Exhibit 10.29
JOINT MARKETING AGREEMENT
This Agreement (the "Agreement") is made and entered into on this 28th
day of April, 2000, (the "Effective Date") by and between CyBerCorp, Inc., a
Texas corporation ("CyBerCorp"), having its principal place of business at: 115
Wild Basin Rd. Ste 300, Austin, Texas 78746, and Wall Street Strategies Corp., a
New York corporation ("Wall Street Strategies"), having its principal place of
business at: 130 William Street, Suite 401, New York, NY 10038.
RECITALS
Wall Street Securities owns and operates Wall Street Strategies
subscription services (the "Wall Street Strategies Services") that provide
consumers with continuous real-time market information, data, charts, graphs and
related financial information delivered via the Internet;
CyBerCorp owns and operates a securities trading order entry system
(the "Order Entry System");
Wall Street Strategies desires to provide promotional space for
CyBerCorp's Order Entry System and CyBerCorp desires to market the Wall Street
Strategies Services and both parties desire to use the information generated
from such cross-marketing to evaluate the benefit of a future working
relationship.
Now therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
AGREEMENT
1. Wall Street Strategies Obligations.
1.1 Customized Web Site. Wall Street Strategies shall customize a
version of the Wall Street Strategies Services to include CyBerCorp's logo,
trademarks and service marks and any information on special offer or promotions,
which CyBerCorp may offer in conjunction with the joint marketing arrangement
between the parties.
1.2 Billing and Administration. Wall Street Strategies shall manage
customer subscriptions to the Wall Street Strategies Services and provide the
technical support, contract administration, subscription billing, exchange fee
billing, reporting and collection services connected therewith.
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1.3 Reporting. Within [***], Wall Street Strategies shall provide
CyBerCorp with a report for the month stating the number of impressions (or
"hits") received on the customized Wall Street Strategies Services Web site.
2. CyBerCorp's Obligations.
2.1 Marketing. CyBerCorp shall provide hyperlinks on its Web site to
the Web sites for the customized Wall Street Strategies Services. Subject to the
terms of this Agreement, CyBerCorp shall provide copies of its logos, trademarks
or service marks to Wall Street Strategies in JPEG format, or in such other
electronic format as may be requested by Wall Street Strategies, and the CyBerX
Trading Simulator for Wall Street Strategies' use on the customized Web site
subject to the provisions of Section 3.2.
3. Joint Obligations
3.1 Promotion. Each party agrees to use diligent and good faith efforts
to promote, at its own expense, the customized Wall Street Strategies Services
to its respective customers and prospects including, without limitation, (i)
through web marketing channels in the form of banner ads, special promotional
sections on its Web site, and through e-mail messages, and (ii) through
traditional marketing channels in the form of print and direct mail advertising
and notifications accompanying corporate invoices or statements.
3.2 Trademarks. Subject to the terms of this Agreement, each party
grants the other a non-exclusive, non-transferable limited right and license to
use the logos, trademarks and service marks identified on Exhibit A
(collectively, the "Marks") for the sole purpose of (i) use on the customized
Wall Street Strategies Services or the Order Entry System, and (ii) the
advertising or marketing of the Wall Street Strategies Services or Order Entry
System as contemplated by this Agreement. Each party acknowledges and agrees
that the other party owns and otherwise has the exclusive right to use and to
license its own Marks and that the other party shall have the right to review
and approve or disapprove of its use of the other party's Marks. Neither party
shall adopt or use, without the express written consent of the other party, any
variation of the other's Marks, including translations, or any mark likely to be
similar to or confusing with any of the other party's Marks. Each party agrees
to conduct the advertising and marketing contemplated under this Agreement in a
dignified manner, consistent with and enhancing the general reputation of each
party's Marks.
3.3 Hosting and Maintenance of the Web Sites. CyBerCorp shall be solely
responsible for the hosting of its Order Entry System and Wall Street Strategies
shall be solely responsible for the hosting of the Wall Street Strategies
Services, including the customized Wall Street Strategies Services. Neither
party warrants or guarantees any minimum level of service on its Web site nor
guarantees uninterrupted or continuous access to its Web site.
