{"id":42143,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/co-marketing-agreement-priceline-com-inc-and-e-trade-group.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"co-marketing-agreement-priceline-com-inc-and-e-trade-group","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/co-marketing-agreement-priceline-com-inc-and-e-trade-group.html","title":{"rendered":"Co-Marketing Agreement &#8211; Priceline.com Inc. and E*Trade Group Inc."},"content":{"rendered":"<pre>\n                             CO-MARKETING AGREEMENT\n\n            This Co-Marketing Agreement (the \"Agreement\") is made and entered\ninto this 18th day of February, 1999 (\"Effective Date\"), by and between\npriceline.com Incorporated, a Delaware corporation located at Five High Ridge\nPark, Stamford, CT 06905 (\"Co-Marketer\") and E*TRADE Group, Inc., a Delaware\ncorporation located at Four Embarcadero Place, 2400 Geng Road, Palo Alto, CA\n94303 (\"E*TRADE\") (each a \"Party,\" collectively, the \"Parties\"). This Agreement\nincludes any Exhibits attached hereto and referenced herein.\n\n            WHEREAS, E*TRADE is in the business of providing electronic\nsecurities brokerage services and related products and services;\n\n            WHEREAS, Co-Marketer is in the business of selling consumer goods\nand services primarily over the Internet;\n\n            WHEREAS, the Parties desire to enter into a joint marketing program\npursuant to the terms and conditions of this Agreement;\n\n            NOW THEREFORE, IN CONSIDERATION OF the mutual promises and covenants\nset forth in this Agreement, the Parties agree as follows:\n\n1.    Definitions.\n\n      a. \"Co-Marketer Services\" means Co-Marketer's on-line and related products\nand services available through the Co-Marketer Site.\n\n      b. \"Co-Marketer Site\" means Co-Marketer's web site located at\n  http:\/\/www.priceline.com :   (or any replacement or successor address) and all\nthird party co-branded or mirrored addresses or sites thereof.\n\n      c. \"E*TRADE Adaptive Marketing Program\" has the meaning ascribed to it in\nExhibit A hereto.\n\n      d. \"E*TRADE Dedicated Server\" means a server to be leased by E*TRADE from\nCo-Marketer and located at a service center designated by Co-Marketer, on which\nE*TRADE shall maintain a URL for brokerage account application forms and\ninstructions for the E*TRADE Adaptive Marketing Program. Content on the E*TRADE\nDedicated Server and all transactions effected thereon shall be the exclusive\nproperty of E*TRADE and E*TRADE shall be solely responsible for the preparation,\nmaintenance and modification of the content included thereon. The E*TRADE\nDedicated Server shall only contain content for, and shall only be operated for\nthe purposes of, the E*TRADE Adaptive Marketing Program. The E*TRADE Dedicated\nServer will be maintained by Co-Marketer and its designated service agent.\n\n\n      e. \"E*TRADE IPO Program\" has the meaning ascribed to it in Exhibit A\nhereto.\n\n      f. \"E*TRADE Services\" means E*TRADE's electronic securities brokerage\nservices and related products available at the E*TRADE Site.\n\n      g. \"E*TRADE Site\" means E*TRADE's web site located at\n  http:\/\/www.etrade.com :   (or any replacement or successor address).\n\n      h. \"Link\" means a visible graphic or textual indication located within a\nweb site page which, when selected by a user's browser, directs the user's\ninternet browser connection onward to a specified page on the same or any other\nweb site via a uniform resource locator (URL) (whether perceptible or not) and\nwhich establishes a direct connection between the browser and the new page.\n\n      i. \"Submitted Application\" shall mean a funded customer application to\nopen a securities brokerage account (non-IRA) with E*TRADE that (i) is completed\nin all material respects in accordance with the instructions provided by E*TRADE\nin the application kit or on line application page, (ii) is received by E*TRADE,\nand (iii) the applicant accessed the E*TRADE application page through a direct\nLink from the Co-Marketer. For purposes of this Section 1i, \"funded\" shall mean\nE*TRADE's receipt of the signed hardcopy of an applicant's brokerage account\napplication, together with a check or other acceptable form of payment in the\nminimum amount of $500.00 to be used as such customer's initial deposit into the\nE*TRADE account corresponding to such customer's Submitted Application. For\npurposes of this Agreement, a Submitted Application shall not lose its status as\nsuch if the underlying account is subsequently terminated or if the funds in\nsuch account are subsequently reduced below the minimum initial deposit of\n$500.00.\n\n      j. \"Successful Offer\" means an offer made by a customer on the Co-Marketer\nSite to purchase airline tickets in which (i) the customer elects to participate\nin the E*TRADE Adaptive Marketing Program by clicking on the Link to E*TRADE's\nbrokerage account application page at the URL maintained on the E*TRADE\nDedicated Server for the E*TRADE Adaptive Marketing Program, and completing the\nrequired account application disclosures, and (ii) Co-Marketer accepts such\ncustomer's offer by selling such customer an airline ticket. E*TRADE\nacknowledges and agrees that a Successful Offer may be effected even if the\ncustomer does not deliver a Submitted Application.\n\n      k. \"Successful Offer Fee\" means, for each Successful Offer, two (2) times\nthe actual amount that Co-Marketer pays pursuant to the E*TRADE Adaptive\nMarketing Program to increase and make a customer's offer a Successful Offer. At\nno time shall any single Successful Offer Fee exceed $150. By way of example, if\nCo-Marketer pays $50 to increase and make a customer's offer a Successful Offer,\nthe Successful Offer Fee will be $100 (2 x $50).