 AUDITS. The Hartford shall maintain complete, detailed and accurate
records of all transactions related to the subject matter of this Agreement.
Juno or its authorized representative shall have the right to conduct a
reasonable inspection of portions of such records for the purpose of verifying
amounts payable to Juno hereunder. The Hartford shall promptly pay to Juno any
underage determined by or as a result of such audit. Such inspection shall be
conducted upon reasonable notice to The Hartford, and in such a manner as to
minimize disruption to The
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Hartford. The Hartford agrees that Juno or its representative shall have the
right to make copies of relevant records for further review. If any such audit
reveals that The Hartford has underpaid Juno by five percent (5%) of the fees
owed to Juno, The Hartford shall immediately pay such fees to Juno together with
the costs of the audit. Juno shall maintain complete, detailed and accurate
records of all transactions related to the subject matter of this Agreement. The
Hartford or its authorized representative shall have the right to conduct a
reasonable inspection of portions of such records for the purpose of verifying
amounts payable to Hartford hereunder. Juno shall promptly reimburse to The
Hartford any overage determined by or as a result of such audit. Such inspection
shall be conducted upon reasonable notice to Juno, and in such a manner as to
minimize disruption to Juno. Juno agrees that The Hartford or its representative
shall have the right to make copies of relevant records for further review. If
any such audit reveals that Juno has underpaid The Hartford by five percent (5%)
of any fees owed to The Hartford, Juno shall immediately pay such fees to The
Hartford together with the costs of the audit.
6. PROPRIETARY RIGHTS.
6.1 (a) OWNERSHIP OF MATERIALS. Each Party will maintain sole ownership of
all its Materials and any intellectual property rights therein, including
without limitation any Materials purchased or licensed from a third party, and
the other Party shall have no right, title, or interest therein. Notwithstanding
the foregoing, either Party will have the right to use the other Party's
Materials only pursuant to the terms and conditions of this Agreement.
6.1 (b) To the extent that the parties have developed any Joint Materials,
the parties agree that ownership of such Joint Materials and any intellectual
property rights therein shall belong solely to Juno, but that Juno shall provide
to The Hartford a perpetual, non-exclusive, worldwide, non-transferable,
royalty-free license to reproduce and distribute such Joint Materials provided
that such license to reproduce and distribute such Joint Materials (A) shall be
limited to the transmission of advertisements or other marketing or promotional
materials for The Hartford Products, and (B) shall not include the right to use
the Joint Materials in a manner that is competitive with Juno's business of
providing Internet services and e-mail functionality.
6.2 RESIDUAL RIGHTS. Subject to the provisions of Article 3 governing
exclusivity, and the provisions of Article 10 governing post-termination
marketing, Juno will have the right to re-use any Materials developed or
provided by Juno, on behalf of any other relationship entered into by Juno
during the Term or following expiration or termination of this Agreement.
6.3 RIGHTS CLEARANCE. Each Party shall be responsible for obtaining at its
own expense any rights, licenses, or permissions necessary to copy, transmit,
distribute, or otherwise use any text, images, software, multimedia elements, or
other content provided by such Party (including without limitation for use in
any Co-Developed Program, including without limitation Ad Bundles.
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7. WARRANTIES.
7.1. YEAR 2000. Juno represents and warrants to the Hartford that any Juno
Services on which Ad Bundles shall be transmitted as part of the Co-Developed
Program shall during or after the calendar year 2000 be "Year 2000 Compliant"
(as defined below). A Juno Service shall be Year 2000 Compliant if it is capable
of doing the following: (i) manage and manipulate data involving dates,
including single-century formulas and multi-century formulas, without causing an
abnormally ending scenario within the application or result in the generation of
incorrect values involving such dates, (ii) ensure that date-related user
interface functions and data fields include the indication of century, and (iii)
ensure that all date-related functions related to the operation of that Service
will include the indication of century.
7.2. INTELLECTUAL PROPERTY. Each party represents and warrants to the other
party that all Materials provided by such party do not now and will not infringe
on any third party intellectual property or contractual right.
