AMENDED AND RESTATED MARKETING AGREEMENTMarketing Agreement |
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PLEASE NOTE THAT CERTAIN MATERIAL HAS BEEN
OMITTED AND NOTED AS “REDACTED” PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THAT MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
AMENDED
AND RESTATED MARKETING AGREEMENT
This Amended and
Restated Marketing Agreement (this “Agreement”), dated as of
April 7, 2006 (the “Effective Date”), is between
EDENTIFY, INC., a Delaware corporation located at 74 W. Broad Street,
Suite 350, Bethlehem, Pennsylvania 18018 (“Edentify”),
and TRILEGIANT CORPORATION, a Delaware corporation located at 100 Connecticut
Avenue, Norwalk, Connecticut 06850 (“Trilegiant”).
W I
T N E S S E T H
WHEREAS, Edentify has developed a process known as
IDBenchmark™ used to assess and score the risk of fraud associated with
specific manipulated identities and incorporated in the following Edentify
products: IDAssess™, IDScreen™ and IDAlert™, each of which
are automated systems that detect, analyze and score inconsistencies in a
consumer’s personal information profiles (together with
IDBenchmark™, each, a “Product” and, collectively, the
“Products”); and
WHEREAS, Edentify desires Trilegiant to, and Trilegiant
desires to, market the Products to members (collectively, the “Members”)
of its membership programs (including, but not limited to, PrivacyGuard, PC
Safety, ID Secure, Identity Sweep, Hotline and any program(s) established by
Trilegiant on or subsequent to the Effective Date, collectively, the “Programs”),
subject to the terms and conditions of this Agreement;
WHEREAS, Edentify and Trilegiant previously entered into that
certain Marketing Agreement, dated as of April 7, 2006 (the “Original
Marketing Agreement”); and
WHEREAS, Edentify and Trilegiant desire to amend and restate
the Original Marketing Agreement in its entirety as set forth below.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants and conditions contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Edentify and Trilegiant hereby agree as follows:
1. Non-Solicitation;
Non-Competition; Acquisition Notification.
(a) At any
time during the Term (as defined herein), Edentify shall not, either by itself
or in conjunction with any third party, use direct mail, outbound
telemarketing, inbound telemarketing, internet marketing or marketing via email
to knowingly solicit or knowingly permit the solicitation of a Member for any
Product until the earliest of the following: (i) such Member’s
membership in the related Program expires, (ii) such Member’s
membership in the related Program is cancelled by Trilegiant or pursuant to
Trilegiant’s written instruction, or (iii) for one hundred and
eighty (180) days after such Member’s membership in the related Program
is cancelled by such Member.
(b) At any
time during the Term, Edentify shall not, either by itself or in conjunction
with any third party, without Trilegiant’s prior written consent, market,
sell or otherwise agree to provide any Product, or license any Edentify
Intellectual Property (as defined herein), to or through (i) any of
Trilegiant’s clients listed on Schedule 1(b)-1 attached hereto
(each, a “Trilegiant Restricted Client” and, collectively,
the “Trilegiant Restricted Clients”) in respect of consumer
marketing, or (ii) any of Trilegiant’s competitors listed on
Schedule 1(b)-2 attached hereto (collectively, the “Trilegiant
Competitors”). Trilegiant shall have the right, during the Term, to
add three (3) additional entities (“Trilegiant Additional
Entities”) to each list of entities set forth on each of
Schedule 1(b)-1 and Schedule 1(b)-2 by providing thirty
(30) days’ advance written notice to Edentify in respect thereof.
Notwithstanding anything herein to the contrary, subject to the following
sentence, Trilegiant shall not be permitted to add any entity as a Trilegiant
Additional Entity if Edentify has an existing business relationship with such
entity as of the date that Trilegiant seeks to add such entity. Edentify shall
notify Trilegiant, in writing, within five (5) business days of receiving
notice from Trilegiant of the proposed Trilegiant Additional Entities in the
event that such a business relationship exists, and such written notice shall
attach documentation, reasonably satisfactory to Trilegiant, supporting the
existence of such business relationship.