\n\n\n                                       2\n\n\n2.    Co-Marketing Obligations.\n\n      a. Scope. The Parties shall undertake and perform the obligations for the\nmarketing and promotion of the Co-Marketer Services along with the E*TRADE\nServices on the Co-Marketer Site and\/or E*TRADE Site, to the extent specified in\nExhibits A and B attached hereto. All such promotional activity shall be subject\nto the prior approval of both Parties, in advance and before first use, such\napproval not to be unreasonably withheld. E*TRADE reserves the right to request\nthat Co-Marketer deliver to E*TRADE accurate records regarding promotional\nmaterials and other communications to third-parties regarding E*TRADE (including\nmaterials sent on behalf of E*TRADE), including copies of such materials, the\nnames and addresses (electronic and\/or residential) to which they were sent and\nthe dates of delivery.\n\n      b. Restrictions. Other than by engaging in the activities described in\nExhibit A, Co-Marketer, its affiliates and their employees will not (i) describe\nE*TRADE's brokerage services (other than disseminating or posting promotional or\nadvertising materials approved in each case, in advance and before first use, by\nE*TRADE); (ii) recommend or endorse specific securities; (iii) become involved\nin the financial services offered by E*TRADE, including, without limitation, by:\n(A) opening, approving, maintaining, administering, or closing customer\nbrokerage accounts with E*TRADE; (B) soliciting, processing, or facilitating\nsecurities transactions relating to customer brokerage accounts with E*TRADE;\n(C) extending credit to any customer for the purpose of purchasing securities\nthrough, or carrying securities with, E*TRADE; (D) answering E*TRADE customer\ninquiries (other than directing customers to a toll-free number of E*TRADE to\naddress such inquiries) or engaging in negotiations involving brokerage accounts\nor securities transactions; (E) accepting customer securities orders, selecting\namong broker-dealers or routing orders to markets for E*TRADE execution; (F)\nhandling investment funds or securities of E*TRADE customers, or effecting\nclearance or settlement of customer securities trades; or (G) resolving or\nattempting to resolve any problems, discrepancies, or disputes involving E*TRADE\ncustomer accounts or related transactions (other than directing customers to a\ntoll-free number of E*TRADE to address such inquiries). Co-Marketer acknowledges\nthat engaging in any of the above activities may subject Co-Marketer to\nbroker-dealer registration requirements under the Securities Exchange Act of\n1934 and applicable state law. Each Party acknowledges that nothing in this\nAgreement shall require either Party to take any action that is in violation of\nany Federal, state or other securities laws. E*TRADE acknowledges that\nCo-Marketer will not be required by E*TRADE to take any action that would cause\nit to become a broker\/dealer in connection with the Co-Marketer's activities\ncontemplated by this Agreement. Notwithstanding anything to the contrary herein,\nemployees of Co-Marketer and its affiliates, may, in their individual capacity\nand in accordance with E*TRADE's normal operating standards and customer\nrequirements, become member, customers or account-holders of E*TRADE.\n\n      c. Exclusivity. During the Term (as hereinafter defined), E*TRADE shall be\nthe exclusive provider of brokerage services and investment-related products\n(specifically excluding\n\n\n                                       3\n\n\nbanking and insurance products and services), electronic or otherwise, promoted\nthrough the Co-Marketer's Services and the Co-Marketer Site.\n\n3.    Licensed Marks.\n\n      a. License to E*TRADE Marks. Subject to all the terms and conditions of\nthis Agreement, E*TRADE hereby grants Co-Marketer a nonexclusive,\nnon-transferable, non-sublicensable license to use the E*TRADE Marks solely on\nthe Co-Marketer Site and solely in connection with the marketing and promotion\nof the Co-Marketer Services and the E*TRADE Services. \"E*TRADE Marks\" shall mean\nsolely the E*TRADE trade name, logos and Marks specified in Exhibit D hereto;\nprovided, however, that E*TRADE, in its sole discretion from time to time, may\nchange the appearance and\/or style of the E*TRADE Marks or add or subtract from\nthe list in Exhibit D, provided that, unless required earlier by a court order\nor to avoid potential infringement liability, Co-Marketer shall have fourteen\n(14) days' notice to implement any such changes. Co-Marketer hereby acknowledges\nand agrees that (i) E*TRADE has represented to it that the E*TRADE Marks are\nowned solely and exclusively by E*TRADE, (ii) except as set forth herein,\nCo-Marketer has no rights, title or interest in or to the E*TRADE Marks and\n(iii) all use of the E*TRADE Marks by Co-Marketer shall inure to the benefit of\nE*TRADE. Co-Marketer agrees not to apply for registration of the E*TRADE Marks\n(or any mark confusingly similar thereto) anywhere in the world.\n\n      b. Use and Display of E*Trade Marks. Co-Marketer acknowledges and agrees\nthat the presentation and image of the E*TRADE Marks should be uniform and\nconsistent with respect to all services, activities and products associated with\nthe E*TRADE Marks. Accordingly, Co-Marketer agrees to use the E*TRADE Marks\nsolely in the manner which E*TRADE shall specify from time to time in E*TRADE's\nsole discretion. All usage by Co-Marketer of the E*TRADE Marks shall include the\nregistered trademark symbol and shall be in the following form, as appropriate:\n[E*TRADE Mark](R). All literature and materials printed, distributed or\nelectronically transmitted by Co-Marketer and containing the E*TRADE Marks shall\ninclude the following notice:\n\n                        [E*TRADE Mark] is a registered trademark of\n                         E*TRADE Securities, Inc.