{"id":42144,"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-webmd-inc-and-e-trade-group-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"co-marketing-agreement-webmd-inc-and-e-trade-group-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/co-marketing-agreement-webmd-inc-and-e-trade-group-inc.html","title":{"rendered":"Co-Marketing Agreement &#8211; WebMD Inc. and E*Trade Group Inc."},"content":{"rendered":"<pre>                                                                                \n                             CO-MARKETING AGREEMENT\n                             ----------------------\n\n          This Co-Marketing Agreement (\"Agreement\") is made and entered into\nOctober 20, 1998 (\"Effective Date\"), by and between WebMD, Inc., a Georgia\ncorporation located at 400 The Lenox Building, 3399 Peachtree Road, NE, Atlanta\nGA 30326 (\"Co-Marketer\") and E*TRADE Group, Inc., a Delaware corporation located\nat Four Embarcadero Place, 2400 Geng Road, Palo Alto, CA 94303 (\"E*TRADE\").\n\n          1.  Definitions.\n              ----------- \n\n              a.  \"Co-Branded Site\" means the co-branded consumer web site known\nas \"Destination E*TRADE\" (or any other name) as described in Exhibit A attached\nhereto.\n\n              b.  \"E*TRADE Services\" means E*TRADE's electronic brokerage\nservices and related products available at the E*TRADE Site.\n\n              c.  \"E*TRADE Site\" means E*TRADE's web site located at\n[http:\/\/www.etrade.com] (or any replacement or successor address).\n\n              d.  \"Co-Marketer Services\" means Co-Marketer's internet-based\ncommunications and information services and related products targeting\nhealthcare professionals and other participants in the healthcare industry and\nconsumers of healthcare related information available through the Co-Marketer\nSites.\n\n              e.  \"Co-Marketer Sites\" means Co-Marketer's professional web sites\nlocated at [http:\/\/www.webmd.com] and [http:\/\/www.webmd.etrade.com] (or any\nreplacement or successor addresses) and all third party co-branded or mirrored\naddresses or sites thereof.\n\n              f.  \"Partners\" means content partners, technology partners and\ndistribution partners of Co-Marketer.\n\n          2.  Co-Marketing Obligations.\n              ------------------------ \n\n              a.  Scope. The parties shall undertake and perform the obligations\n                  -----\nfor the marketing and promotion of the Co-Marketer Services along with the\nE*TRADE Services on the Co-Branded Site, the Co-Marketer Sites and\/or E*TRADE\nSite, to the extent specified in Exhibit A, attached hereto. All such\npromotional activity shall be subject to the prior approval of both parties,\nsuch approval not to be unreasonably withheld.\n\n              b.  Restrictions. Other than by engaging in the activities\n                  ------------\ndescribed in Section 2.a above and Exhibit A, Co-Marketer, its Partners,\naffiliates, and their employees will not (i) describe E*TRADE's brokerage\nservices (other than disseminating or posting promotional or advertising\nmaterials approved in each case, in advance and before first use, by \n\n \nE*TRADE pursuant to Section 3 below); (ii) recommend or endorse specific\nsecurities; (iii) become involved in any manner in the business of providing the\nfinancial services offered by E*TRADE, including, without limitation, by: (A)\nopening, approving, maintaining, administering, or closing customer brokerage\naccounts with E*TRADE; (B) soliciting, processing, or facilitating securities\ntransactions relating to customer brokerage accounts with E*TRADE; (C) extending\ncredit to any customer for the purpose of purchasing securities through, or\ncarrying securities with, E*TRADE; (D) answering E*TRADE customer inquiries\ninvolving E*TRADE customer accounts or related transactions or engaging in\nnegotiations involving brokerage accounts or securities transactions; (E)\naccepting customer securities orders, selecting among broker-dealers or routing\norders to markets for execution; (F) handling funds or securities of E*TRADE\ncustomers, or effecting clearance or settlement of customer securities trades;\nor (G) resolving or attempting to resolve any problems, discrepancies, or\ndisputes involving E*TRADE customer accounts or related transactions. Co-\nMarketer acknowledges that engaging in any of the above activities may subject\nCo-Marketer to broker-dealer registration requirements under the Securities\nExchange Act of 1934, as amended, and applicable state securities law.\n\n          3.  Licensed Marks.\n              -------------- \n\n              a.  License to E*TRADE Marks. Subject to all the terms and\n                  ------------------------\nconditions of this 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 Sites and the Co-Branded Site and solely in connection with the\nmarketing and promotion of the Co-Marketer Services and the E*TRADE Services.\n\"E*TRADE Marks\" shall mean solely the E*TRADE name and logo specified in Exhibit\nB hereto; provided, however, that E*TRADE, in its sole discretion from time to\ntime, may change the appearance and\/or style of the E*TRADE Marks or add or\nsubtract from the list in Exhibit B, provided that, unless required earlier by a\ncourt order or to avoid potential infringement liability, Co-Marketer shall have\nfourteen (14) days' notice to implement any such changes. Co-Marketer hereby\nacknowledges and agrees that (i) the E*TRADE Marks are owned solely and\nexclusively by E*TRADE, (ii) except as set forth herein, Co-Marketer has no\nrights, title or interest in or to the E*TRADE Marks and (iii) all use of the\nE*TRADE Marks by Co-Marketer shall inure to the benefit of E*TRADE. Co-Marketer\nagrees not to apply for registration of the E*TRADE Marks (or any mark\nconfusingly similar thereto) anywhere in the world. Co-Marketer agrees that it\nshall not engage, participate or otherwise become involved in any activity or\ncourse of action that diminishes and\/or tarnishes the image and\/or reputation of\nany E*TRADE Mark.