EXHIBIT 10.10
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Platinum Premiere Partner Package Agreement
This Platinum Premiere Partner Package Agreement (the "Agreement"),
effective as of 10-1 , 1999 (the "Effective Date"), is made and entered into
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by and between EarthLink Network, Inc. a Delaware corporation, and iOwn, Inc.
("iOwn"), a California corporation.
RECITALS
WHEREAS, EarthLink is an Internet service provider which owns, licenses,
operates or distributes online information, communication, and transaction
services through the EarthLink/Sprint Service;
WHEREAS, iOwn is an online provider of home financing and related products
which owns, operates and maintains the iOwn Site, through which iOwn provides,
among other things, the Services;
WHEREAS, the parties desire that iOwn provide the Services through the Co-
Branded Site as the Default Provider of real estate multiple listing and
mortgages on the EarthLink Finance Portal and through the EarthLink Personal
Start Page; and
WHEREAS, the parties desire that EarthLink provide links from the EarthLink
Site to the Co-Branded Site so that EarthLink Members and Internet users may
access such Services.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and other valuable and sufficient consideration, the receipt of which is hereby
acknowledged, EarthLink and iOwn agrees as follows:
TERMS
DEFINITIONS. The following definitions shall apply to the Agreement:
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1.1. "Affiliate" means, With respect to either party, any person or entity
at any time Controlling, Controlled by or under common Control with that party.
1.2. "Banner Advertisement" means a rotating or permanent banner
advertisement located on the EarthLink Site no smaller than 468 pixels by 60
pixels (or such other dimensions as the parties may from time to time agree upon
in writing), which permits users to navigate directly to a page on the
Co-Branded Site selected by iOwn (and subject to EarthLink's reasonable
approval).
1.3. "Co-Brand" means that a party will cause its Web page to display the
other party's Marks in a manner that is equal in prominence and position to its
own Marks appearing thereon.
1.4. "Co-Branded Site" means a version of the iOwn Site created, provided,
served and maintained by iOwn within which certain Web pages (including the fast
page linked to from the EarthLink Site) are Co-Branded with the EarthLink/Sprint
Marks and certain other Web pages are not Co-Branded with the EarthLink/Sprint
Marks.
1.5. "Company Information" means collectively the Confidential Information
and Trade Secrets. Company Information also includes information, which has been
disclosed to the disclosing party by a third party, and that the disclosing
party is obligated to treat as confidential or secret. EarthLink's Company
Information includes, without limitation, the names, contact and financial
information (including, but not limited to e-mail addresses) provided by members
on the EarthLink Site and any traffic data and unique user information related
to the EarthLink Site.
1.6. "Confidential Information" means any and all information related to
the services and/or business of a party that does not constitute a Trade Secret
and that is treated as confidential or secret by the party (that is, it is the
subject of efforts by the disclosing party that are reasonable under the
circumstances to maintain its secrecy) including, but not limited to, the terms
and conditions of this Agreement. iOwn's Confidential
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Information includes, without limitation, Leads, conversion of unique site
visitors and conversion of page views data. Confidential Information shall not
include information (a) already lawfully known to or independently developed by
the receiving party, (b) disclosed in published materials, (c) generally known
to the public, or (d) lawfully obtained from any third party without any
obligation of confidentiality.
1.7. "Control," "Controlling" and "Controlled" means possessing, directly
or indirectly, the power to direct or cause the direction of the management and
policies of an entity or other person, whether through ownership of voting
securities, or by contract.
1.8. "EarthLink Competitive Services" means any Internet access services,
telephone services (whether long distance, wireless or local), Internet
telephony services, telecommunications services (including without limitation,
ISDN, frame relay, ADSL, etc.), Web hosting services, e-mail services (free or
otherwise), start page services, or portal services, except such services
provided by EarthLink and Sprint and those services and products offered by
EarthLink and Sprint.
1.9. "EarthLink Member" means any authorized user of the EarthLink/Sprint
Service.
1.10. "EarthLink Personal Start Page" refers to that page which is
available to all EarthLink Members when such EarthLink Members access the
EarthLink Site. EarthLink's Personal Start Page may be modified by EarthLink
Members from time to time, and in their discretion. See attachment to Exhibit C.
1.11. "EarthLink Premiere Partners" means a third party entering into or
which has entered into an extensive co-promotional partnership with EarthLink,
which EarthLink designates, its "Premiere Partnership Program" or such other
name as EarthLink may devise from time to time. EarthLink will identify its
Premiere Partners in writing to iOwn as needed to implement the terms of this
Agreement. See attachment to Exhibit C.
1.12. "EarthLink Site" means, collectively, all pages of EarthLink's
various Web sites, the EarthLink Personal Start Page, the EarthLink Finance
Portal and any other Web pages owned or controlled by EarthLink available
through xxx.xxxxxxxxx.xxx, or any successor site thereto available through the
EarthLink/Sprint Service.
1.13. "EarthLink Finance Portal" means those Web pages selected by
EarthLink that EarthLink designates as the EarthLink Finance Portal, including
without limitation, any Web pages owned or hosted by a third party provider.
1.14. "EarthLink/Sprint Service" means the EarthLink narrowband, and not
broadband, dial-up Internet access service.
1.15. "EarthLink Real Estate Web Channel" means the categories related to
mortgage and real estate content contained on the EarthLink Site selected by
EarthLink to be included in the EarthLink Real Estate Web Channel which will be
accessed via a link from the EarthLink Personal Start Page(Should EarthLink
change the EarthLink Real Estate Web Channel to the EarthLink Real
Estate/Mortgage Web Channel, iOwn shall be the Default Provider of such
EarthLink Real Estate/Mortgage Web Channel).
1.16. "eLink" means the email newsletter program employed by EarthLink
through which it provides notices and information regarding, for instance, new
services by means of email mailings to EarthLink Members.
1.17. "Guaranteed Leads" shall have the meaning set forth in Section 2.2
(b).
1.18. "Guaranteed Leads Fee" shall have the meaning set forth in Section
2.l (e).
1.19. "Initial Term" shall have the meaning set forth in Section 6.1
herein.
1.20. "iOwn Icon" means any graphical or textual icon, which is capable of
hyperlinking to the Co-Branded Site including, but not limited to, any Banner
Advertisements and Promotional Placements.
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1.21. "iOwn Site" means, collectively, all points of presence and/or
services maintained from time to time by or on behalf of iOwn or its Affiliates
on the Internet at (i) the URL xxxx.xxx (and any replacement or successor
thereto), (ii) each other URL having the xxxx.xxx domain (and any replacement or
successor thereto), and (iii) such other URLs as iOwn may notify EarthLink from
time to time.
1.22. "Lead" means a visitor originating from the EarthLink Site who
completes and clicks the "submit" button within the PreApproval or Full
Application sections of the Co-Branded Site and who passes iOwn's credit filter,
provided such visitor has not qualified as a Lead previously under this
Agreement unless such visitor actually purchased an iOwn product and is a bona
fide purchaser of additional iOwn products. EarthLink acknowledges that iOwn
tracks visitors to the Co-Branded Site for a period of ninety (90) days from the
date such visitor initially visited the Co-Branded Site from the EarthLink Site.