(c) At any
time during the Term, Trilegiant shall not, either by itself or in conjunction
with any third party, without Edentify’s prior written consent, market,
sell or otherwise agree to provide any Product (other than any MyPublicInfo,
Inc. (“MPI”) product containing a Product or Products or
data in respect of a Product or Products), or license any Edentify Intellectual
Property (as defined herein), to or through (i) any of Edentify’s
clients listed on Schedule 1(c)-1 attached hereto (each, an “Edentify
Restricted Client” and, collectively, the “Edentify
Restricted Clients”) in respect of consumer marketing, or
(ii) any of Edentify’s competitors listed on Schedule 1(c)-2
attached hereto (collectively, the “Edentify Competitors”).
Edentify shall have the right, during the Term, to add three
(3) additional entities (“Edentify Additional Entities”)
to each list of entities set forth on each of Schedule 1(c)-1 or Schedule
1(c)-2 by providing thirty (30) days advance written notice to Trilegiant
in respect thereof. Notwithstanding anything herein to the contrary, subject to
the following sentence, Edentify shall not be permitted to add any entity as an
Edentify Additional Entity if Trilegiant has an existing business relationship
with such entity as of the date that Edentify seeks to add such entity.
Trilegiant shall notify Edentify, in writing, within five (5) business
days of receiving notice from Edentify of the proposed Edentify Additional
Entities in the event that such a business relationship exists, and such
written notice shall attach documentation, reasonably satisfactory to Edentify,
supporting the existence of such business relationship.
(d) Standstill
in Event of Competitor Acquisition Offer. In the event that, during the
Term, Edentify receives and entertains an offer from any Trilegiant Competitor
to engage in a transaction that would result in a change of more than fifty
percent (50%) of the voting control of Edentify or to acquire substantially all
of the assets that are necessary for Edentify to commercially exploit the
Products in its ordinary course of business (an “Acquisition Offer”),
and subsequently files a Current Report on Form 8-K related to the Acquisition
Offer (the “Acquisition 8-K”) with the United States
Securities and Exchange Commission, Edentify shall promptly inform Trilegiant
of such filing and provide Trilegiant, within one (1) business day after
such filing, a copy of the Acquisition 8-K. Edentify shall not, thereafter,
execute a binding definitive agreement to consummate the transaction with such
party that is the subject of the Acquisition Offer, unless and until the
following conditions have been satisfied or waived by Trilegiant:
(i) Trilegiant shall have five (5) calendar days from the date
Edentify delivers a copy of the Acquisition 8-K to Trilegiant to inform
Edentify in writing whether it has a good faith interest in acquiring Edentify
(such notification, an “Acquisition Interest Notification”),
(ii) Trilegiant shall be given an opportunity and an additional fifteen
(15) calendar days thereafter to conduct its own due diligence on Edentify
(and Edentify shall reasonably cooperate in such due diligence, including
making relevant files and records available to Trilegiant) and, in
Trilegiant’s sole discretion, but not later than the twentieth (20th) day
after Trilegiant commences its due diligence on Edentify as stated above,
Trilegiant may extend to Edentify a written offer of acquisition on terms no
less favorable than those set forth in the offer from the Trilegiant
Competitor, and (iii) Edentify shall have ten (10) calendar days from
the date of receipt of Trilegiant’s offer, if any, to accept or reject
such offer, in writing.
Notwithstanding
anything contained in this paragraph 1(d), Edentify shall not be obligated to
take any actions that would cause Edentify to be in violation of Nevada
Corporate Code, the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the regulations thereunder or other applicable federal
or state securities laws or regulations.
2. Marketing;
Branding.
(a) Trilegiant
shall, in its sole discretion, market the Products to Members.