\n\n              b.  Use and Display of E*TRADE Marks. Co-Marketer acknowledges and\n                  --------------------------------\nagrees that the presentation and image of the E*TRADE Marks should be uniform\nand consistent with respect to all services, activities and products associated\nwith the 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 \n\n                                       2\n\n \nprinted, distributed or electronically transmitted by Co-Marketer and containing\nthe E*TRADE Marks shall include the following notice:\n\n                  [E*TRADE Mark] is a registered trademark of\n                  E*TRADE Group, Inc.\n\n              c.  License to Co-Marketer Marks. Subject to all the terms and\n                  ----------------------------\nconditions of 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 in connection with the marketing and distribution of the\nE*TRADE Services to its customers. \"Co-Marketer Marks\" shall mean solely the Co-\nMarketer trade names, marks and logos specified in Exhibit C hereto; provided,\nhowever, that Co-Marketer, in its sole discretion from time to time, may change\nthe appearance and\/or style of the Co-Marketer Marks or add or subtract from the\nlist in Exhibit C, provided that, unless required earlier by a court order or to\navoid potential infringement liability, E*TRADE shall have fourteen (14) days'\nnotice to implement any such changes. E*TRADE hereby acknowledges and agrees\nthat, (i) the Co-Marketer Marks are owned solely and exclusively by Co-Marketer,\n(ii) except as set forth herein, E*TRADE has no rights, title or interest in or\nto the Co-Marketer Marks and (iii) all use of the Co-Marketer Marks by E*TRADE\nshall inure to the benefit of Co-Marketer. E*TRADE agrees not to apply for\nregistration of the Co-Marketer Marks (or any mark confusingly similar thereto)\nanywhere in the world. E*TRADE agrees that it shall not engage, participate or\notherwise become involved in any activity or course of action that diminishes\nand\/or tarnishes the image and\/or reputation of any Co-Marketer Mark.\n\n              d.  Use and Display of Co-Marketer Marks. E*TRADE acknowledges and\n                  ------------------------------------\nagrees that the presentation and image of the Co-Marketer Marks should be\nuniform and consistent with respect to all services, activities and products\nassociated with the Co-Marketer Marks. Accordingly, E*TRADE agrees to use the \nCo-Marketer Marks solely in the manner which Co-Marketer shall specify from time\nto time in Co-Marketer's sole discretion. All usage by E*TRADE of the Co-\nMarketer Marks shall include the appropriate trademark symbol and shall be in\nthe following form, as appropriate: [Co-Marketer Mark](R) or [Co-Marketer\nMark](TM). All literature and materials printed, distributed or electronically\ntransmitted by E*TRADE and containing the Co-Marketer Marks shall include the\nfollowing notice:\n\n                  [Co-Marketer Mark] is a [registered] trademark of\n                  Co-Marketer Corporation\n\n          4.  Payment; Reports; Audit Rights.\n              ------------------------------ \n\n              a.   Payment and Reports. Subject to the terms and conditions of\nthis Agreement, all payments made under this agreement shall be made in\naccordance with terms specified in Exhibit D attached hereto.\n\n                                       3\n\n \n              b.   Audit Rights. All records relating to payment obligations\n                   ------------\nhereunder, and inspection and audits thereof, shall be kept and made available\nin accordance with terms specified in Exhibit D.\n\n          5.  Ownership. Each party or their respective licensors and third\n              ---------\nparty information and content providers retain all rights, title and interest in\nand to all of the information, content, data, designs, materials and all\ncopyrights, patent rights trademark rights and other proprietary rights thereto\nprovided by it pursuant to this Agreement. Except as expressly provided herein,\nno other right or license with respect to any copyrights, patent rights,\ntrademark rights or other proprietary rights is granted under this Agreement.\nAll rights not expressly granted hereunder by a party are expressly reserved to\nsuch party and its licensors and information and content providers.\n\n          6.  Term and Termination.\n              -------------------- \n\n              a.  This Agreement shall commence on the Effective Date and shall\nremain in full force and effect (unless terminated earlier as provided below)\nfor an initial term of one (1) year which shall be renewed automatically for\nadditional one (1) year periods unless either party provides written notice\nninety (90) days before the end of the then current term (collectively, the\n\"Term\"). Either party may terminate this Agreement at any time without cause by\nproviding ninety (90) days' written notice to the other party.\n\n              b.  