\n\n      c. License to Co-Marketer Marks. Subject to all the terms and conditions\nof this Agreement, Co-Marketer hereby grants E*TRADE a nonexclusive,\nnon-transferable, non sublicensable license to use the Co-Marketer Marks solely\non the E*TRADE Site and solely in connection with the marketing and distribution\nof the E*TRADE Services to its customers. \"Co-Marketer Marks\" shall mean solely\nthe Co-Marketer trade names, marks and logos specified in Exhibit E hereto;\nprovided, however, that Co-Marketer, in its sole discretion from time to time,\nmay change the appearance and\/or style of the Co-Marketer Marks or add or\nsubtract from the list in Exhibit E, provided that, unless required earlier by a\ncourt order or to avoid potential infringement liability, E*TRADE shall have\nfourteen (14) days' notice to implement any such\n\n\n                                       4\n\n\nchanges. E*TRADE hereby acknowledges and agrees that, (i) Co-Marketer has\nrepresented to E*TRADE that the Co-Marketer Marks are owned solely and\nexclusively by Co-Marketer, (ii) except as set forth herein, E*TRADE has no\nrights, title or interest in or to the Co-Marketer Marks and (iii) all use of\nthe Co-Marketer Marks by E*TRADE shall inure to the benefit of Co-Marketer.\nE*TRADE agrees not to apply for registration of the Co-Marketer Marks (or any\nmark confusingly similar thereto) anywhere in the world.\n\n      d. Use and Display of Co-Marketer Marks. E*TRADE acknowledges and agrees\nthat the presentation and image of the Co-Marketer Marks should be uniform and\nconsistent with respect to all services, activities and products associated with\nthe Co-Marketer Marks. Accordingly, E*TRADE agrees to use the Co-Marketer Marks\nsolely in the manner which Co-Marketer shall specify from time to time in\nCo-Marketer's sole discretion. All usage by E*TRADE of the Co-Marketer Marks\nshall include the appropriate trademark symbol and shall be in the following\nform, as appropriate: [Co-Marketer Mark](sm). All literature and materials\nprinted, distributed or electronically transmitted by E*TRADE and containing the\nCo-Marketer Marks shall include the following notice:\n\n                  [Co-Marketer Mark] is a Service Mark of\n                  priceline.com Incorporated\n\n4.    Payment. Subject to the terms and conditions of this Agreement, all\n      payments made under this agreement shall be made in accordance with terms\n      specified in Exhibit C attached hereto.\n\n5.    Ownership. Each Party or their respective licensors and third party\n      information and content providers retain all rights, title and interest in\n      and to all of the information, content, data, designs, materials and\n      copyrights, patent rights trademark rights and other proprietary rights\n      thereto provided by it pursuant to this Agreement. Except as expressly\n      provided herein, no other right or license with respect to any copyrights,\n      patent rights, trademark rights or other proprietary rights is granted\n      under this Agreement. All rights not expressly granted hereunder by a\n      Party are expressly reserved to such Party and its licensors and\n      information and content providers.\n\n6.    Records; Audits; Payments.\n\nEach Party shall keep maintain and preserve for at least three (3) years\nfollowing termination or expiration of the term of this Agreement or any\nrenewal(s) thereof, accurate records relating to such Party's payment\nobligations hereunder and the Successful Offer Logs and Submitted Applications\nLogs, as defined in Exhibit C. Such records shall be maintained as confidential,\nbut shall be available for inspection and audit as provided herein. Each Party\nshall have the right to have an independent public accountant, reasonably\nacceptable to the other Party, examine such other Party's relevant books,\nrecords and accounts for the purpose of verifying the accuracy of payments made\nto the other Party as required under this Agreement. Each Party acknowledges\n\n\n                                       5\n\n\nand agrees that such accountant shall not have access to the books, records, and\naccounts relating to other products or services except as such books, records\nand accounts also directly relate to the payments due hereunder. Each audit will\nbe conducted at the audited Party's place of business, or other place agreed to\nby Co-Marketer and E*TRADE, during the audited Party's normal business hours and\nwith at least five (5) business days prior written notice to the audited Party.\nThe auditing Party shall pay the fees and expenses of the auditor for the\nexamination; provided that should any examination disclose a greater than five\npercent (5%) shortfall in the payments due the auditing Party for the period\nbeing audited, the audited Party shall pay the reasonable fees and expenses of\nthe auditor for that examination.\n\n7.    Term. This Agreement shall commence on the Effective Date and shall remain\n      in full force and effect for the initial term of one hundred-eighty (180)\n      days (the \"Term\"), unless terminated earlier pursuant to Section 8 and\/or\n      Exhibit C.\n\n8.    Termination.\n\n      a. The Parties agree that, except for certain termination rights of\nE*TRADE provided in Exhibit C hereto, neither Party may terminate this Agreement\nduring the Term other than for cause pursuant to section 8b. hereof.