Therefore, EarthLink further acknowledges that iOwn will track any visitor who
initially navigates from the EarthLink Site to the Co-Branded Site for a period
of ninety (90) days and will count such visitor as a Lead (provided the other
requirements above are met), regardless of how such visitor returns to the Co-
Branded Site during such ninety (90) day time period. However, if a visitor
returns to the Co-Branded Site through means other than through the EarthLink
Site more than ninety (90) days after visiting the Co-Branded Site via the
EarthLink Site, iOwn will not be able to track such visitor as an EarthLink Lead
and such visitor will not be credited as a Lead. EarthLink acknowledges that any
first time visitor to the Co-Branded Site from the EarthLink Site which has
visited an iOwn Site (through a different iOwn promotional partner) within the
ninety (90) days immediately preceding the visit to the Co-Branded Site, shall
not be considered a Lead for purposes of this Agreement.
1.23. "Leads Fee" shall have the meaning set forth in Section 2.1(f).
1.24. "Marks" means any trademark, trade name, service xxxx, logo, slogan
and copyright and proprietary notices associated with a party's products or
services as contained in Exhibit A and Exhibit B.
1.25. "Default Provider" means the provider of a service or product that a
user will automatically view when they access the EarthLink Site unless the user
affirmatively acts to change the Default Provider option after logging onto the
EarthLink Site. EarthLink has only one Default Provider per EarthLink Site
category.
1.26. "Promotion Fee" has the meaning assigned in Section 2.1(d).
1.27. "Promotional Placement" means a graphical or text link located on
the EarthLink Site through which users may directly link to a location on the
Co-Branded Site to be determined by iOwn (subject to EarthLink's reasonable
approval).
1.28. "Renewal Term(s)" shall have the meaning set forth in Section 6.1
herein.
1.29. "Services" shall be limited to (i) presenting through a World Wide
Web site online multiple real estate listing information and services, (ii)
presenting through a World Wide Web site online mortgage information and
services, (iii) providing for the processing of any and all transactions arising
from such multiple real estate listing services and mortgage services, and (iv)
providing customer support to such Internet users regarding such multiple real
estate listing services and mortgage services and each such transaction. Sale by
Owner real estate services provided by iOwn shall not, under this Agreement, be
promoted by EarthLink.
1.30. "Sprint" means, collectively, Sprint Corporation and Sprint
Communications Company L.P.
1.31. "Term" means the Initial Term and any Renewal Term(s) of this
Agreement as defined in Section 6.1 herein.
1.32. "Territory" means the United States and, as mutually agreed upon by
the parties, other areas. The EarthLink Site is accessible to users on a
worldwide basis, however, EarthLink does not necessarily provide services to
such users.
1.33 "Trade Secrets" means all non-public information whether tangible or
intangible related to the services or business of the disclosing party that (a)
derives economic value, actual or potential, from not being
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generally known to or readily ascertainable by other persons who can obtain
economic value from its disclosure or use; and (b) is the subject of efforts by
the disclosing party that are reasonable under the circumstances to maintain its
secrecy, including, without limitation, (i)marking any information reduced to
tangible form clearly and conspicuously with a legend identifying its
confidential of trade secret nature; (ii)identifying any oral communication as
confidential or secret immediately before, during, or after such oral
communication; or (iii) otherwise treating such information as confidential or
secret. Assuming the criteria in clauses (a) and (b) above are met, Trade
Secrets includes information, without regard to form, including, but not limited
to, technical and nontechnical data, formulas, patterns, designs, compilations,
computer programs and software, devices, inventions, methods, techniques,
drawings, processes, financial data, financial plans, product plans, lists of
actual or potential customers and suppliers which are not commonly known by or
available to the public, research, development, and existing and future
products.
2. OBLIGATIONS OF THE PARTIES.
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2.1. Duties and Obligations of iOwn. In connection with this Agreement,
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iOwn shall have the following duties and obligations:
(a) License. During the Term, and subject to the provisions of
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Section 2.3 herein, iOwn grants to EarthLink a nonexclusive,
royalty-free, license throughout the Territory to use, reproduce,
display, and distribute iOwn's Marks (as defined in Exhibit B) in
connection with links to or from, or in conjunction with, the
EarthLink Site, or in or on any other media including, but not
limited to any promotional material or any of EarthLink's
partners' Web sites, but in each case only as reasonably
necessary for EarthLink to perform as contemplated by this
Agreement.
(b) The Services. iOwn shall provide the Services in accordance with
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the Service Specifications set forth in Exhibit D hereto through
the Co-Branded Site and as the Default Provider of the real
estate multiple listing services and mortgage services, on the
EarthLink Finance Portal on the EarthLink Site and through the
EarthLink Personal Start Page. Features to be offered by iOwn
include, but are not limited to, iOwn's "RateShopper" calculator,
"Afford" calculator, "Choose the right mortgage" calculator,
"Should you refinance?" calculator, "Closing Costs" tool, "Rent
vs. Buy" calculator, "Rate Watch" tool, "HomeScout" listings
search engine and links to the iOwn mortgage applications:
Preapproval, Prequalification and Full Application as listed in
Exhibit G. The Services accessible through the EarthLink Site
shall link only to the Co-Branded Site. iOwn shall design,
create, edit, manage, update and maintain the Co-Branded Site for
the purpose of providing Internet users with access to the
Services on a twenty-four (24) hours per day, seven (7) days per
week basis, such that the Services provided through the Co-
Branded Site will retain parity with the Services provided by
iOwn to any third party or through the main iOwn Site in terms of
freshness of content, services and features. During the Term,
iOwn agrees to (i) work diligently with EarthLink to integrate
the Services into the EarthLink Site and (ii) assist EarthLink in
a commercially reasonable manner to xxxxxx usage and enjoyment of
the Services by EarthLink Members on an on-going basis.
(c) Billing, Processing and Collection. iOwn shall be solely
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responsible for all processing that arises out of any and all
transactions (whether they are conducted through the telephone,
by mail, or electronically) that are conducted through the Co-
Branded Site including, without limitation, any and all billing,
collection, refunding, exchanging of goods and/or services,
crediting, and maintenance of records corresponding to such
transactions. Further, iOwn hereby agrees and acknowledges that
iOwn shall conduct all such processing in a professional and
workmanlike manner, on a timely and efficient basis.
(d) Promotion Fee. iOwn shall pay to EarthLink the promotion fee as
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follows (the "Promotion Fee"): (i) [*]
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within five (5) days of the Effective Date, or of a Renewal Date,
as applicable; (ii) [*] within thirty (30) days following the end
of [*] after the Effective Date, or of a Renewal Date, as
applicable; (iii) [*] within thirty (30) days following the end
of [*] after the Effective Date, or of a Renewal Date, as
applicable; and (iv) [*] within thirty (30) days following the
end of [*] after the Effective Date, or of a Renewal Date, if
applicable.
(e) Guaranteed Leads Fee. In addition to the Promotion Fee, iOwn
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shall pay to EarthLink the guaranteed leads fee as follows (the
"Guaranteed Leads Fee"): (i) [*] of the Effective Date, or on a
Renewal Date, as applicable; (ii) [*] within thirty (30) days
following the end of [*] after the Effective Date or of a Renewal
Date, as applicable; (iii) [*] within thirty (30) days following
the end of [*] after the Effective Date, or of a Renewal Date, as
applicable; and (iv) [*] within thirty (30) days following the
end of [*] after the Effective Date, or of a Renewal Date, if
applicable.