This Agreement may be terminated by a party for cause\nimmediately by written notice upon the occurrence of any of the following\nevents:\n\n                  i)    If the other ceases to do business, or otherwise\nterminates its business operations, except as a result of an assignment\npermitted under Section 13.a below; or\n\n                  ii)   If the other shall fail to promptly secure or renew any\nlicense, registration, permit, authorization or approval or exemption therefrom\nfor the conduct of its business in the manner contemplated by this Agreement or\nif any such license, registration, permit, authorization or approval is revoked\nor suspended and not reinstated within sixty (60) days; or\n\n                  iii)  If the other materially breaches any material provision\nof this Agreement and fails to cure substantially such breach within thirty (30)\ndays of written notice describing the breach; or\n\n                  iv)   Effective immediately and without notice if the other\nbecomes insolvent or seeks protection under any bankruptcy, receivership, trust\ndeed, creditors arrangement, composition or comparable proceeding, or if any\nsuch proceeding is instituted against the other (and not dismissed within ninety\n(90) days).\n\n              c.  Survival. Sections 4.b and 5 through and including 12, any\n                  --------  \naccrued payment obligations and, except as otherwise expressly provided herein,\nany right of action for breach of this Agreement prior to termination shall\nsurvive any termination of this Agreement.\n\n                                       4\n\n \nFurthermore, upon termination or expiration of this Agreement, the licenses and\nobligations in Sections 2 and 3 shall cease.\n\n          d.  Obligations After Termination or Expiration. Upon the expiration\n              -------------------------------------------\nor termination of this Agreement for any reason:\n\n              i)    Except as otherwise specified in clause (ii) below, each\nparty will promptly cease using and destroy or return to the other party all\npromotional and advertising materials that bear the Marks of the other party and\nall Confidential Information of such other party; and\n\n              ii)   Co-Marketer and E*TRADE will continue to deliver the Co-\nMarketer and E*TRADE Services, respectively, to their customers until the\nexpirations or terminations of their respective subscription agreements with Co-\nMarketer and E*TRADE.\n\n     7.   Warranty Disclaimer.  NEITHER PARTY MAKES ANY WARRANTIES TO ANY PERSON\n          -------------------                                                   \nOR ENTITY WITH RESPECT TO ANY INFORMATION, CONTENT OR OTHER MATERIALS PROVIDED\nOR MADE AVAILABLE BY IT HEREUNDER AND DISCLAIMS ALL EXPRESS OR IMPLIED\nWARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OR MERCHANTABILITY AND\nFITNESS FOR A PARTICULAR PURPOSE.\n\n     8.   Indemnification.  Each party (the \"Indemnitor\") shall defend or settle\n          ---------------\nat its expense a claim or suit against the other party (the \"Indemnitee\"), its\nsublicensees, distributors, and end users arising out of or in connection with\nan assertion that the information, content or other materials or services\nprovided or made available by the Indemnitor or the use thereof as specifically\nauthorized by the Indemnitor, infringe any copyright or trademark rights of any\nthird party, or are a misappropriation of any third party's trade secret, or\ncontain any libelous, defamatory, disparaging, pornographic or obscene\nmaterials.  The Indemnitor shall indemnify and hold harmless the Indemnitee\nagainst and from 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     Co-Marketer agrees to indemnify E*TRADE for any third party claim,\n(including without limitation any Self-Regulatory Organization, state, or\nfederal regulatory or securities claims) arising out of the Co-Marketer Services\nor out of a breach of any provision of this Agreement by Co-Marketer, its\nPartners, affiliates and their employees, including but not limited to any\ndistribution of promotional or advertising materials not approved in advance by\nE*TRADE under Section 2.b. of this Agreement.\n\n                                       5\n\n \n          E*TRADE agrees to indemnify Co-Marketer for any third party claim,\n(including without limitation any Self-Regulatory Organization, state, or\nfederal regulatory or securities claims) arising out of the use or distribution\nby Co-Marketer, its Partners, affiliates and employees of any promotional or\nadvertising materials approved by E*TRADE only to the extent that these\nmaterials relate directly to the E*TRADE Services.\n\n          9.   Limited Liability.  EXCEPT AS OTHERWISE PROVIDED BELOW, AND\n               -----------------                                          \nNOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY\nSHALL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER\nCONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR\nANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR COST OF PROCUREMENT\nOF SUBSTITUTE GOODS OR SERVICES.  THE LIMITATIONS IN THIS SECTION 9 SHALL NOT\nAPPLY TO ANY BREACH OF SECTION 10.\n\n          10.  Confidential Information.\n               ------------------------ \n\n               a.  Each party (\"Receiving Party\") agrees to keep confidential\nand not disclose or use except in performance of its obligations under this\nAgreement, confidential 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\"). Neither party shall disclose the terms of this\nAgreement to any third party without the prior written consent of the other\nparty. Each party shall use reasonable precautions to protect the other's\nConfidential Information and employ at least those precautions that such party\nemploys to protect its own confidential or proprietary information.