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3.4 Communications. The parties recognize the value and importance of
clear, accurate and consistent public communications regarding the relationship
contemplated by this Agreement. Accordingly, the parties shall agree on the
timing and content of any public announcement regarding the cooperative
relationship described in this Agreement.
3.5 Ownership and Control of Content. Nothing in this Agreement shall
effect a transfer of ownership of any type or in any form from one party to the
other, and each party shall, in providing information to the other, retain any
rights of copyright, trademark or any intellectual property rights in such
content that it possessed prior to providing such content, subject only to the
rights to use the information as granted in this Agreement. Each party will
retain full control of and responsibility for the creation, support and
customization of its Web site including, without limitation, all creative
control over the "look and feel" of the sites.
3.6 Restrictions. Other than by engaging in the activities described
in this Section 3, the parties agree that Wall Street Strategies shall not (i)
describe CyBerCorp's brokerage services (other than disseminating or posting
promotional or advertising materials approved or provided by CyBerCorp); (ii)
become involved in the financial services offered by CyBerCorp, including,
without limitation, by: (A) opening, approving, maintaining, administering, or
closing customer brokerage accounts with CyBerCorp; (B) soliciting, processing,
or facilitating securities transactions relating to customer brokerage accounts
with CyBerCorp; (C) extending credit to any customer for the purpose of
purchasing securities through, or carrying securities with, CyBerCorp; (D)
answering CyBerCorp customer inquiries or engaging in negotiations involving
brokerage accounts or securities transactions; (E) accepting customer securities
orders, selecting among broker-dealers or routing orders to markets for
CyBerCorp execution; (F) handling funds or securities of CyBerCorp customers, or
effecting clearance or settlement of customer securities trades; or (G)
resolving or attempting to resolve any problems, discrepancies, or disputes
involving CyBerCorp customer accounts or related transactions, and applicable
state law. Co-Marketer represents and warrants that in its performance hereunder
it shall obey all applicable laws, regulations and rules of any government body
or agency or other competent authority.
4. Confidential Information
4.1 Confidential Information. Each party acknowledges that Confidential
Information may be disclosed to the other party during the course of the
relationship established by this Agreement. "Confidential Information" shall
mean any information relating to or disclosed in the course of the relationship
established by this Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing party, including technical
processes, formulas, source codes, product designs, sales, cost and other
unpublished financial information, product and business plans, projections and
marketing data and all data and information transmitted by the owning party to
the Receiving Party. "Confidential Information" shall not include information:
(a) already lawfully known to or independently developed by the Receiving Party;
(b) disclosed in published materials; (c) generally known to the public; (d)
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lawfully owned from any third party; or (e) required to be disclosed by law.
Each party agrees that it shall take reasonable steps, at least substantially
equivalent to the steps it takes to protect its own proprietary information (but
in no event less than due care), during the Term and for a period of three years
following expiration or earlier termination of this Agreement, to prevent the
duplication or disclosure of Confidential Information, other than by or to its
employees or agents and the employees and agents of its affiliates and
authorized subcontractors who must have access to the Confidential Information
to perform such party's obligations hereunder, each of whom shall agree to
comply with this Section 4.1.
5. Warranties and Representations. Each party represents and warrants to
the other that (i) it has all right, power and authority to enter into and
perform its obligations set forth in this Agreement in accordance with its
terms; (ii) the execution and delivery of this Agreement and the performance of
its obligations hereunder will not violate any agreement to which it is a party
or to which it is bound; (iii) it has the ability to provide all computer,
telecommunications, software and other equipment and technology or resources
necessary to perform its obligations as set forth in this Agreement; and (iv)
its Web site shall be reasonably available and accessible by Internet users.
6. Limitation of Liability, Disclaimer and Indemnification.
6.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY (OR ITS
AFFILIATES, EMPLOYEES, REPRESENTATIVES OR SUBCONTRACTORS) BE LIABLE TO THE OTHER
PARTY FOR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT
LOSS OF PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE
BREACH OF ANY PROVISION OF THIS AGREEMENT, PROVIDED, HOWEVER, THAT THE FOREGOING
LIMITATION SHALL NOT APPLY TO (A) BREACH OF SECTION 4, (B) INDEMNITY OBLIGATIONS
UNDER SECTION 6.3 OR (C) DIRECT DAMAGES RESULTING FROM INTENTIONAL OR WILLFUL
BREACH OF THIS AGREEMENT.