7.3. ADDITIONAL MUTUAL REPRESENTATIONS AND WARRANTIES. Each of Juno (with
respect to itself) and the Hartford (with respect to The Hartford Fire Insurance
Company and its affiliated property and casualty insurers) represents and
warrants to the other party hereto as of the date hereof as follows:
A. Organization and Authority; No Violation of Other Instruments
It (in the case of Juno) is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of
Delaware. They (in the case of the Hartford) are corporations duly
organized, validly existing and in good standing under the laws of
their respective states of domicile. The parties have all requisite
power and authority to execute and deliver this Agreement and to
perform the duties contemplated hereby. This Agreement constitutes the
legal, valid and binding obligations of the parties enforceable
against each party in accordance with its terms, except as enforcement
of such terms may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally, and by the availability of equitable
remedies and defenses.
The execution and delivery of this Agreement and the performance of
the duties contemplated hereby will not (i) violate any provision of
the respective certificate of limited partnership or limited
partnership agreement (in the case of Juno) or Certificate of
Incorporation or bylaws (in the case of the Hartford), (ii) violate
any
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provision of, or result in the termination of, or the acceleration of
(or entitle any party to exercise a right to terminate or accelerate)
any obligation under any mortgage, note, lien, lease, franchise,
license, permit, agreement, instrument, order, arbitration award,
judgment or decree to which either party, singularly or jointly, is a
party or by which it is bound, or require the consent of any party
thereto or (iii) violate or conflict with any other material
restriction of any kind or character to which either party may be
subject.
B. Judgments, Decrees and Orders
Neither party is a party to, or subject to, any judgment, decree or
order entered in any suit or proceeding brought by a governmental
agency, or by any other person, enjoining it in respect of any
business practice, the acquisition of any property or the conduct of
any business that would have a material adverse effect on their
ability to perform their respective obligations under this Agreement.
C. Compliance with Laws
Neither party has been charged or threatened, to the best knowledge of
the undersigned officers, with a charge or violation, or is under
investigation with respect to a possible violation, of any provision
of any laws relating to any aspect of their businesses that would have
a material adverse impact on their ability to perform their respective
duties under this Agreement. There have been no claims, inquiries,
citations, penalties assessed or other proceedings of federal, state
or local governmental agencies in respect of either party which relate
to any provision of any laws that would have a material adverse effect
on their ability to perform their respective duties under this
Agreement.
D. Completeness of Disclosures
The representations and warranties of each party contained herein or
in any document delivered pursuant hereto are true and correct and do
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, truthful.
7.4. DISCLAIMER OF WARRANTY. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS
ARTICLE 7, JUNO MAKES NO WARRANTY, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
FOR ANY OF THE JUNO SERVICES. SPECIFICALLY, THE HARTFORD ACKNOWLEDGES AND
UNDERSTANDS THAT JUNO MAY ENCOUNTER TEMPORARY TECHNICAL OR OTHER DIFFICULTIES
WHICH MAKE PROVIDING THE JUNO SERVICE UNFEASIBLE OR REQUIRE JUNO TO
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ALTER THE CONTENT OR STRUCTURE OF THE JUNO SERVICE IN ITS CURRENT FORM.
8. INDEMNIFICATION.
8.1. BY JUNO. Juno will indemnify, defend, and hold harmless The Hartford
and its officers, agents, employees, and affiliates from any third party claims,
damages, liabilities, costs and expenses, including without limitation
reasonable legal fees and expenses, arising out of or related to any claim that
Juno has (a) breached any warranty set forth in this Agreement, or(b) violated
any law, rule, or regulation applicable to Juno's performance of its obligations
hereunder except as specifically provided for in this Agreement.. The Hartford
shall have the right, but not the obligation to participate in such defense and
to review all documents prepared in connection therewith. The Hartford shall not
be bound by any settlement to which it has not consented in writing.