\n\"Confidential Information\" shall not include information the Receiving Party can\ndocument (a) is in or (through no improper action or inaction by the Receiving\nParty or any affiliate, agent or employee) enters the public domain (and is\nreadily available without substantial effort), or (b) was rightfully in the\nReceiving Party's possession or known by it prior to receipt from the Disclosing\nParty, or (c) was rightfully disclosed to the Receiving Party by another person\nwithout restriction, or (d) was independently developed by the Receiving Party\nby persons without access to such information and without use of any\nConfidential Information of the Disclosing Party. Each party, with prior written\nnotice to the Disclosing Party, may disclose such Confidential Information to\nthe minimum extent possible that is required to be disclosed to a governmental\nentity or agency in connection with seeking any governmental or regulatory\napproval, or pursuant to the lawful requirement or request of a governmental\nentity or agency, provided that reasonable measures \n\n                                       6\n\n \nare taken to guard against further disclosure, including without limitation,\nseeking appropriate confidential treatment or a protective order, or assisting\nthe other party to do so.\n\n               b.   The Receiving Party acknowledges and agrees that due to the\nunique nature of the Disclosing Party's Confidential Information, there can be\nno adequate 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 10 will constitute a material breach of\nthis Agreement.\n\n          11.  Relationship of Parties. The parties hereto expressly understand\n               -----------------------\nand agree that each party is an independent contractor in the performance of\neach and every part of this Agreement, is solely responsible for all of its\nemployees and agents and its labor costs and expenses arising in connection\ntherewith. Neither party nor its agents or employees are the representatives of\nthe other party for any purpose and neither party has the power or authority as\nagent, employee or any other capacity to represent, act for, bind or otherwise\ncreate or assume any obligation on behalf of the other party for any purpose\nwhatsoever.\n\n          12.  Notices. Notices under this Agreement shall be sufficient only if\n               -------\npersonally delivered, delivered by a major commercial rapid delivery courier\nservice or mailed, postage or charges prepaid, by certified or registered mail,\nreturn receipt requested to a party at its addresses set forth on the first page\nabove or as amended by notice pursuant to this Section. If not received sooner,\nnotice by mail shall be deemed received five (5) days after deposit in the U.S.\nmails.\n\n          13.  Related Services.\n               ---------------- \n \n               a.   ***\n\n               b.   ***\n\n*** Omitted pursuant to a request for confidential treatment and filed \nseparately with the Commission.\n\n\n                                       7\n\n \n               c.  Co-Marketer Employee E*TRADE Accounts. Co-Marketer will\n                   -------------------------------------\npromote E*TRADE as the exclusive on-line financial services provider to its\nemployees. E*TRADE will design a special promotion for Co-Marketer employees to\nencourage them to open E*TRADE accounts.\n\n          14.  Miscellaneous.\n               ------------- \n\n               a.  Prohibition Against Assignment. Neither this Agreement nor\n                   ------------------------------\nany rights, licenses or obligations hereunder, may be assigned by either party\nwithout the prior written approval of the non-assigning party. Notwithstanding\nthe foregoing, either party may assign this Agreement to any acquiror of all or\nof substantially all of such party's equity securities, assets or business\nrelating to the subject matter of this Agreement. 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\nassigns.\n\n               b.  Applicable Law; Attorneys' Fees. This Agreement shall be\n                   -------------------------------\ngoverned by and construed in accordance with the laws of the State of California\nwithout reference to conflict of law principles thereof. In any action to\nenforce this Agreement the prevailing party will be entitled to costs and\nattorneys' fees.\n\n               c.  Entire Agreement. This Agreement constitutes the entire\n                   ----------------\nagreement between the parties with respect to the subject matter hereof and\nsupersedes all prior discussions, documents, agreements and prior course of\ndealing, and shall not be effective until signed by both parties.\n\n               d.  Amendment and Waiver. Except as otherwise expressly provided\n                   --------------------\nherein, any provision of this Agreement may be amended or modified and the\nobservance of any provision of this Agreement may be waived (either generally or\nany particular 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               e.  Severability. In the event that any of the provisions of this\n                   ------------\nAgreement shall be held by a court or other tribunal of competent jurisdiction\nto be unenforceable, such provisions shall be limited or eliminated to the\nminimum extent necessary so that this Agreement shall otherwise remain in full\nforce and effect and enforceable.\n\n                                       8\n\n \n               f.  Publicity. Any press releases in connection with this\n                   ---------\nAgreement shall be subject to the prior written mutual approval of the parties.