\n\n      b. This Agreement may be terminated by a Party for cause immediately by\nwritten notice to the other Party upon the occurrence of any of the following\nevents:\n\n            i) If the other ceases to do business, or otherwise terminates its\n      business operations, except as a result of an assignment permitted under\n      Section 17.a below; or\n\n            ii) If the other shall fail to promptly secure or renew any license,\n      registration, permit, authorization or approval for the conduct of its\n      business in the manner contemplated by this Agreement or if any such\n      license, registration, permit, authorization or approval is revoked or\n      suspended; provided that a termination hereunder may only be effected\n      during the period of such revocation or suspension; or\n\n            iii) If the other materially breaches any material provision of this\n      Agreement and fails to cure substantially such breach within ten (10) days\n      of written notice describing the breach; or\n\n            iv) Effective immediately and without notice if the other becomes\n      insolvent or seeks protection under any bankruptcy, receivership, trust\n      deed, creditors arrangement, composition or comparable proceeding, or if\n      any such proceeding is instituted against the other (and not dismissed\n      within sixty (60) days); or\n\n            v) If such party, after consultation with legal counsel, reasonably\n      believes that the activities of the other Party or the content of such\n      other Party's Web Site or the\n\n\n                                       6\n\n\n      statements of opinions express on or through such web site, whether in\n      connection with this Agreement or otherwise, has or is substantially\n      likely to expose such Party to criminal or civil liability.\n\n      c. Survival. The terms and conditions of Sections 5, 6 and 8 through and\nincluding Section 17, any accrued payment obligations and, except as otherwise\nexpressly provided herein, any right of action for breach of this Agreement\nprior to termination shall survive any termination of this Agreement.\nFurthermore, upon termination or expiration of this Agreement the licenses\ngranted in Sections 2 and 3 of the Agreement shall cease.\n\n9.    [Reserved]\n\n10.   Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY\n      MAKES ANY WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ANY\n      INFORMATION, CONTENT OR OTHER MATERIALS PROVIDED OR MADE AVAILABLE BY IT\n      HEREUNDER AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT\n      LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE\n      AND NONINFRINGEMENT.\n\n11.   Indemnification.\n\n      a. Each Party (the \"Indemnitor\") shall defend or settle at its expense any\nclaim against the other Party (the \"Indemnitee\"), its affiliates, directors,\nofficers, employees and agents, to the fullest extent permitted by law, arising\nout of or in connection with (a) an assertion that the information, content or\nother materials or services provided or made available by the Indemnitor or the\nuse thereof as specifically authorized by the Indemnitor, infringe any copyright\nor trademark rights of any third party, or are a misappropriation of any third\nparty's trade secret, or contain any libelous, defamatory, disparaging,\npornographic or obscene materials; (b) any breach by Indemnitor of its\nobligations under this Agreement; and (c) any content of, or statements made, by\nIndemnitor on the Indemnitor's Site.\n\n      b. The Indemnitor shall indemnify and hold harmless the Indemnitee against\nand from losses, damages, costs, and reasonable attorneys' fees, if any,\nincurred in defending and\/or resolving such suit; provided that (a) the\nIndemnitor is promptly notified in writing of such claim or suit, (b) the\nIndemnitor shall have the sole control of the defense and\/or settlement thereof,\n(c) the Indemnitee furnishes to the Indemnitor, on request, information\navailable to the Indemnitee for such defense, and (d) the Indemnitee cooperates\nin any defense and\/or settlement thereof as long as the Indemnitor pays all of\nthe Indemnitee's reasonable out of pocket expenses and attorneys' fees. The\nIndemnitee shall not admit any such claim without prior consent of the\nIndemnitor.\n\n\n                                       7\n\n\n12.   Limited Liability. EXCEPT AS OTHERWISE PROVIDED BELOW, AND NOTWITHSTANDING\n      ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE\n      LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT,\n      NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY\n      INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR COST OF PROCUREMENT\n      OF SUBSTITUTE GOODS OR SERVICES. THE LIMITATIONS IN THIS SECTION 12 SHALL\n      NOT APPLY TO ANY BREACH OF SECTION 13.\n\n13.   Confidential Information.