6.2 No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WALL STREET
STRATEGIES SITES, THE CYBERCORP WEB SITES, OR THE ORDER ENTRY SYSTEM, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EACH
PARTY EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OF THE INFORMATION
PROVIDED ON ITS WEB SITES AND, EXCEPT AS OTHERWISE PROVIDED, NEITHER PARTY
ACCEPTS LIABILITY ARISING FROM ANY INACCURATE INFORMATION CONTAINED THEREIN.
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6.3 Indemnity. Each party (the "Indemnifying Party") shall indemnify,
settle, or defend and hold harmless the other party, its affiliates and the
officers, directors, agents, affiliates, subcontractors and employees of each of
these (the "Indemnified Party") from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities") to the extent such liabilities resulted from either (a) the
Indemnifying Party's material breach of any obligation, representation, warranty
or covenant set forth in this Agreement except to the extent the liabilities are
the result of the Indemnified Party's negligence, or (b) that the information,
content or other materials or services provided or made available by the
Indemnifying Party or the use thereof as specifically authorized by the
Indemnifying Party, infringe any copyright or trademark rights of any third
party, or are a misappropriation of any third party's trade secret, or contain
any libelous, defamatory, disparaging, pornographic or obscene materials. The
Indemnified Party shall (i) promptly notify the Indemnifying Party in writing of
any indemnifiable claim and give the Indemnifying Party the opportunity to
defend or negotiate a settlement of any such claim at the Indemnifying Party's
expense; and (ii) cooperate fully with the Indemnifying party, at the
Indemnifying Party's expense, in defending or settling any such claim.
7. Term and Termination
7.1 Term. The Term of this Agreement shall begin upon the Effective
Date and shall continue for a period of 12 months unless terminated in
accordance with the provisions of Section 7.2 or 7.3. Thereafter, the Term may
be extended by mutual agreement of the parties.
7.2 Termination. Either party may terminate this Agreement without
cause by providing 60 days written notice to the other party. Wall Street
Strategies shall not be obligated to grant new subscriptions, or to extend
existing subscriptions, under the terms of this Agreement after the date on
which a written notice of termination is received by either party.
7.3 Termination on Default. This Agreement may be terminated by either
party upon thirty (30) days prior written notice (immediately in the case of a
breach of Section 4)if the other party has breached a material provision of this
Agreement and has not cured such breach within such notice period. Upon the
occurrence of any event of default, the non-defaulting party may exercise any
right or remedy which may be available to it under applicable law subject to the
limitations on liability set forth in this Agreement. In addition, and
notwithstanding the foregoing, this Agreement shall terminate on the first of
the following to occur:
a. The date either party makes an assignment for the benefit of
its creditors; or
b. The date sixty days after any petition is filed by or against
any party under any section or chapter of the Federal
Bankruptcy Act or any similar law or statute of the United
States or any state thereof for the protection of creditors if
such petition is not dismissed within (60) days after filing.
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8. General
8.1 Assignment. Neither this Agreement nor any right or obligation
arising hereunder may be assigned (voluntarily, by operation of law or
otherwise), in whole or in part, by either party without the prior written
consent of the other party, such consent not to be unreasonably withheld, except
that either party may assign this Agreement to any acquiror of all or of
substantially all of such party's equity securities, assets or business relating
to the subject matter of this Agreement or to a related or affiliated company
without consent of the other party.
8.2 Applicable Law; Venue. This Agreement has been entered into in the
State of Texas, and all matters or issues relating in any way thereto shall be
governed by the laws of the State of Texas applicable to contracts entered into
and performed entirely within the State without regard to Texas's conflicts or
choice of law rules in connection with any action to enforce the provisions of
this Agreement, to recover damages or other relief for breach or default of this
Agreement, or otherwise arising under or by reason of this Agreement.
8.3 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective successors and
permitted assigns.