(f) Additional Leads. In addition to the Promotion Fee and the
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Guaranteed Leads Fee, iOwn shall pay to EarthLink the sum of [*]
multiplied by the number of Leads generated under this Agreement
in excess of the Guaranteed Leads (the "Leads Fee"). The Leads
Fee shall be paid to EarthLink on a cumulative basis within
thirty (30) days following the end of each calendar month that
the Leads are generated during the Initial Term and each Renewal
Term, if any, accompanied by a report from iOwn supporting each
Leads Fee.
(g) Customer Support. iOwn shall provide, in a professional and
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workmanlike manner, customer support regarding the Services
offered to EarthLink Members through the Co-Branded Site, and the
purchasing and ordering thereof. iOwn hereby agrees and
acknowledges that such customer support shall be accessible by
EarthLink Members during regular business hours through a toll
free telephone number provided, paid for and maintained
exclusively by iOwn, which shall be referenced in the Co-Branded
Site.
(h) Competitive Advertising. iOwn shall not display advertising of
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any kind (co-operative or otherwise) for, or otherwise promote in
any way, any EarthLink Competitive Services on any page of the
Co-Branded Site. The current list of providers of Competitive
Services, which is subject to change by EarthLink in its sole
discretion, is attached hereto as Exhibit E.
(i) Premiere Partners. iOwn shall set aside and reserve an amount of
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space situated on the uppermost portion of the screen in every
page of the Co-Branded Site, which space shall be suitably
sizable, but not to exceed [*] of the area of the page above the
fold, in order to incorporate branding from EarthLink Premiere
Partners. EarthLink Premiere Partners will not include any of
iOwn's competitors as determined by iOwn in its sole discretion.
The current list of iOwn competitors is attached hereto as
Exhibit F. iOwn shall, upon EarthLink's direction, incorporate
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such EarthLink Premiere Partners branding into the space
referenced above in any or all pages of the Co-Branded Site. iOwn
agrees and acknowledges that EarthLink may, in its sole
discretion, from time to time add or remove such EarthLink
Premiere Partners branding from the Co-Branded Site and that iOwn
will work together with EarthLink to incorporate any
modifications to such EarthLink Premiere Partners branding. This
presence of EarthLink Premiere Partners will be limited to one of
the following: one logo, GIF or HTML link, or branding, which
shall be mutually agreed upon by both EarthLink and iOwn. The
presence shall link to a Co-
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Branded Site of EarthLink Premiere Partners. The parties will
work together to create designs that are suitable, in EarthLink's
sole discretion, for each and all of these Co-Branded pages, and
iOwn will provide EarthLink with design specifications and sample
designs within thirty (30) business days after the Effective Date
in order to allow EarthLink to generate new EarthLink Premiere
Partners branding. iOwn shall execute any changes to pages of the
Co-Branded Site required under this Section 2.l(i).
(j) User Information. iOwn shall not send unsolicited emails to any
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EarthLink Member. iOwn may send promotional email messages to
EarthLink Members who have provided their email addresses
directly to iOwn. Under no circumstances will iOwn send or enable
others to send email messages to EarthLink Members, which promote
EarthLink Competitive Services. In no event shall iOwn offer to
any third party a list which would permit such third party to
identify the iOwn registrant as an EarthLink Member.
(k) Reports/Tracking Leads. Within thirty (30) days after the last
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day of each calendar month, iOwn will provide EarthLink with a
monthly report of Leads generated hereunder. iOwn shall not use
any means whatsoever, including without limitation, (i)
encouraging visitors to bookmark the iOwn Site or Co-Branded Site
or (ii) sending promotional emails to visitors which link to the
iOwn Site or Co-Branded Site, to attempt to circumvent the way
EarthLink Leads are tracked under this Agreement.
(l) Audit. No more than once per calendar year, during the Term of
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the Agreement, and during the one (1) year period immediately
following the Term, EarthLink shall have the right, upon
reasonable notice, during normal business hours, at EarthLink's
own expense, through an independent auditor chosen by EarthLink,
to audit iOwn's books, records and logs that relate to Leads, the
Promotion Fee or other payments owed to EarthLink hereunder. If
an audit of the appropriate records, books of account or logs
reveals that iOwn has understated the amounts owed to EarthLink
under this Agreement for the period under audit, then iOwn shall
promptly pay any amounts owed to EarthLink. If the amount of
underpayment for the period under audit equals or exceeds five
percent (5%) of the total mount owed during such period, then
iOwn shall reimburse EarthLink for all reasonable costs and
expenses incurred in connection with conducting the audit.
(m) Other Restrictions on Goods and/or Services Offered. iOwn shall
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not sell, offer, attempt to sell or offer, or otherwise promote
in any way, through the Co-Branded Site, any goods or services
that are illegal, or which in EarthLink's reasonable discretion,
constitute pornographic or similarly adult-themed material; get
rich quick programs, pyramid schemes, or any goods or services
which involve deceptive marketing or commercial practices that
are impressible under United States federal or state law. iOwn
agrees and acknowledges that if EarthLink determines, in its sole
discretion, that iOwn has in any way violated this Section
2.1(m), and that violation is not corrected by iOwn within five
(5) business days of written notification from EarthLink to iOwn,
then, in addition to any and all remedies available to EarthLink
hereunder or otherwise, EarthLink may immediately remove all iOwn
related content, advertisements, promotions, references and links
from the EarthLink Site and any other promotional medium.
(n) Technical Implementation. iOwn shall work in good faith with
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EarthLink's Account Management Department as to account matters
and with EarthLink's Member Services and Support Department as to
technical issues.
(o) Late Payment. All mounts owed by iOwn to EarthLink hereunder not
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paid when due and payable will bear interest from the date such
amounts are due and payable at the rate of 1.5% per month (or the
maximum rate allowed by law).
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2.2. Duties and Obligations of EarthLink. In connection with this
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Agreement, EarthLink shall have the following duties and obligations:
(a) License. During the Term, and subject to the provisions of
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Section 2.3, EarthLink grants to iOwn a nonexclusive,
nonsublicenseable, nontransferable, fully paid-up license,
throughout the Territory, to use, reproduce, display and
distribute the EarthLink/Sprint Marks (as defined in Exhibit A),
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and any and all intellectual property rights contained therein
exclusively on the Co-Branded Site or in or on promotional
material, but only as such use is reasonably necessary for iOwn
to perform as contemplated by this Agreement.
(b) Guaranteed Leads. In exchange for the Guaranteed Leads Fee,
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EarthLink shall provide [*] Leads during the Initial Term and any
Renewal Term of this Agreement as applicable (the "Guaranteed
Leads"). If upon the scheduled date for expiration EarthLink has
failed to provide the Guaranteed Leads during such Initial Term
or Renewal Term, then such Initial Term or Renewal Term shall be
automatically extended until iOwn has received, in the aggregate,
the Guaranteed Leads and such failure shall not constitute a
breach of this Agreement; provided, however, that the Initial
Term or Renewal Term shall not be so extended if this Agreement
is terminated by either party early in accordance with Sections
2.3, 3.1(c), 3.2(c), 6.2, 7.13 or Exhibit D of this Agreement.