\n\n      a. Each Party (\"Receiving Party\") agrees that during the Term of, the and\nfor a period of three (3) years thereafter, it will keep confidential and not\ndisclose or use except in performance of its obligations under this Agreement,\nconfidential or proprietary information related to the other Party's\n(\"Disclosing Party\") technology or business that the Receiving Party learns in\nconnection with this Agreement and any other information received from the\nother, including without limitation, to the extent previously, currently or\nsubsequently disclosed to the Receiving Party hereunder or otherwise:\ninformation relating to products or technology of the Disclosing Party or the\nproperties, composition, structure, use or processing thereof, or systems\ntherefor, or to the Disclosing Party's business (including, without limitation,\ncomputer programs, code, algorithms, schematics, data, know-how, processes,\nideas, inventions (whether patentable or not), names and expertise of employees\nand consultants, all information relating to customers and customer transactions\nand other technical, business, financial, customer and product development\nplans, forecasts, strategies and information), all of the foregoing,\n\"Confidential Information\"). Except as (i) otherwise required by law, including,\nwithout limitation, as included or to be included in Co-Marketer's registration\nstatement or Form S-1 and related public filings with the Securities and\nExchange Commission or the National Association of Securities Dealers, Inc, or\n(ii) or as may be necessary to enforce such Parties' rights under this\nAgreement, neither Party shall disclose the terms of this Agreement to any third\nparty without the prior written consent of the other Party. Each Party shall use\nreasonable precautions to protect the other's Confidential Information and\nemploy at least those precautions that such Party employs to protect its own\nconfidential or proprietary information. \"Confidential Information\" shall not\ninclude information the Receiving Party can document (a) is in or (through no\nimproper action or inaction by the Receiving Party or any affiliate, agent or\nemployee) enters the public domain (and is readily available without substantial\neffort), or (b) was rightfully in its possession or known by it prior to receipt\nfrom the Disclosing Party, or (c) was rightfully disclosed to it by another\nperson without restriction, or (d) was independently developed by it by persons\nwithout access to such information and without use of any Confidential\nInformation of the Disclosing Party. Each Party, with prior written notice to\nthe Disclosing Party, may disclose such Confidential Information to the minimum\nextent possible that is required to be disclosed to a governmental entity or\nagency in connection with seeking any governmental or regulatory\n\n\n                                       8\n\n\napproval, or pursuant to the lawful requirement or request of a governmental\nentity or agency, provided that reasonable measures are taken to guard against\nfurther disclosure, including without limitation, seeking appropriate\nconfidential treatment or a protective order, or assisting the other Party to do\nso.\n\n      b. The Receiving Party acknowledges and agrees that due to the unique\nnature of the Disclosing Party's Confidential Information, there can be no\nadequate remedy at law for any breach of its obligations hereunder, that any\nsuch breach may allow the Receiving Party or third parties to unfairly compete\nwith the Disclosing Party resulting in irreparable harm to the Disclosing Party,\nand therefore, that upon any such breach or any threat thereof, the Disclosing\nParty shall be entitled to appropriate equitable relief in addition to whatever\nremedies it might have at law and to be indemnified by the Receiving Party from\nany loss or harm, including, without limitation, lost profits and attorney's\nfees, in connection with any breach or enforcement of the Receiving Party's\nobligations hereunder or the unauthorized use or release of any such\nConfidential Information. The Receiving Party will notify the Disclosing Party\nin writing immediately upon the occurrence of any such unauthorized release or\nother breach. Any breach of this Section 7 will constitute a material breach of\nthis Agreement.\n\n14.   Relationship of Parties. The Parties hereto expressly understand and agree\n      that each Party is an independent contractor in the performance of each\n      and every part of this Agreement, is solely responsible for all of its\n      employees and agents and its labor costs and expenses arising in\n      connection therewith. Neither Party nor its agents or employees are the\n      representatives of the other Party for any purpose and neither Party has\n      the power or authority as agent, employee or any other capacity to\n      represent, act for, bind or otherwise create or assume any obligation on\n      behalf of the other Party for any purpose whatsoever.\n\n15.   Notices. Notices under this Agreement shall be sufficient only if\n      personally delivered, delivered by a major commercial rapid delivery\n      courier service or mailed, postage or charges prepaid, by certified or\n      registered mail, return receipt requested to a Party at its addresses set\n      forth on the first page above or as amended by notice pursuant to this\n      Section. If not received sooner, notice by mail shall be deemed received\n      five (5) days after deposit in the U.S. mails.\n\n16.   Dispute Resolution. The Parties will act in good faith and use\n      commercially reasonable efforts to promptly resolve any claim, dispute,\n      controversy or disagreement (each a \"Dispute\") between the Parties or any\n      of their prospective subsidiaries, affiliates, successors or assigns under\n      or related to this Agreement or any document executed pursuant to this\n      Agreement or any of the transactions contemplated hereby.