8.2. BY THE HARTFORD. The Hartford will indemnify, defend, and hold
harmless Juno and its partners, officers, agents, employees, and affiliates from
any third party claims, damages, liabilities, costs and expenses, including
without limitation reasonable legal fees and expenses, arising out of or related
to any claim (a) that The Hartford has breached any warranty set forth in this
Agreement, (b) that The Hartford has violated any law, rule, or regulation
applicable to The Hartford's performance of its obligations hereunder, or (c)
arising out of or otherwise related to any Materials, any Hartford Product, or
any other product or any related services or information offered, sold,
distributed, or otherwise provided by The Hartford. Juno shall have the right,
but not the obligation to participate in such defense and to review all
documents prepared in connection therewith. Juno shall not be bound by any
settlement to which it has not consented in writing.
9. LIMITATION ON LIABILITY.
Juno's entire liability for direct damages for any claim arising under or
related to this Agreement will be limited to amounts actually received by Juno
from The Hartford in the six (6) consecutive months immediately prior to the
date on which such claim arose. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, THAT THE
FOREGOING LIMITATIONS, INCLUDING THE LIMITATION ON LIABILITY FOR DIRECT DAMAGES,
SHALL NOT APPLY TO (1) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
AGREEMENT; OR (2) EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The
Hartford agrees that any obligation or liability of Juno arising under or
relating to this Agreement shall be without recourse to any partner of Juno, any
controlling person thereof and any successor to any such partner or person, and
no such partner, controlling person or successor shall have any liability in
such capacity for
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the obligations of Juno. For the avoidance of doubt, each such partner,
controlling person and successor is a third party beneficiary of this Agreement.
10. TERM AND TERMINATION.
10.1. TERM. The term of this Agreement (the "Term") shall commence on
October 1,1998 (the "Effective Date") and continue for [****] calendar quarters
thereafter, unless sooner terminated hereunder.
10.2. TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement
at any time with at least ninety (90) days' written notice for any reason or no
reason. In the event of such termination, neither Party shall have any liability
to the other except as follows:
(a) If Juno terminates the Agreement pursuant to this Section 10.2,
within thirty (30) days following such termination Juno will refund to The
Hartford any unearned portion of the Guaranteed Advertising Commitment (but not
any Marketing Allowances or Ad Transmission Allowances), and The Hartford's only
additional payments to Juno will be the Ongoing Royalties and One-Time
Acquisition Fees earned prior to termination.
(b) If The Hartford terminates this Agreement pursuant to this Section
10.2, then, (a), The Hartford will pay Juno the Guaranteed Advertising
Commitment per Section 5.2 for all quarters remaining in the original [****]
term, and such payments shall continue to be made on a quarterly basis, but The
Hartford will have no obligation to continue paying the Marketing Allowance or
Ad Transmission Allowance; (b) within thirty (30) days following such
termination, The Hartford will continue to pay to Juno all One-Time Acquisition
Fees that were earned prior to termination; (c) The Hartford will continue to
pay to Juno all Ongoing Royalties contemplated under Section 5.3 (b); and (d)
within thirty (30) days following such termination, The Hartford shall pay Juno
for any Ad Bundles that have been developed, but for which Juno has not yet been
actually paid, and any Ad Transmission Allowance costs which Juno has incurred
but for which it has not been compensated .
10.3. TERMINATION FOR CAUSE.
(a) Either Party may terminate this Agreement upon thirty (30) days'
written notice if the other Party materially breaches any of the terms of this
Agreement provided, however, that this Agreement will not terminate if the
non-terminating party has cured the breach within the thirty (30) day period.
(b) Either Party may terminate this Agreement, effective immediately
upon written notice, if: (i) all or a substantial portion of the assets of the
other Party are transferred to an assignee for the benefit of creditors, to a
receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against
the other Party for relief under bankruptcy or similar laws and such
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[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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proceeding is not dismissed within sixty (60) days; or (iii) the other Party is
adjudged bankrupt or insolvent.