(c) Managing the Services. Throughout the Term, EarthLink will
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provide and maintain the Promotional Placements and Banner
Advertisements and perform the other obligations specified in
Exhibit C hereto, in accordance with the provisions contained in
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that Exhibit C and the terms and conditions of this Agreement.
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Upon receipt of the Services in the format described herein,
EarthLink shall include the Services as the Default Provider of
the real estate multiple listing services and mortgage services
on the EarthLink Site. Notwithstanding the foregoing, iOwn
acknowledges and agrees that EarthLink Members may cause the
multiple real estate listing and mortgage services providers
accessible through the EarthLink Site to be provider(s) other
than iOwn. iOwn acknowledges and agrees that EarthLink has other
promotional programs through which certain partners promote the
EarthLink/Sprint Service and provide new EarthLink Members to
EarthLink. iOwn further acknowledges and agrees that certain
promotional partners require the ability to restrict the
advertising that appears on the EarthLink Site of EarthLink
Members brought to EarthLink through such promotional partner.
Therefore, iOwn agrees that EarthLink retains the right to remove
the Services from the EarthLink Site (at EarthLink's sole
discretion), in the event that a promotional partner of EarthLink
requires that such a deletion or move be made, and then such
deletion or move will only be effective as regards the EarthLink
Site accessible by EarthLink Members brought to EarthLink through
the requesting promotional partner.
(d) Maintenance and Implementation of Services. During the Term,
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EarthLink agrees to (i) work diligently with iOwn to integrate
the Services into the EarthLink Site and (ii) assist iOwn in a
commercially reasonable manner to xxxxxx usage and enjoyment of
the Services by EarthLink Members on an on-going basis. EarthLink
shall launch the Co-Branded Site within thirty (30) days of
receipt of such site materials and data from iOwn, assuming iOwn
has met the format requirements required of such site materials
and data as mandated in this Agreement.
(e) User Information. EarthLink acknowledges that all information
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provided directly by users of the Co-Branded Site to iOwn belongs
solely to iOwn.
2.3. Promotional Material/Press Releases. Each party requires that each use
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of its Marks or the Marks of its licensors are in accordance with Exhibit A, in
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the case of EarthLink, and Exhibit B, in the case of iOwn. Prior to the initial
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launch of any Web pages or other Internet locations branded with the other
party's Marks including,
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but not limited to, the Co-Branded Site or the release of any marketing,
advertising, press releases, or other promotional materials that reference the
other party and/or the other party's Marks, the releasing party shall submit a
written request for approval to the other party together with a copy of the
materials to be released, which request shall be made no less than ten (10)
business days prior to the requested release date (the other party shall not
unreasonably withhold or delay the granting of its approval thereof). If the
releasing party has not received a written negative response from the other
party within five (5) days after request for approval, approval has been granted
from the other party to the releasing party. Title to and ownership of the
respective owner's Marks shall remain with the owner. The licensee shall not
take any action inconsistent with the owner's ownership of the Marks and any
benefits accruing from use of such Marks shall automatically vest in the owner.
Neither party shall create any combination Marks with the other party's Marks.
If a licensee's use of the Marks does not conform to the owner's quality
standards in the owner's reasonable opinion, then the owner will notify the
licensee in writing to the licensee of such nonconformance and such notice shall
be delivered by United States mail, registered or certified or by reliable
personal delivery, overnight courier service, with proof of service, and the
licensee shall have thirty (30) days to cure such nonconformance. If the
nonconformance is not cured within such period, the owner may immediately
terminate this Agreement upon written notice to the licensee.
2.4. Press Releases. iOwn acknowledges and agrees that EarthLink shall
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within ten (10) business days of the Effective Date, make the first public
announcement, subject to prior approval by iOwn, regarding this Agreement and
the parties' relationship established hereby. All other press releases are
subject to both parties' prior written consent.
2.5. Non-exclusive Engagement. iOwn agrees that EarthLink may, in its sole
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discretion, retain third parties which provide services and functions similar or
identical to the Services and any other services or functions being provided by
iOwn under this Agreement for inclusion in the EarthLink Site, as EarthLink may
choose in its sole discretion subject to conditions of this Agreement
2.6. Reports. Within thirty (30) calendar days after the last day of each
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calendar month, EarthLink will provide iOwn with a monthly report of page views,
unique users(to the extent EarthLink tracks unique users) and impressions
pertaining to each page with iOwn brand features on the EarthLink Site subject
to EarthLink's ability to retrieve such data.
2.7. Customer Support. EarthLink provides customer support regarding the
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EarthLink/Sprint Service offered to iOwn visitors through the EarthLink Site.
EarthLink hereby agrees and acknowledges that such customer support shall be
accessible by iOwn visitors during regular business hours through a toll free
telephone number provided, paid for and maintained exclusively by EarthLink,
which shall be referenced in the EarthLink Site.
2.8. Premiere Partners. EarthLink shall promote iOwn as a Premiere Partner
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where, in its sole discretion, EarthLink finds it appropriate to do so.
EarthLink may not display or sell any advertising from competitors of iOwn on
the Co-Branded Site. See Exhibit F for a list of iOwn competitors; such list may
be updated by iOwn, in good faith and at the sole discretion of iOwn, and
submitted to EarthLink at the end of each calendar month.
2.9 Other Restrictions on Goods and/or Services Offered. EarthLink does
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not sell, offer and it does not attempt to sell or offer, (nor will
EarthLink sell, offer or attempt to sell or offer) or otherwise
promote in any way, through the EarthLink Site goods or services that
are illegal, or which in EarthLink's reasonable discretion, constitute
pornographic or similarly adult-themed material, get rich quick
programs, pyramid schemes, or any goods or services which involve
deceptive marketing or commercial practices.
3. REPRESENTATIONS AND WARRANTIES.
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3.1. EarthLink. EarthLink represents and warrants to iOwn that:
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(a) EarthLink has the power and authority to enter into and perform
its obligations under this Agreement;
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(b) EarthLink shall at all times comply with all local, state and
federal laws, rules and regulations applicable to the Co-
Branded Site, the EarthLink/Sprint Service and EarthLink's
performance under this Agreement; and
(c) EarthLink has the full right to grant or otherwise permit iOwn
to use EarthLink and Sprint's Marks, and is aware of no claims
by any third parties adverse to any of such intellectual
property rights, except for Sprint's ownership of its Marks
contained in the co-branded EarthLink/Sprint Marks. If
EarthLink's or Sprint's intellectual property rights are
alleged or held to infringe the intellectual property rights of
a third party, EarthLink shall, at its own expense, and in its
sole discretion, (i) procure for iOwn the right to continue to
use the allegedly infringing intellectual property or (ii)
replace or modify the intellectual property to make it non-
infringing; provided, however, if neither option is possible or
economically feasible and if the inability to use such
intellectual property would cause a material breach of this
Agreement (as determined by iOwn), iOwn may immediately
terminate this Agreement upon notice to EarthLink.