\n\n      a. Except for Disputes relating to issues of proprietary rights, including\nbut not limited to, intellectual property and confidentiality, and except that\neither Party may seek injunctive or other equitable relief from a court, any\nDispute will be governed exclusively and\n\n\n                                       9\n\n\nfinally by arbitration. Such arbitration will be conducted by the American\nArbitration Association (\"AAA\") at a location mutually acceptable to the Parties\nand will be initiated and conducted in accordance with the Commercial\nArbitration Rules of the AAA, including the AAA Supplementary Procedures for\nLarge Complex Commercial Disputes (\"Complex Procedures\"), as such rules are in\neffect on the date of delivery of a demand for arbitration (\"Demand\"), except to\nthe extent that such rules are inconsistent with the provisions set forth\nherein. Notwithstanding the foregoing, the Parties may agree in good faith that\nthe Complex Procedures will not apply in order to promote the efficient\narbitration of Disputes where the nature of the Dispute, including without\nlimitation, the amount in controversy, does not justify the application of such\nprocedures.\n\n      b. If the amount in dispute is less than or equal to $500,000, a single\narbitrator will be selected from the AAA panel of commercial arbitrators of any\nof the AAA Large and Complex Resolution Programs. If the amount in dispute is\ngreater than $500,000, then the arbitration panel will consist of three\narbitrators, provided that if the panel concludes that such amount claimed in\ndispute over $500,000 was not made in good faith, then the claimant shall pay to\nthe respondent the full cost of the respondent's non-neutral arbitrator fees.\nEach Party will name an arbitrator within ten (10) days after the delivery of\nthe Demand. The third arbitrator, to be selected by the first two, should be a\nneutral participant with no prior working relationship with either Party. If the\ntwo arbitrators are unable to select a third arbitrator within ten (10) days, a\nthird neutral arbitrator will be appointed by the AAA from the panel of\ncommercial arbitrators of any of the AAA Large and Complex Resolution Programs.\n\n      c. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law,\nwill govern the arbitrability of all Disputes. The arbitrator(s) shall have the\ndiscretion to order a pre-hearing exchange of information by the Parties,\nincluding, without limitation, production of requested documents, exchanging\nsummaries of testimony of proposed witnesses and limited examination by\ndeposition of Parties.\n\n      d. The arbitrators will have the authority to award compensatory damages\nonly. Any award by the arbitrators will be accompanied by a written opinion\nsetting forth the findings of fact and conclusions of law relied upon in\nreaching the decision. The award rendered by the arbitrators will be final,\nbinding and non-appealable; and judgment upon such award may be entered by any\ncourt of competent jurisdiction.\n\n17.   Miscellaneous.\n\n      a. Prohibition Against Assignment. Neither this Agreement nor any rights,\nlicenses or obligations hereunder, may be assigned by either Party without the\nprior written approval of the non-assigning Party. Any attempted assignment in\nviolation of this Section will be void and without effect. Subject to the\nforegoing, this Agreement will benefit and bind the Parties' successors and\npermitted assigns.\n\n\n                                       10\n\n\n      b. Construction. The Parties acknowledge and agree that this Agreement has\nbeen drafted and prepared through the efforts of both Parties and the rule of\nconstruction that any vague or ambiguous terms are to be construed against the\nParty drafting such terms shall not be applied to either Party to this\nAgreement.\n\n      c. Applicable Law; Attorneys' Fees. This Agreement shall be governed by\nand construed in accordance with the laws of the State of New York without\nreference to conflict of law principles thereof. In any action to enforce this\nAgreement the prevailing Party will be entitled to costs and reasonable\nattorneys' fees.\n\n      d. Entire Agreement. This Agreement constitutes the entire agreement\nbetween the Parties with respect to the subject matter hereof and supersedes all\nprior discussions, documents, agreements and prior course of dealing, and shall\nnot be effective until signed by both Parties.\n\n      e. Amendment and Waiver. Except as otherwise expressly provided herein,\nany provision of this Agreement may be amended or modified and the observance of\nany provision of this Agreement way be waived (either generally or any\nparticular instance and either retroactively or prospectively) only with the\nwritten consent of the Parties. The failure of either Party to enforce its\nrights under this Agreement at any time for any period shall not be construed as\na waiver of such rights.\n\n      f. Severability. In the event that any of the provisions of this Agreement\nshall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, such provisions shall be limited or eliminated to the minimum\nextent necessary so that this Agreement shall otherwise remain in full force and\neffect and enforceable.\n\n      g. Publicity. Any press releases in connection with this Agreement shall\nbe subject to the prior written mutual approval of the Parties.\n\n      h. Counterparts. This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original, but both of which together shall constitute\none and the same instrument.\n\n      i. Headings. Headings and captions are for convenience only and are not to\nbe used in the interpretation of this Agreement.\n\n\n                                       11\n\n\n            IN WITNESS WHEREOF, the Parties have executed this Agreement as of\nthe Effective Date. All signed copies of this Agreement shall be deemed\noriginals.\n\n                                    PRICELINE.COM INCORPORATED\n\n\n                                    By: \/s\/ Robert J. Mylod Jr.\n                                    Name: Robert J. Mylod Jr.                 \n                                    Title: Vice President                     \n\n\n                                    E*TRADE GROUP, INC.\n\n\n                                    By:\n                                    Name:______________________________\n                                    Title:_____________________________\n\n\n                                       12\n\n\n            IN WITNESS WHEREOF, the Parties have executed this Agreement as of\nthe Effective Date. All signed copies of this Agreement shall be deemed\noriginals.\n\n                                    PRICELINE.COM INCORPORATED\n\n\n                                    By:\n                                    Name:______________________________\n                                    Title:_____________________________\n\n                                    E*TRADE GROUP, INC.\n\n\n                                    By: Jerry Gramalia\n                                    Name: \/s\/ Jerry Gramalia                  \n                                    Title: SVP, illegible                     \n\n\n                                       13\n\n\n                                    EXHIBIT A\n\n1. Co-Marketer's Promotional and Advertising Obligations. Co-Marketer agrees to\nundertake the following promotional efforts and obligations hereunder:\n\n      a. E*TRADE IPO Program. Co-Marketer agrees to establish and continue the\nE*TRADE\/IPO account program (the \"E*TRADE IPO Program\") on the Co-Marketer Site,\nincluding a Link to a Web page established by E*TRADE on the E*TRADE Site\nspecifically designed for Co-Marketer's initial public offering, on which Web\npage Co-Marketer's customers may complete an E*TRADE standard brokerage account\napplication. The E*TRADE IPO Program shall continue in effect until the earlier\nof (x) the consummation of the Co-Marketer's initial public offering of its\ncommon stock (the \"IPO Shares\"), or (y) a mutually agreeable time established by\nboth Parties.\n\n      b. E*TRADE Adaptive Marketing Program. Co-Marketer and E*TRADE agree to\nestablish an adaptive marketing upsell program whereby Co-Marketer will\nestablish a Link in the core path of its airline ticket offer form, which Link\nwill enable Co-Marketer's customers to click directly to a Web page established\nby E*TRADE on the E*TRADE Dedicated Server specifically designed to enable\nCo-Marketer's customers to complete an E*TRADE brokerage account application\n(non-IRA) (the \"E*TRADE Adaptive Marketing Program\"). Under the E*TRADE Adaptive\nMarketing Program, each customer of Co-Marketer who submits an offer and clicks\non the Link to E*TRADE's Web page on the E*TRADE Dedicated Server and completes\nthe required account application disclosures will automatically have his\/her\noffer increased by $75.\n\n\n                                       A-1\n\n\n                                    EXHIBIT B\n\n1. E*TRADE's Obligations. E*TRADE agrees to take the following actions to\nfacilitate the implementation of the Agreement:\n\n      a. Offer eligible Co-Marketer customers who are approved for an E*TRADE\nbrokerage account and eligible to purchase IPO Shares based on E*TRADE's\nestablished criteria, first priority over other E*TRADE customers who submit\nindications of interest to purchase IPO Shares, to purchase up to 100 IPO Shares\nper account from the IPO Shares allocated to E*TRADE;\n\n      b. Establish a Web page and Link from the E*TRADE Site to the Co-Marketer\nSite that describes the E*TRADE IPO Program in a manner that is acceptable to\nCo-Marketer and E*TRADE;\n\n      c. Establish a Web page and Link from the E*TRADE site to the Co-Marketer\nSite that describes the E*TRADE Adaptive Marketing Program in a manner that is\nacceptable to Co Marketer and E*TRADE; and\n\n      d. Use its reasonable best efforts to work with Co-Marketer to develop and\nadminister the E*TRADE Adaptive Marketing Program.\n\n\n                                       B-1\n\n\n                                    EXHIBIT C\n\nCompensation\n\n1. Media Services Fees: In consideration of Co-Marketer's performance and\nobligations set forth in the Agreement, E*TRADE will pay to Co-Marketer, the\nfees described in subsections a. and b. below (collectively, the \"Media Services\nFees\"):\n\n      a. Standard Daily Fee. Commencing on the Effective Date, and continuing\nuntil the later of (y) the termination of the Agreement and (z) the 91st day\nfollowing the Effective Date, E*TRADE will pay a guaranteed, non-refundable fee\n(the \"Daily Fee\") as follows:\n\n      i) $8,300 per day until such time as E*TRADE has established 3,000\nSubmitted Applications.\n\n      ii.) Upon the establishment of the 3,000th Submitted Application through\nthe Agreement, the Daily Fee shall be increased to $14,000 per day commencing on\nthe date the 3000th account was first established.\n\n      iii) Upon the establishment of the 7,500th Submitted Application through\nthe Agreement, the Daily Fee shall be increased to $35,000 per day commencing on\nthe date the 7,500th account was first established;\n\n      iv) Upon the establishment of the 11,000th Submitted Application through\nthe Agreement, the Daily Fee shall be increased to $65,000 per day commencing on\nthe date the 11,000th account was first established; and\n\n      v) Upon the establishment of the 15,000th Submitted Application through\nthe Agreement, the Daily Fee shall be increased to $95,000 per day commencing on\nthe date the 15,000th account was first established.\n\n      b. Successful Offer Fee.