\n\n               g.  Counterparts. This Agreement may be executed in counterparts,\n                   ------------ \neach of which shall be deemed an original, but both of which together shall\nconstitute one and the same instrument.\n\n               h.  Third Party Beneficiaries. E*TRADE's and Co-Marketer's third\n                   -------------------------\nparty licensors and information providers are intended beneficiaries of this\nAgreement. All such third parties shall be bound by the terms of this Agreement\nincluding without limitation Paragraph 2(b) hereto to the maximum extent\npossible.\n\n               i.  Headings. Headings and captions are for convenience only and\n                   --------\nare not to be used in the interpretation of this Agreement.\n\n          IN WITNESS WHEREOF, the parties have executed this Agreement as of the\nEffective Date.  All signed copies of this Agreement shall be deemed originals.\n\n                                    CO-MARKETER:  WebMD, Inc.\n\n                                    By:  \/s\/ K. Robert Draughon\n\n                                    Name:  K. Robert Draughon\n                                           --------------------------------\n\n                                    Title:  Chief Financial Officer\n                                            -------------------------------\n\n\n                                    E*TRADE GROUP, INC.\n\n                                    By:  \/s\/ Stephen C. Richards\n\n                                    Name:  Stephen C. Richards\n                                           --------------------------------\n\n                                    Title:  SVP, Corporate Development and\n                                            ------------------------------\n                                            New Ventures   \n                                            ------------------------------\n\n                                       9\n\n \n                                   EXHIBIT A\n\n\nCo-Marketer's Promotional and Advertising Obligations\n-----------------------------------------------------\n\n          Pursuant to Section 2.a of the Agreement, Co-Marketer agrees to\nadvertise and promote the E*TRADE Services on the Co-Marketer Sites as specified\nin this Exhibit.  Co-Marketer shall use materials and content (including,\nwithout limitation, active hyperlinking URLs) provided by and\/or approved in\nadvance and before first use, by E*TRADE for advertisement and promotion of the\nE*TRADE Services on the Co-Marketer Sites.  E*TRADE shall be the exclusive\nprovider of brokerage services and investment related products (specifically\nexcluding banking and insurance products and services), electronic or otherwise,\npromoted on the Co-Marketer Sites.\n\n          1)  Co-Marketer - E*TRADE Offer:  E*TRADE will purchase subscriptions\n              ---------------------------                                      \nto the Co-Marketer Services from Co-Marketer in Subscription Blocks (as provided\nin Exhibit D, hereto) which subscriptions Co-Marketer will promote and advertise\nin accordance with all provisions of this Agreement on behalf of E*TRADE free of\ncharge to any person approved by E*TRADE for a new account pursuant to E*TRADE's\nstandard terms.\n\nEach such subscription to the Co-Marketer service shall include:\n\n          Unlimited local dialup Internet access (ISP account) which the\n          Subscriber may decline at the Subscriber's sole discretion\n          Customized Physician web-site, including links to patient education\n          information\n          Payor referrals, eligibility, and verification via electronic data\n          interchange (EDI)\n          Certified E-mail account (***\/mo.)\n          Universal in-box (telephonic and web-based e-mail, voice-mail, and\n          faxing)\n          Continued Medical Education credits (CME)\n          Access to a comprehensive source of dynamic medical\/healthcare content\n          Tools to manage the user's practice and improve the user's lifestyle\n\nOTHER CO-MARKETER WEB SITES.  Upon completion of this Agreement, and for forty-\nfive (45) days thereafter, Co-Marketer shall not engage in any conversations,\nnegotiations, or discussions of any kind with any third party securities broker\nor dealer, other than E*TRADE, for purposes of promoting or otherwise including\nsuch third party broker on Co-Marketer's consumer site (i.e. \"Health and\nWellness Center\") or any other web site owned or controlled by Co-Marketer.  In\nthe event that E*TRADE and Co-Marketer fail to reach an agreement regarding such\nsite during this forty-five (45) day period, E*TRADE shall have a right of first\nrefusal for one (1) years for inclusion as securities broker-dealer service\nprovider on such site.\n\nE*TRADE shall further have a right of first refusal for inclusion as securities\nbroker-dealer service provider on any site created, sponsored, or developed by\nCo-Marketer, wherever located, intended for use by individuals and\/or\norganizations located outside of the United States.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       10\n\n \nPROMOTION AND ADVERTISING.  Co-Marketer shall use the payment described in\nParagraph 1 of Exhibit D hereto to fund a national media campaign, consisting of\nprint, radio, on-line and\/or television advertising to promote the E*TRADE\nOffer.  Co-Marketer shall further use commercially reasonable efforts to promote\nthe E*TRADE Offer.  Any such print, radio, on-line and\/or televisions\nadvertising must be approved, in advance and before first use, by E*TRADE.