3.2. iOwn. iOwn represents and warrants to EarthLink that:
----
(a) iOwn has the power and authority to enter into and perform its
obligations Under this Agreement;
(b) iOwn and the Services shall at all times comply with all local,
state and federal laws, rules and regulations applicable to the
Co-Branded Site, the Services and iOwn's performance under this
Agreement; and
(c) iOwn has the full and exclusive right to grant or otherwise
permit EarthLink to access the Co-Branded Site, to use the
Services and to use iOwn's Marks; and is aware of no claims by
any third parties adverse to any of such intellectual property
rights. iOwn shall, at its own expense, and in its sole
discretion, (i) procure for EarthLink the right to continue to
use the allegedly infringing intellectual property or (ii)
replace or modify the intellectual property to make it non-
infringing; provided, however, that if neither option is
possible or economically feasible and if the inability to use
such intellectual property would cause a material breach of
this Agreement (as determined by EarthLink), EarthLink may
immediately terminate this Agreement upon notice to iOwn. iOwn
has applied for a federal trademark registration for "iOwn,
Inc." and "xXxx.xxx" in the U.S., Canada, Australia and the
U.K. and the "i" logo in the U.S. and Canada (see Exhibit B).
4. CONFIDENTIALITY.
---------------
Each party acknowledges that Company Information may be disclosed to the
other party during the course of this Agreement. Each party agrees that it shall
take reasonable steps, which shall include, at a minimum, the steps it takes to
protect its own Company Information, to prevent the duplication or disclosure of
Company Information, other than by or to its employees or agents who must have
access to the Company Information to perform such party's obligations hereunder,
who shall each agree to comply with the terms of this Section 4 except that each
party may disclose the other party's information to such party's agents,
attorneys and other representatives or any court of competent jurisdiction or
any other party empowered hereunder as reasonably required to resolve any
dispute between the parties hereto. The actions or negligence of the parties,
directors, employees, or agents shall be deemed to be the actions or negligence
of the respective party, with regard to the Confidential Information of the
other party. Each party agrees that if it is required by law to disclose the
other party's Company Information, such disclosing party must first give written
notice of such required disclosure to the other party and permit the other party
to make a reasonable effort to obtain a protective order requiring that the
Company Information so disclosed be used only for the purposes for which
disclosure is required. Each party shall protect the other party's Company
Information during the Term and for two (2) years after the termination of this
Agreement.
5. LIMITATION OF LIABILITY: DISCLAIMER: INDEMNIFICATION.
----------------------------------------------------
EXECUTION COPY
5.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
-----------------------
THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON
CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE
OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL MAKE REPRESENTATIONS OR
WARRANTIES TO ANY END USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY AND IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY REPRESENTATION OR
WARRANTY MADE TO ANY END USER OR THIRD PARTY BY THE OTHER PARTY. THESE
LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED
REMEDIES PROVIDED FOR IN THE AGREEMENT. THE LIMITATIONS SET FORTH IN THIS
SECTION 5.1 SHALL NOT APPLY TO THE PARTIES' INDEMNIFICATION OBLIGATIONS SET
FORTH IN SECTION 5.3 BELOW OR TO THE PARTIES' INJUNCTIVE RELIEF REMEDIES SET
FORTH IN SECTION 5.4 BELOW.
5.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER
----------
PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY OTHER
REPRESENTATIONS OR WARRANTIES REGARDING THE EARTHLINK/SPRINT SERVICE OR THE
SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
5.3. Indemnity. Each party agrees to indemnify, defend and hold harmless
---------
the other party and its officers, directors, employees, agents, successors and
assigns from and against any and all losses, liabilities, damages, penalties and
claims and all related costs and expenses (including reasonable attorneys' fees)
related to claims made by third parties against the indemnified party alleging
that the indemnifying party's Marks or other intellectual property infringe the
patents, copyrights, trademarks or service marks or other intellectual property
rights of such third parties. iOwn agrees to further indemnify, defend and hold
harmless EarthLink from and against all third party claims, causes of action,
liabilities and all associated reasonable costs and expenses relating to any
transactions conducted through, or the quality or nature of products or services
appearing on or provided through, the Services or the Co-Branded Site. EarthLink
agrees to further indemnify, defend and hold harmless iOwn from and against all
third party claims, causes of action, liabilities and all associated reasonable
costs and expenses relating to any transactions conducted through, or the
quality or nature of products or services appearing on or provided through, the
EarthLink Site, excepting the Co-Branded Site. Each party agrees to promptly
notify the indemnifying party in writing of any indemnifiable claim. The
indemnified party shall cooperate in all reasonable respects with the
indemnifying party and its attorneys in the investigation, trial, defense and
settlement of such claim and any appeal arising therefrom. The indemnified party
may participate in such investigation, trial, defense and settlement of such
claim and any appeal arising therefrom, through its attorneys or otherwise, at
its own cost and expense. No settlement of a claim shall be entered into without
the consent, such consent not to be unreasonably withheld, of the indemnified
party unless such settlement provides for the full release of the indemnified
party.
5.4. Injunctive Relief. The parties hereby agree and acknowledge that
-----------------
violation by one party of the provisions of Sections 2.1(j) or 4 may cause
irreparable harm to the other party not adequately compensable by monetary
damages. In addition to other relief, it is agreed that temporary and permanent
injunctive relief shall be available to the parties to prevent any actual or
threatened violation of such provisions as provided by law.
6. TERM, RENEWAL AND TERMINATION.
------------------------------
6.1. Term. The initial term of this Agreement shall be [*] from the
----
Effective Date of this Agreement (the "Initial Term"). After the Initial Term,
this Agreement shall automatically renew (any such renewal date referred to
herein as a "Renewal Date") for separate, consecutive [*] ("Renewal Term(s)")
unless written notice of termination is given by either party thirty (30) days
prior to the expiration of the Initial or Renewal Term.
6.2 Termination. This Agreement may be terminated by the parties as
-----------
follows:
[*] Confidential Treatment Requested
EXECUTION COPY
(a) Except as provided herein, either party may terminate this
Agreement at any time in the event of a material breach by the
other party of this Agreement that remains uncured thirty (30)
days after the breaching party's receipt of written notice of the
breach;
(b) Except as provided herein, either party may terminate this
Agreement immediately if the other party is unable to pay its
debts as due, or enters into or files (or has filed or commenced
against it) a petition, arrangement, action or other proceeding
seeking relief or protection under the bankruptcy laws of the
United States or similar laws of the United States or any state
of the United States;
(c) Either party may terminate this Agreement, at its option, upon
thirty (30) days written notice in the event that either party
discontinues its website. In the event of termination pursuant to
this section, the parties will have no further obligation to each
other following the effective date of termination, and all fees
paid, if any, shall be prorated as of the effective date of the
termination, with appropriate refunds made; and
(d) iOwn may terminate this Agreement, at its option upon fifteen
(15) business days written notice in the event that EarthLink
does not provide [*], such Leads being a part of the Guaranteed
Leads. Such a termination will not result in a refund of any fees
paid by iOwn to EarthLink. If this agreement is terminated under
this Section 6.2(d), EarthLink shall continue to provide Leads
and promote iOwn as provided for in this Agreement, until iOwn
has received, in the aggregate, the Leads for that quarter. If,
subsequent to iOwn's notice of termination and during the
requisite fifteen (15) business days notice period pursuant to
this Section 6.2(d), EarthLink should over-deliver the [*]
required, iOwn shall pay to EarthLink the required Leads Fee of
[*] as set forth in Section 2.1(f). This Leads Fee shall be paid
to EarthLink on a cumulative basis within thirty (30) days
following the termination of this Agreement.