10.4. POST TERMINATION MARKETING. In the event of termination of this
Agreement, regardless of cause, Juno agrees that it will not allow a future
personal lines insurance partner to advertise to the Juno Subscribers who have
policies in force with The Hartford (and who signed up for at least one of those
policies through a Co-Developed Program) for a minimum of [****] years after the
date of termination or expiration. The Hartford may sell additional products to
such Juno Subscribers at the request of such Juno Subscribers. Juno will receive
any One-Time Acquisition Fees and Ongoing Royalties on such sales, as if they
occurred prior to termination. The Hartford will provide to Juno quarterly a
list of Juno Subscribers who have signed up for and/or cancelled policies with
The Hartford.
11. GENERAL.
11.1. GOVERNING LAW; VENUE. This Agreement and its enforcement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflicts-of-law principles. Each party irrevocably
consents to the exclusive jurisdiction of the courts of the State of New York
and the federal courts situated in the State of New York in connection with any
action arising under this Agreement.
11.2. FORCE MAJEURE. Neither party shall be liable for failure to perform
any obligation under this Agreement where such failure is due to fire, flood,
labor dispute, natural calamity, or acts of the government or if such causes are
otherwise beyond the control of such party.
11.3. SEVERABILITY. If any provision of this Agreement is deemed by a court
of competent jurisdiction to be unenforceable or contrary to any applicable law
or regulation, such provision shall be enforced to the maximum extent permitted
by law and to effect the parties' fundamental intentions hereunder, and the
remainder of this Agreement shall continue in full force and effect.
11.4. ASSIGNMENT. This Agreement is not assignable by either party without
the prior written consent of the other party, except that this Agreement may be
assigned by Juno to any of its now current direct or indirect general partners.
All the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of, and shall be enforceable by the respective successors
and assigns of the Parties.
11.5. NOTICES. Notices and other communications hereunder shall be sent to
the parties at their respective addresses set forth beneath their signatures
below or to such other address as a party shall notify the other in writing.
Notices and communications shall be sent by overnight mail or facsimile
transmission and shall be deemed delivered only when received by the intended
recipient.
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[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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11.6. NO WAIVER. The failure of either Party to partially or fully exercise
any right or the waiver by either Party of any breach, shall not prevent a
subsequent exercise of such right or be deemed a waiver of any subsequent breach
of the same or any other term of this Agreement.
11.7. ENTIRE AGREEMENT. This Agreement, including the Attachment hereto,
sets forth the entire agreement between the Parties on this subject and
supersedes all prior negotiations, understandings and agreements between the
Parties concerning the subject matter. No amendment or modification of this
Agreement shall be made except by a writing signed by the Party to be bound
thereby or the successor or assign of such Party.
11.8. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document.
11.9. Non-Hiring or Solicitation of Employees. During the term of this
Agreement and for a period of two (2) years following termination or expiration
of this Agreement, neither Party shall solicit or offer employment to any
employee of the other Party who was substantially involved in the Relationship
between the Parties without the prior written consent of the other Party.
11.10. SURVIVAL. The following provisions shall survive the termination or
expiration of this Agreement for any reason: Article 1 (DEFINITIONS); Section
3.3 (PUBLICITY; USE OF MARKS); Section 3.7 (CONFIDENTIALITY); Section 5.2
(MINIMUM PAYMENT FEE); Section 5.3 (VARIABLE PAYMENT FEE); Article 6
(PROPRIETARY RIGHTS); Article 7 (WARRANTIES); Article 8 (INDEMNIFICATION);
Article 9 (LIMITATION ON LIABILITY); Section 10.2 (TERMINATION WITHOUT CAUSE);
Section 10.4 (POST TERMINATION MARKETING); and this Article 11.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed below
by their duly authorized signatories.
JUNO ONLINE SERVICES, L.P.
By: /s/ Charles Ardai
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Title: President
----------------------------
THE HARTFORD FIRE INSURANCE COMPANY, on behalf of itself and its affiliated
property/casualty insurance companies
By: /s/ The Hartford Fire Insurance Company
---------------------------------------
Title: President
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