\n\n\nCO-MARKETER SERVICE LEVEL AGREEMENT:  In performance of its obligations under\nthis Agreement Co-Marketer shall meet the requirements for service level\nperformance as set forth in Exhibit E attached hereto.\n\nCO-BRANDED WEB PAGE:\n\n          Co-Marketer's promotional efforts and obligations regarding the Co-\nBranded Site hereunder consist of the following:\n\n          1.   Co-Marketer agrees to provide *** to E*TRADE all of the\n          medical\/healthcare content for the \"Destination E*TRADE\" Site (\"Co-\n          Branded Site\"). The Co-Branded Site shall be a co-branded area\n          consisting of a co-branded first page, with the second through last\n          pages containing Co-Marketer content but always including a \"Back to\n          E*TRADE\" navigation button. *** All content on the second through last\n          page of the Co-Branded Site page and all advertising and sponsorship\n          and revenues thereof shall be owned exclusively by Co-Marketer.\n\n          2.   Co-Marketer agrees to advertise and promote the E*TRADE Services\n          in the \"Financial center\" area of the Co-Marketer Sites as specified\n          in this Exhibit. Co-Marketer shall sponsor and promote E*TRADE as an\n          exclusive securities broker-dealer featured on the Co-Marketer Sites.\n          Co-Marketer shall use materials and content provided by and\/or\n          approved, in advance and before first use, by E*TRADE for\n          advertisement and promotion of the Co-Branded Site, such advertising\n          to include (i) on-line banner ads on the Co-Marketer Sites with direct\n          links to the E*TRADE Site, (ii) prominent display of E*TRADE's name\n          and logos in the portal page and other pages and (iii) other\n          activities as specified in this Exhibit A. Co-Marketer shall not sell\n          advertising to, or otherwise promote, any other securities broker or\n          dealer on the Co-Branded Site.\n\n          3.   The Co-Branded Site shall be located on a Co-Marketer server with\n          direct http \"hot\" links from the \"Financial Center\" area of the Co-\n          Marketer Sites. The parties shall mutually agree upon links, as\n          appropriate, from the Co-Branded Site to additional information or\n          applications located on the Co-Marketer Sites.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       11\n\n \n          4.   Co-Marketer shall not sell any advertising to any third party on\n          the Co-Branded Site on terms more favorable to such third party than\n          those offered to or being paid by E*TRADE without first offering such\n          terms to E*TRADE. In all advertisements and other references in the\n          \"Financial Center\" or similar area of the Co-Marketer Sites, E*TRADE\n          will be featured with no less prominence than that provided to any\n          other third party.\n\n          5.   Co-Marketer agrees to use only such materials and content\n          (including, without limitation, active hyperlinking URLs) provided by\n          and\/or approved, in advance and before first use, by E*TRADE for\n          advertisements and promotion of the E*TRADE Services on the Co-\n          Marketer Sites. E*TRADE shall be the exclusive provider of broker-\n          dealer services and investment related products (specifically\n          excluding banking and insurance products and services), electronic or\n          otherwise, promoted on the Co-Marketer Sites.\n\n          6.   Co-Marketer and the Co-Branded Site shall meet the requirements\n          for service level performance as set forth in Exhibit E attached\n          hereto.\n\n          7.   E*TRADE may, in its sole discretion, grant to its international\n          affiliates the right to hyperlink to the Co-Branded Site.\n\nYEAR 2000 COMPLIANCE.  Co-Marketer represents and warrants that the Co-Marketer\nSites, the Co-Branded Site, and Co-Marketer Services (including, without\nlimitation, with respect to the specific promotions below) are Year 2000\nCompliant.  For purposes of this Agreement, \"Year 2000 Compliant\" shall mean\nthat the Co-Marketer Sites and Co-Marketer Services will not be materially\naffected by any inability to (i) completely and accurately address, present,\nproduce, store and calculate data involving dates beginning with January 1,\n2000, and will not produce abnormally ending or incorrect results involving such\ndates as used in any forward or regression date based function; or (ii) function\nin a such a way that all \"date\" related functionalities and data fields include\nthe indication of century and millennium, and will perform calculations which\ninvolve a four-digit year field.  Notwithstanding the foregoing, this Year 2000\nwarranty shall not apply to the extent that any services or software are used or\ninterfaced with other software, data or operating systems, which are not Year\n2000 compliant.\n\nE*TRADE'S OBLIGATIONS\n---------------------\n\nPursuant to Section 2.a of the Agreement, E*TRADE agrees to advertise and\npromote the E*TRADE and Co-Marketer Services as specified in this Exhibit.\n\nPROMOTION AND ADVERTISING.  E*TRADE shall promote Co-Marketer membership to\nE*TRADE's subscriber base, via the following promotion:  any E*TRADE customer\nthat signs up for one (1) year of Co-Marketer membership at the best commercial\nrate available at the time of enrollment (specifically excluding special and\npromotional offers not available generally to all Co-Marketer subscribers) shall\nreceive *** from E*TRADE during that year.  \n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       12\n\n \nE*TRADE further agrees to advertise the E*TRADE\/Co-Marketer relationship by\nincluding Co-Marketer in a portion of E*TRADE's future planned media buys and\nthrough on-line banner advertisement, using materials and content provided by\nand\/or approved in advance by Co-Marketer.\n\nE*TRADE will design and prepare *** (***) Fulfillment Kits for use solely in\nconnection with this Agreement as soon as is commercially reasonable after the\nEffective Date.  The parties shall use good faith efforts to reach agreement\nregarding the provision of additional Fulfillment Kits.\n\nYEAR 2000 COMPLIANCE.  E*TRADE represents and warrants that the E*TRADE Site and\nE*TRADE Services (including, without limitation, with respect to the specific\npromotions above) are Year 2000 Compliant.  For purposes of this Agreement,\n\"Year 2000 Compliant\" shall mean that the E*TRADE Site and E*TRADE Services will\nnot be materially affected by any inability to (i) completely and accurately\naddress, present, produce, store and calculate data involving dates beginning\nwith January 1, 2000, and will not produce abnormally ending or incorrect\nresults involving such dates as used in any forward or regression date based\nfunction; or (ii) function in a such a way that all \"date\" related\nfunctionalities and date fields include the indication of century and\nmillennium, and will perform calculations which involve a four-digit year field.\nNotwithstanding the foregoing, this Year 2000 warranty shall not apply to the\nextent that any services or software are used or interfaced with other software,\ndata or operating systems, which are not Year 2000 compliant.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       13\n\n \n                                   EXHIBIT B\n                                   ---------\n\nE*TRADE Marks \n-------------\n\nE*TRADE(R)\n\n[E*TRADE logo]\n\n                                       14\n\n \n                                   EXHIBIT C\n                                   ---------\n\nCo-Marketer Marks\n-----------------\n\n\nWebMD(TM)\n\nWebMD OnCall(TM)\n\n[WebMD logo]\n\n                                       15\n\n \n                                   EXHIBIT D\n                                   ---------\n\n                                 Payment Terms\n                                 -------------\n\nBy E*TRADE.\n\n          1.   Initial Guaranteed Purchase. Subject to the terms and conditions\n               --------------------------- \nof this Agreement, on the Effective Date of this Agreement E*TRADE shall\npurchase *** (***) subscriptions to the Co-Marketer service from Co-Marketer.\nE*TRADE will pay Co-Marketer *** (***) for these subscriptions within thirty\n(30) days of the Effective Date.\n\n          2.   Subscription Blocks. Subject to the terms and conditions of this\n               -------------------\nAgreement, Co-Marketer will offer to E*TRADE, for purchase at E*TRADE's sole\ndiscretion, additional blocks of *** (***) subscriptions to the Co-Marketer\nservice (\"Subscription Blocks\") at the rate of *** (***) per Subscription Block.\nE*TRADE may purchase additional Subscription Blocks from Co-Marketer singly or\nin any combination at any time at E*TRADE's sole discretion by providing written\nnotice, including but not limited to notice by postal mail, or facsimile, to Co-\nMarketer.\n\n          3.   Payment Schedule. Payment for each successive purchase of\n               ---------------- \nadditional Subscription Blocks by E*TRADE shall be made within thirty (30) days\nof E*TRADE's written notice to Co-Marketer of its intent to purchase any such\nadditional Subscription Blocks.\n\n          4.   Renegotiation for ISP Usage. In the event that more than ***\n               ---------------------------\n(***) of all subscribers to the Co-Marketer service from the E*TRADE Offer\ndecline the internet access services as provided in Exhibit A hereto, the\nparties agree to renegotiate in good faith the price of Subscription Blocks to\nbe paid by E*TRADE.\n\nBY CO-MARKETER\n\nFor every E*TRADE account holder who opens a Co-Marketer subscription through\nthe efforts of E*TRADE, other than an account holder who opened a new account\nwith E*TRADE pursuant to this Agreement, Co-Marketer shall pay *** (***) to\nE*TRADE within thirty (30) days of the receipt of the first payment from such\naccount holder by Co-Marketer.\n\nCo-Marketer will reimburse E*TRADE's cost of *** (***) for the Fulfillment Kits\nprepared by E*TRADE pursuant to Exhibit A hereto.  E*TRADE may, in its sole\ndiscretion, withhold this sum from the Initial Guaranteed Purchase described\nherein as satisfaction of Co-Marketer's obligation hereunder.  The parties shall\nuse good faith efforts to reach agreement regarding the provision of additional\nFulfillment Kits.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       16\n\n \nRECORDS AND AUDIT TERMS\n-----------------------\n\n          Each party shall keep, maintain and preserve for at least three (3)\nyears following termination or expiration of the term of this Agreement or any\nrenewal(s) thereof, accurate records relating to such party's payment\nobligations hereunder.  Such records shall be maintained as confidential, but\nshall be available for inspection and audit as provided herein.  Each party\nshall have the right at least once per calendar year to have an independent\npublic accountant, reasonably acceptable to the other party, examine such other\nparty's relevant books, records and accounts for the purpose of verifying the\naccuracy of payments made to the other party as required under this Agreement.