6.3. Effects of Termination. Within one (1) business day after termination
----------------------
of this Agreement for any reason, each party shall purge all links connecting
the EarthLink Site to the Co-Branded Site. Within ten (10) business days after
termination of this Agreement for any reason, each party shall: (i) purge all
Marks as used in connection with this Agreement from any and all computer
systems, files, or storage media within their possession or control; (ii) return
to the other party any and all documents or other media embodying any use of the
other party's Marks; and (iii) certify to the other party in writing that it has
complied with the foregoing obligations. Upon any termination or other
expiration of this Agreement, each of the respective licenses granted in
Sections 2.1 and 2.2 and all other rights of the parties under this Agreement
shall terminate, except that, notwithstanding any of the foregoing, the rights
and obligations under Sections 2.1(j), 2.1(1), 2.1(o), 4, 5, 6.3, 6.4 and 7
shall continue in full force and effect
6.4. No Damages or Indemnification for Termination. Neither party shall be
---------------------------------------------
liable to the other party for any costs or damages of any kind, including
incidental or consequential damages, or for indemnification, solely on account
of the lawful termination of this Agreement, even if informed of the possibility
of such damages.
7. GENERAL PROVISIONS.
------------------
7.1. Independent Contractors. The parties to this Agreement are independent
-----------------------
parties and nothing herein shall be construed as creating an employment
relationship between the parties. Neither party is an agent or representative of
the other party and neither party shall have any right, power or authority to
enter into any agreement for or on behalf of, or incur any obligation or
liability, or to otherwise bind, the other party. The Agreement shall not be
interpreted or construed to create an association, agency, joint venture or
partnership between the parties or to impose any liability attributable to such
a relationship upon either party.
7.2. Entire Agreement. The Agreement, including any exhibits attached
----------------
hereto, constitutes the entire understanding and agreement with respect to its
subject matter, and supersedes any and all prior or
[*] Confidential Treatment Requested
EXECUTION COPY
contemporaneous representations, understandings and agreements whether oral or
written between the parties relating to the subject matter of this Agreement,
all of which are merged in this Agreement.
7.3. Severability of Provisions. In the event that any provision of this
--------------------------
Agreement is found, to be invalid or unenforceable pursuant to judicial decree
or decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
7.4. Assignment. Either party may assign, upon prior written notice to the
----------
other party, this Agreement to a third party as long as such third party is not
a competitor of the other party, in which case the assignment is prohibited. See
Exhibits E and F. Any assignment in violation of the terms hereof shall be void
and of no force or effect.
7.5. Governing Law. The Agreement shall be governed by the laws of
-------------
California without giving effect to applicable conflict of laws provisions. All
actions with respect of this Agreement shall be brought in the federal and state
courts having jurisdiction within California and the parties expressly consent
to the personal jurisdiction of such courts. In the event any litigation or
other proceeding is brought by either party in connection with this Agreement,
the prevailing party in such litigation or other proceeding shall be entitled to
recover from the other party all costs, attorneys' fees and other expenses
incurred by such prevailing party in such litigation.
7.6. Dispute Resolution.
-------------------
(a) Except for the right of either party to apply to a court of
competent jurisdiction for a temporary restraining order, a
preliminary injunction, or other equitable relief to preserve the
status quo or prevent irreparable harm, any and all claims,
disputes or controversies arising under, out of, or in connection
with this Agreement, including any dispute relating to patent
validity or infringement, which the parties have been unable to
resolve by amicable discussion shall be resolved as set forth
below:
(b) If a party feels that a dispute is unlikely to be resolved
amicably by good faith negotiations between the parties, that
party may send written notice, clearly marked "Dispute Notice,"
to the other party of the issues in dispute demanding that the
dispute be settled by binding arbitration in accordance with this
provision. The parties shall then have thirty (30) days from the
date of receipt of the Dispute Notice to attempt resolution of
the dispute by negotiations between their senior officials, or
representatives of such officials having authority to bind the
organizations.
(c) If the matter has not resolved within thirty (30) days of the
Dispute Notice, or if the parties fail to meet within such thirty
(30) day period, either party may require the matter to be
settled by final and binding arbitration by sending written
notice of such election to the other party clearly marked
"Arbitration Demand".
(d) The arbitration shall be conducted pursuant to the commercial
arbitration rules of the American Arbitration Association, in
accordance with the following procedures:
(i) The arbitration tribunal shall consist of three arbitrators.
Each party shall nominate in the request for arbitration and
the answer thereto one arbitrator, and the two arbitrators
so named will then jointly appoint the third arbitrator as
chairman of the arbitration tribunal.
(ii) The decision of the arbitration tribunal shall be final and
binding upon the parties hereto, and may be entered in any
competent court for judicial acceptance of such award and
order of enforcement. Each party hereby submits itself of
such court, but only for the entry of judgment with respect
to the decision of the arbitrators hereunder.
EXECUTION COPY
(iii) The arbitration proceeding shall take in a location to be
mutually agreed by the parties, or if the parties cannot
reach agreement, a location to be selected by the chairman
of the arbitration panel other than the location of the
principal place of business of either party.
(iv) In any arbitration, either party may conduct discovery on
the other party. Such discovery will be conducted
according to procedures determined by the arbitration
tribunal.
7.7. Notices. Except as specifically provided in this Agreement, all
-------
notices required hereunder shall be in writing and shall be delivered by United
States mail, registered or certified or by reliable personal delivery, overnight
courier service, with proof of service, to the parties at their respective
addresses set forth below in this Section 7.7, or at such other address(es) as
shall be specified in writing by such party to the other party in accordance
with the terms and conditions of this Section 7.7. All notices shall be deemed
effective upon personal delivery, or three (3) business days following deposit
with any overnight courier service or with the U.S. Postal System, first class
postage attached, in accordance with this Section 7.7.
If to iOwn: iOwn, Inc.
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
with a copy to: Xxxxx Xxxx, Esq.
Xxxxx and Xxxxxxxxx
000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
If to EarthLink: EarthLink Network, Inc.
0000 Xxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Director of Legal Affairs
with copies to: Xxxxxx Xxxxxxxxx, V.P. Business Development
Xxxxxx Xxxxxxx, V.P. Business Affairs
EarthLink Network, Inc.
0000 Xxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
7.8. Non-Solicitation. During the Term of this Agreement and for a period
----------------
of twelve (12) months following the termination or expiration of this Agreement,
neither party may directly solicit, divert or hire away, or attempt to solicit,
divert or hire away any person employed by the other party with whom such party
had regular contact with during the course of its performance under this
Agreement, unless such person's employment has been terminated for at least six
(6) months or unless the other party gives its prior consent to such hiring,
such consent not to be unreasonably withheld. Notwithstanding the foregoing,
nothing herein shall prevent either party from considering for employment or
hiring any individual, whether or not an employee of the other party, who has
responded to a general solicitation for employment from either party in a
newspaper announcement or other public solicitation.