8.4 Complete Agreement. This Agreement and its attachments set forth
the entire agreement between the parties with respect to the subject matter
hereof, and supersede all prior or contemporaneous understandings,
communications or agreements, whether written or oral, regarding such subject
matter.
8.5 Amendment. This Agreement may not be amended or modified in any
manner, except by a written instrument signed by the parties hereto.
8.6 Notice. All notices, consents and approvals given under this
Agreement shall be in writing and shall be delivered in person, by first class
or express mail or facsimile addressed as follows:
If to CyBerCorp: If to Wall Street Strategies:
CyBerCorp, Inc. Wall Street Strategies Corp.
115 Wild Basin Rd. Ste 300 130 William Street Ste 401
Austin, Texas 78746 New York, NY 10038
ATTN: Butch Jones, EVP ATTN: Shawn D. Baldwin, COO
Either Party may change its address or addressee for the purposes of this
Section 8.6 by written notice. Notice given in accordance with this Section 8.6
shall be deemed given when received.
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8.7 Waiver. No waiver by either party of any breach or fault by any
other party shall be deemed a waiver of any other breach or default unless the
waiver is in writing and signed by the waiving party.
8.8 Severability. If any provision of this Agreement is held by final
judgment of a court of competent jurisdiction to be invalid, illegal or
unenforceable, such invalid, illegal or unenforceable provision shall be severed
from the remainder of this Agreement, and the remainder of this Agreement shall
be enforced. In addition, the invalid, illegal or unenforceable provision shall
be deemed to be automatically modified, and, as so modified, to be included in
this Agreement, such modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable. Notwithstanding the
foregoing, however, if the severed or modified provision concerns all or a
portion of the essential consideration to be delivered under this Agreement by
one party to the other, the remaining provisions of this Agreement shall also be
modified to the extent necessary to equitably adjust the parties' respective
rights and obligations hereunder.
8.9 Interpretation of Agreement. When a reference is made in this
Agreement to a section, such reference shall be to the section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Whenever the words "include," "includes," or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
8.10 Survival. The provisions of Sections 3.5, 4, 6 and 8 shall survive
any expiration or termination of this Agreement for any reason.
8.11 Relation of Parties. It is expressly declared that this Agreement
and the relationships between the parties established hereby does not constitute
a partnership, joint venture, agency, or contract of employment between them and
neither party shall have the right to bind the other.
8.12 Force Majeure. Neither party shall be deemed to be in default of
any provision of this Agreement or for failure in performance resulting from
acts or events beyond the reasonable control of such party and arising without
its fault or negligence. Such acts shall include acts of God, civil or military
authority, interruption of electric or telecommunication services, civil
disturbances, war, strikes, fires, floods or other catastrophes. If for any of
the reasons set forth above either party shall be unable to perform any
obligation when due, such party shall immediately notify the other party of such
inability and of the period over which such inability is expected to continue.
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8.13 Further Cooperation. Each party hereto agrees to cooperate with
the other, at such other party's request and at such other party's expense, to
execute any and all documents or instruments, or to obtain any consents, in
order to assign, transfer, perfect, record, maintain, enforce or otherwise carry
out the intent of the terms of this Agreement.
8.14 Good Faith Performance. Each party agrees to perform its
obligations hereunder in good faith.
Agreed and entered into this 28th day of April 2000.
CyBerCorp, Inc. Wall Street Strategies Corp.
By: Butch Jones By: Shawn D. Baldwin
Name: /S/ Butch Jones, EVP Name: /S/ Shawn D. Baldwin
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Date: 5/4/2000 Date: 5/4/2000
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EXHIBIT A
IDENTIFICATION OF THE COMPANIES' MARKS
1. CyBerCorp's Marks
The CyBerTrader trademark is the name, phrase, or logo design which
identifies the CyBerTrader stock market trading services to the end
user and distinguishes it from other similar products. The CyBerTrader
Trademarks and the CyBerTrader Logo are owned by CyBerCorp, Inc. and
licensed to CyBerTrader.
CyBerTrader Trademarks (herein so called)
CyBerTraderO
CyBerXO
CyBerX IIO
CyBerTO
CyBerXchangeO
CyBerTrader Logo (herein so called)
2. Wall Street Strategies' Marks
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