\nEach party acknowledges and agrees that such accountant shall not have access to\nthe books, records, and accounts relating to other products or services except\nas such books, records and accounts also directly relate to the payments due\nhereunder.  Each audit will be conducted at the audited party's place of\nbusiness, or other place agreed to by Co-Marketer and E*TRADE, during the\naudited party's normal business hours and with at least five (5) business days\nprior written notice to the audited party.  The auditing party shall pay the\nfees and expenses of the auditor for the examination; provided that should any\nexamination disclose a shortfall in the excess of the greater of twenty-five\nthousand dollars ($25,000) or five percent (5%) of the payments due the auditing\nparty for the period being audited, the audited party shall pay the reasonable\nfees and expenses of the auditor for that examination.  At least every two weeks\nduring the term of this Agreement, each party shall provide the other party with\nsuch reports as reasonably requested in order to facilitate each party's\nobligations under this agreement.\n\n                                       17\n\n \n                                   EXHIBIT E\n                                   ---------\n\n1.  PERFORMANCE\n\na)  Average less than *** response time for *** of requests.  Measures server\n    response time only, not network transmission time.\n\nb)  Average *** up time. This would be exclusive of regularly scheduled\n    maintenance. Scheduled maintenance is defined as maintenance for which 48\n    hours advance notice has been given for the required down time.\n\nc)  Post an approved message in the event of a system outage.\n\n2.  MONITORING\/REPORTING\n\na)  Provide details on the method used to monitor performance times.\n\nb)  Provide weekly and monthly reporting which details server up time with the\n    following details per period:\n    .  average response time\n    .  actual daily response time detail\n    .  average server up time\n    .  actual daily server up time\n\nThis information will be emailed to the appropriate contact within the E*TRADE\nInformation Systems Division on Monday of each week for the previous week's\nreports and the first working day of each month for the previous month's\nreports.\n\n3.  ESCALATION PROCEDURES\n\na)  Notify E*TRADE via the following email addresses in case of a service\n    outage:\n    .  operators@etrade.com\n    .  helpdesk@etrade.com\n\nb)  Notify E*TRADE within *** of Co-Marketer's awareness of a service outage.\n    Status information to include:\n    .  reason for the outage.\n    .  ETA for service restored.\n\nc)  If E*TRADE experiences a service outage and has not been notified by email\n    by Co-Marketer, E*TRADE will contact the Senior System Administrator at Co-\n    Marketer by pager at (800) 329-4358 and will be given the information listed\n    in 3.b).\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       18\n\n \nd)  Continue to notify E*TRADE with updated status for the duration of the\n    outage.\n\ne)  Provide a post incident summary.  This summary should include:\n    .  the cause of the problem.\n    .  method used to correct the problem.\n    .  measures Co-marketer will take to prevent further occurrences.\n\n4.  BUSINESS RESUMPTION\n\na)  Co-Marketer must prove the ability to switch processing from the primary\n    server to a hot backup server within ***. Testing of this procedure will be\n    conducted as requested by E*TRADE on a designated weekend by both Co-\n    Marketer and E*TRADE personnel.\n\nb)  Perform an analysis that documents all of the single points of failure in\n    the Co-Marketer - E*TRADE system. Include network components such as\n    routers, hardware and software components. \n\nc)  Eliminate all of the single points of failure within the Co-marketer domain\n    within *** months from the date of this document.\n\n5.  REVENUE IMPACT RECOUPMENT\n\na)  In the event that Co-Marketer fails to meet the performance objectives\n    defined in Section 1.a), a penalty of *** will be due E*TRADE.\n\nb)  In the event that Co-Marketer fails to meet the performance objectives\n    defined in Section 1.b), Co-Marketer will credit E*TRADE a prorated amount\n    of the monthly service fee as compensation for the service outage. The\n    calculation for this credit will be as follows: The monthly fee as specified\n    in Exhibit D of this Agreement divided by 720 hours (30 days per month times\n    24 hours per day) times the total time of the outage.\n\nc)  In the event that Co-Marketer fails to meet the performance objectives\n    defined in Section 1.c), a penalty of *** will be due E*TRADE. \n\nd)  These penalties will be credited to the month's billing in which the\n    performance failure occurred.\n\ne)  Failure by Co-Marketer to meet these performance objectives for *** \n    consecutive months or *** out of *** months shall constitute a breach of\n    this Agreement and E*TRADE will have the right to terminate immediately\n    after providing written notice to Co-Marketer of such intent.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       19\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42144","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webmd-corp","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\/42144","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=42144"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42144"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42144"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42144"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}