7.9. Waiver. No waiver of any provision of this Agreement, or any rights
------
or obligations of either party under this Agreement, shall be effective, except
pursuant to a written instrument signed by the party or parties waiving
compliance, and any such waiver shall be effective only in the specific instance
and for the specific purpose stated in such writing.
7.10. Headings. This section and paragraph headings used in this Agreement
--------
are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement.
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7.11. Amendment. The terms and conditions of this Agreement included but
---------
not limited to any and all Exhibits may not be modified or amended other than by
a writing signed by both parties.
7.12. Sprint Intellectual Property Rights. EarthLink markets its Internet
-----------------------------------
access services under the EarthLink/Sprint brand. Therefore, both EarthLink and
Sprint Marks are likely to appear on any Web page that includes an
EarthLink/Sprint brand. To the extent that such Sprint brands or Marks are used,
iOwn acknowledges and agrees that Sprint is a third party beneficiary hereunder
and has the right to enforce any provision of this Agreement that relates to any
intellectual property or Marks of EarthLink or Sprint.
7.13. Force Majeure. Either party shall be excused from any delay or
-------------
failure in performance hereunder caused by reason of any occurrence or
contingency beyond its reasonable control, including but not limited to, acts of
God, earthquake, labor disputes and strikes, riots, war, and governmental
requirements. Notwithstanding the foregoing, a change in economic conditions or
technology shall not be deemed a Force Majeure event. The obligations and rights
of the party so excused shall be extended on a day-to-day basis for the period
of time equal to that of the underlying cause of the delay. In the event of a
force majeure event materially affecting the parties' performance under this
Agreement that lasts for more than thirty (30) days, either party may terminate
this Agreement.
7.14. Execution by Facsimile. This Agreement may be executed and delivered
----------------------
by facsimile and the parties agree that such facsimile execution and delivery
shall have the same force and effect as delivery of an original document with
original signatures, and that each party may use such facsimile signatures as
evidence of the execution and delivery of this Agreement by all parties to the
same extent that an original signature could be used.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date set forth above.
EARTHLINK NETWORK, INC iOWN, INC.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxx X. Xxxxxxxxxxx
-------------------------- -------------------------------
Xxxxxx Xxxxxxxxx
V.P. Business Development Xxx X. Xxxxxxxxxxx
-------------------------------
EarthLink Network, Inc. 000 Xxxx Xxxxxx
0000 Xxx Xxxx Xxxxx Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000)000-0000 Phone: (000)000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
EXECUTION COPY
EXHIBIT A
EarthLink Marks
--------------------------------------------------------------------------------
NOTE: THIS EXHIBIT MAY BE AMENDED IN WRITING FROM TIME TO TIME AS REQUIRED
BY EARTHLINK AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
Trademarks, trade names, logos and other product and proprietary
----------------------------------------------------------------
identifiers.
------------
EarthLink Network(R)
EarthLink Network TotalAccess(TM)
EarthLink Network(R) is a registered trademark of EarthLink Network, Inc.
EarthLink Network TotalAccess(TM) is a trademark of EarthLink Network, Inc.
EarthLink Sprint(SM) and the EarthLink Sprint logo are registered
trademarks of EarthLink Network, Inc. and Sprint Corporation
--------------------------------------------------------------------------------
EXECUTION COPY
EXHIBIT B
xXxx Xxxxx
--------------------------------------------------------------------------------
NOTE: THIS EXHIBIT MAY BE AMENDED IN WRITING FROM TIME TO TIME AS REQUIRED
BY iOWN AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
Trademarks, trade names, logos and other product and proprietary
----------------------------------------------------------------
identifiers.
-----------
iOwn owns the "HomeScout" trademark as registered with the federal
trademark registry.
iOwn has filed with the federal trademark registry an Intent to Use "iOwn,
Inc.", "i" and "xXxx.xxx" in the US, Canada, Australia and the UK. iOwn has
filed with the federal trademark registry Intent to Use the iOwn logo in
the US.
xXxx.xxx
THE BEST LOANS ONLINE
RED color of letter "i" in iOwn is Pantone 485.
Font for "The best loans online" is
Berthold XXX XXX Condensed, bold.
--------------------------------------------------------------------------------
EXECUTION COPY
EXHIBIT C
EarthLink's Promotional Obligations
1. Promotions
EarthLink shall perform the following obligations with respect to the
EarthLink Site("Screen Shots" attachments to this Exhibit C exemplify the
EarthLink promotions to be provided to iOwn):
A. EarthLink Site. EarthLink shall, within EarthLink's reasonable
discretion, include the Services provided by iOwn on the EarthLink Site as
follows:
1. a non-rotating text link above the fold on the EarthLink
Personal Start Page;
2. a non-rotating text link in the top bar on the EarthLink
Finance Portal. This promotional placement will link directly to the
Co-Branded Site;
3. a Promotional Placement in the EarthLink Personal Start Page
Message of the Day rotation, which is a daily changing text message
that appears above the fold on the EarthLink Personal Start Page that
highlights and provides links to interesting and useful products and
services for EarthLink Members;
4. a non-rotating Promotional Placement designated as
"Mortgage/Real Estate," which will link from the EarthLink Real Estate
Web Channel provided through the default provider of such channel. (if
the user changes the default channel provider the Promotional
Placement will not appear on the customizable providers Real Estate
Web Channel) This promotional placement will link directly to the Co-
Branded Site;
5. inclusion of other iOwn related content as agreed between
the parties in writing.
6. a rotation of a Promotional Placement designated as
"Mortgage/Real Estate," which will be placed in the Premiere Partner
section above the fold of the EarthLink Home Page. This promotional
placement will link directly to the Mortgage Co-Branded Site; and
7. other links on site where available and appropriate in
EarthLink's sole discretion.
B. Banner Advertisements. Banner Advertisements on such locations of
the EarthLink Site as determined by EarthLink in its sole discretion.
EarthLink shall deliver at least [*] run of service Banner Advertisements
per month, for a total of [*] run of service Banners Advertisements during
the Initial Term or during each Renewal Term, as applicable, iOwn will
provide any creative to be used for advertisement of iOwn Brand Features or
services.
C. Other Promotional Placements. In addition to the Promotional
Placements described in paragraphs A and B above, such other Promotional
Placements on the EarthLink Site as may be agreed upon by the parties from
time to time.
2. bLink
EarthLink shall place a full page, four (4) color advertisement of iOwn's
Services in each issue of bLink, which is a hard-copy periodical, during the
Term. iOwn advertisements are subject to EarthLink's reasonable editorial
discretion and to be developed by iOwn, in consultation with EarthLink. iOwn
agrees that any iOwn advertisement that appears in bLink must be specifically
targeted at EarthLink Members and must promote the iOwn Mortgage/Real Estate
Services on the EarthLink Personal Start Page.
[*] Confidential Treatment Requested
EXECUTION COPY
3. eLink
iOwn will be profiled as a new EarthLink Personal Start Page service in
eLink, as well as being given text "advertising" space for any special "for
EarthLink Members only" promotions that EarthLink and iOwn might jointly create
to promote the Services.