\n\n      i) Commencing on the date of launch of the E*TRADE Adaptive Marketing\nProgram on the Co-Marketer Site and continuing until the termination thereof,\nCo-Marketer shall record the aggregate number of Successful Offers (as such term\nis defined in Section 1j. of the Agreement) achieved in each calendar month.\nCo-Marketer shall only record one Successful Offer and charge one Successful\nOffer Fee per customer. Subject to the limitations herein set forth, E*TRADE\nshall pay Co-Marketer a Successful Offer Fee (as such term is defined in Section\nlk. of the Agreement) for each Successful Offer recorded in each calendar month,\nprovided, however that until such time as the aggregate of all Successful Offer\nFees for any calendar month exceeds the aggregate of all Daily Fees payable\npursuant to subsection a. above for the same month, such Successful Offer Fees\nshall be offset against the aggregate Daily Fees\n\n\n                                       C-1\n\n\npayable for such month. If in any calendar month, the aggregate of all\nSuccessful Offer Fees exceeds the aggregate of all Daily fees, E*TRADE shall, in\naddition to its payment obligations under subsection a. above, pay Co-Marketer\nonly that portion of the Successful Offer Fees that are in excess of the\naggregate Daily Fees.\n\n      ii) Co-Marketer shall maintain a daily log of Successful Offers (the\n\"Successful Offer Log\") while the E*TRADE Adaptive Marketing Program is in\neffect, which shall specify (i) the date of each Successful Offer, (ii) the\nnumber of Successful Offers for the preceding day (iii) the aggregate number of\nSuccessful Offers for the previously completed week and (iv) the aggregate of\nSuccessful Offer Fees for the previously completed week. Co-Marketer shall\ndeliver to E*TRADE, in a digital format to be agreed upon by the Parties, the\nSuccessful Offer Log for the previously completed week not later than Wednesday\nof each week during the Term of the Agreement. With respect to the Successful\nOffer Log to be delivered in the first week after each calendar month end, such\nlog shall specify the net amount of Successful Offer Fees in excess of the Daily\nFees payable for such completed month , if any.\n\n2. Payment Dates\n\nOn or prior to March 15, 1999, April 15, 1999, May 15, 1999 and June 15, 1999,\nE*TRADE shall deliver to Co-Marketer a cash payment in the amount of the\naggregate Media Services Fees for each day of the previous month.\n\n3. Submitted Applications. E*TRADE shall maintain a daily log of Submitted\nApplications (the \"Submitted Applications Log\"), which log shall specify (i) the\nnumber of Submitted Applications collected for the preceding day, (ii) the\nCo-Marketer Link from which each applicant who delivered a Submitted Application\naccessed E*TRADE's application page (i.e., IPO notice page or airline web page),\nand (iii) the aggregate year-to-date number of Submitted Applications. A\nSubmitted Application Log for the previously completed week shall be transmitted\nto Co-Marketer (in a digital format to be agreed upon by the Parties) not later\nthan Wednesday of each week during the Term of the Agreement.\n\n4. Payment Term\n\nThe laws relating to broker-dealer registration are subject to interpretation\nand may change. Accordingly, if the payments described herein are determined to\nbe prohibited under any law, regulation or rule applicable to a Party's\nperformance of this Agreement, then the Parties shall negotiate and agree upon a\nmutually acceptable fee structure as an alternative to the payment of the\nincremental advertising fees described herein.\n\n5. Special Termination Rights. Notwithstanding the provisions of Section 8 of\nthe Agreement, the Parties agree that E*TRADE may, upon written notice thereof\nto Co-Marketer, (i) at any time after 90 days following the Effective Date,\nterminate this entire Agreement, and (ii) at any time, terminate the E*TRADE\nAdaptive Marketing Program, provided that any such\n\n\n                                       C-2\n\n\ntermination shall become effective at 12:00 Midnight, Eastern Standard Time, on\nthe day of the month in which such termination notice shall have been delivered\nto Co-Marketer. Termination pursuant to this Section 5 of Exhibit C shall not\naffect any obligations of the Parties accruing hereunder for periods prior to\nthe effective date of such termination. Notwithstanding any termination effected\npursuant to this Section 5 of Exhibit C or Section 8 of the Agreement, E*TRADE\nshall be obligated to pay all Daily Fees that shall accrue for the period\ncommencing on the Effective Date through the 90th day following the Effective\nDate, as well as all other Media Services Fees that shall have accrued, but\nshall not have been paid prior to the effective date of such termination.\n\n\n                                       C-3\n\n\n                                    EXHIBIT D\n\n                                  E*TRADE Marks\n\n*E*TRADE\n\n                                   E*TRADE(R)\n\n\n                                       D-1\n\n\n                                    EXHIBIT E\n\n                                Co-Marketer Marks\n\n                                  priceline.com\n\n\n                                       E-1\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8573],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42143","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-pricelinecom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42143","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42143"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42143"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42143"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42143"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}