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[IMAGE OF SCREENSHOT]
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[IMAGE OF SCREENSHOT]
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[IMAGE OF SCREENSHOT]
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EXHIBIT D
Service Specifications
1. Service Interruptions. For the purposes of this Agreement, the
---------------------
following issues are defined as "Service Interruptions":
a) "Complete Outage". means the Co-Branded Site is not reachable by
EarthLink Members for five (5) consecutive minutes or more; provided
however, that iOwn may perform major system upgrades and/or service
maintenance on a scheduled and pre-announced basis which may put the Co-
Branded Site down for up to eight (8) consecutive hours.
b) "Partial Outage". means the Co-Branded Site is reachable by less
than seventy percent (70%) of EarthLink Members, or the response time for a
50K HTML page is greater than thirty (30) seconds for a 56k or faster
modem.
c) "URL Errors". means any errors in URL's, missing pages, or typos
in URLs including any iOwn error that causes EarthLink to present an
incorrect URL on the EarthLink Site, or which causes EarthLink to attempt
to harvest information from an incorrect URL.
2. Response Team. iOwn will at all times during the Term and at iOwn's
-------------
sole cost and expense, maintain a 24 hour a day, 7 day a week a contact person
responsible for monitoring the Co-Branded Site. The contact person will be
available to EarthLink on a 24 hour a day, 7 day a week basis by phone and email
for consultation on Service Interruption issues and to assist in the restoration
of service following a Service Interruption. iOwn will provide EarthLink with
the names and phone numbers and email addresses of its contact person, and
ensure that any changes to the contact information is provided to EarthLink.
EarthLink will at all times during the Term and at EarthLink's sole cost and
expense, maintain a 24 hour a day, 7 day a week a contact person responsible for
monitoring the EarthLink Site. The contact person will be available to iOwn on a
24 hour a day, 7 day a week basis by phone and email for consultation on Service
Interruption issues and to assist in the restoration of service following a
Service Interruption. EarthLink will provide iOwn with the names and phone
numbers and email addresses of its contact person, and ensure that any changes
to the contact information are provided to iOwn.
3. Escalation Procedures for EarthLink.
-----------------------------------
The following measures to be taken by EarthLink in response to Service
Interruptions shall occur when such Service Interruptions are due to errors or
omissions by iOwn personnel or agents. Such measures will not be taken if the
error or omission originates from the actions of EarthLink personnel or agents.
a) In the event of a Complete Outage, the iOwn contact person will
contact EarthLink as soon as practicable following iOwn's identification of
a Service Interruption and will notify EarthLink of the nature of the
Service Interruption and the estimated time of resumption of service.
iOwn's contact person will keep EarthLink notified of progress in resolving
the Service Interruption. If the Service Interruption is estimated to last
longer than thirty (30) minutes, EarthLink will have the option, at
EarthLink's sole discretion, of:
i) removing any links or references to the Co-Branded Site from
the EarthLink Site; or
ii) to redirect any links to any web address or Services
experiencing a Service Interruption, to an explanatory page of
EarthLink's choosing. EarthLink may publish such explanatory page, and
may choose in its sole discretion the wording of any explanatory
messages on such page.
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b) Partial Outage. Shall be managed by iOwn in all respects
identically to a Complete Outage, except that EarthLink will not have the
right to remove any link or reference to the Co-Branded Site.
c) URL Errors. EarthLink will contact iOwn with regards to any URL
Error, and iOwn will work in a commercially reasonable manner to repair
such Service Interruption. EarthLink may remove any links or references on
the EarthLink Site to the Co-Branded Site until such time as the Service
Interruption is repaired to EarthLink's satisfaction. If the URL Error is
not corrected within five (5) business days of first notification,
EarthLink would have the right to remove any links or references on the
EarthLink Site to the Co-Branded Site until such error is cured.
4. iOwn Notice. iOwn will give EarthLink no less than fifteen (15) days
-----------
prior notice of any changes to its URLs or any of its processes and procedures
that will technically affect the manner in which EarthLink links to the Mortgage
Co-Branded Site.
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EXHIBIT E
EarthLink Competitors
NOTE: THIS EXHIBIT E MAY BE AMENDED IN WRITING FROM TIME TO TIME AS REQUIRED BY
EARTHLINK AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
[*]
[*] Confidential Treatment Requested
EXECUTION COPY
Exhibit F
iOwn's [*]
NOTE: THIS EXHIBIT F MAY BE AMENDED IN WRITING FROM TIME TO TIME AS REQUIRED BY
iOWN AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
[*]
[*] Confidential Treatment Requested
EXECUTION COPY
EXHIBIT G.
----------
CO-BRANDED SITE PLAN
1. iOwn Services which may be offered in the Co-Branded Site(this list is not
an exclusive list of Services):
HomeBuying Tools
. How Much Can You Afford? (tool and guide): Helps users quickly assess their
broad home purchasing power through a combination of a calculator and an
educational guide.
. Choose the Right Mortgage (tool and guide): Two tools to help users determine
the right mortgage product, first by comparing monthly payments of different
products, the second by recommending a mortgage and reviewing actual rates
and payments across any number of loans.
. HomeScout: Allows users to search over 750,000 listings around the country
for properties that match their criteria.
. AgentFinder: Allows users to search for an agent by city and state and
provides detailed information on selecting the right agent.
. HomeWatch (not co-branded- notification service): Notification service for
homeowners, which provides customized email alerts regarding refinance
opportunities and recent local home sales.
. HomeValuation (not co-branded- tool): Allows users to estimate a particular
property's value using recent comparable sales data.
. Down Payment Strategies (guide): Helps users to determine their optimal down
payment for their property and how to accumulate the down payment.
. Estimate Your Closing Costs (guide): Review the standard fees in the home
buying process, learn how to compare closing costs to find the lowest loans,
and gain knowledge about lender rates, points and rebates.
. RateWatch (not co-branded- notification service): an e-mail notification
service that allows the user to monitor interest rates for a specific
mortgage, iOwn will e-mail the user when rates reach or fall below a specified
rate.
. Refi Check: Allows user to compare their current mortgage to one offered
through iOwn so they can evaluate refinance opportunities.
. Rent vs. Buy: Allows users to evaluate their current financial situation and
describes how purchasing a home would affect them.
Mortgage Services
. Rate Shopper (tool): Provides an impartial, customized comparison of
available interest rates from a database of national and regional lenders.
Users can specify criteria most important to them in a loan, including rate,
points, product type, etc., and generate a rank-ordered list of rates meeting
their criteria.
. Prequalification: Provides a formal analysis of a borrower's application
information based on a small subset of data, and uses actual lender guidelines
to assess how likely they are to get a loan. Information is password-protected
to ensure security and allow repeated access to the information entered. This
tool generates a certified prequalification letter and worksheet to use with
Realtors and sellers to help in the offer process. This tool is fully iOwn
branded.
EXECUTION COPY
. Preapproval: Allows user to conduct a detailed, real time analysis of their
borrowing situation, without having identified their target property, based on
actual criteria specified by national and regional lenders. Information is
password-protected to ensure security and allow repeated access to the
information entered by the user. This tool is fully iOwn branded.
. Full Application: Captures all required data for to proceed with a loan
application. Information is password-protected to ensure security and allow
repeated access to the information entered, This tool is fully iOwn branded.