Trilegiant’s agreement to market the Products is non-exclusive, and,
therefore, (i) subject to Sections 1(a) and 1(b) hereof, Edentify may
engage third parties to market the Products and (ii) Trilegiant may offer
other products and/or services, whether or not the same or substantially
similar to a Product, at any time during or after the Term. The application of
a link on Program websites to websites owned or managed by MyPublicInfo, Inc.
(“MPI”), and the use of a Product as a benefit in respect of
a Program or as a stand-alone product for a newly-established Program shall be
determined by Trilegiant in its sole discretion. Trilegiant shall consult with,
and obtain the written consent of, Edentify in the event that Trilegiant
desires to apply a link on Program websites to www.edentify.us (the
“Edentify Website”). If requested, Edentify shall consult
with Trilegiant in the development of a plan for marketing the Products to
Members, whether such assistance is directly with Trilegiant or any of its
clients or partners.
(b) Trilegiant
shall have the right, in its sole discretion, to establish and create, during
the Term, multiple unique branding or co-branding of the Products (such unique
brand and co-branded names, collectively, the “Trilegiant Brand Names”).
If requested, Edentify shall consult with Trilegiant in connection therewith.
Trilegiant shall have the right, in its sole discretion, to market the Products
to Members under the Trilegiant Brand Names. To the extent Trilegiant is
working directly with Edentify in respect of the Products, the parties hereto
shall mutually agree upon the development, use and implementation of the
Trilegiant Brand Names.
3. Provision
of Services; Service Level Standards; Source Code.
(a) Edentify
shall provide to (A) all Members that purchase the Products as
contemplated pursuant to this Agreement, (B) all Members that are entitled
to use of the Products as Members of a Program offering the Products as a
benefit of such Program and (C) all Members of a newly-established Program
offering the Products as a stand-alone benefit the following:
(i) the
Products as described on the Edentify Website;
(ii) Scoring
services substantially meeting the functional and technical specifications of
Edentify solutions as set forth on the attached Schedule 3(b); and
(iii) all
intellectual property licenses set forth and described herein (including,
without limitation, Section 11).
(c) Edentify
shall notify Trilegiant, in writing, ninety (90) days prior to the
effective date of any material modification of the functional specifications of
any Product. Except as may be required by law, Edentify shall not materially
diminish the benefits of any Product without the prior written approval of
Trilegiant. To the extent any obligation of Edentify under this Section 3(b) is
qualified by the contrary requirements of applicable law or regulation,
Edentify shall use its best efforts to minimize the amount and/or effect of any
such restrictions (to the extent permitted by applicable law or regulation) and
shall reasonably cooperate with Trilegiant in connection therewith.
(d) Each
Product shall comply with the standards and requirements set forth in this
Agreement. Edentify shall provide the Products through qualified personnel and
shall appoint a designated project manager as a primary point of contact for
Trilegiant. Edentify shall provide the Products with due diligence and in a
professional and workmanlike manner. Except as otherwise specifically stated in
this Agreement, each Product shall be provided to Members with the same
warranty as is provided to other Edentify customers of such Product. Edentify
shall use its best efforts continuously throughout the Term to ensure that each
Product is substantially and in the aggregate no less valuable to Members than
such Product is to other Edentify consumers on the Effective Date.
(e) In
performing its obligations hereunder, Edentify shall comply with the service
level standards set forth below and elsewhere herein (collectively, the “Service
Level Standards”). Edentify shall ensure sufficient capacity and
system redundancy to ensure ninety-nine point five percent (99.5%) uptime of
the Edentify Website as measured on a monthly basis; provided, however,
that the uptime measurement shall not include downtime attributable to
scheduled maintenance of which Edentify has provided Trilegiant with at least
seven (7) days advance written notice (“Uptime Requirement”).
Scheduled maintenance outages will be limited to two 2-hour outages per month
and will be scheduled between 2:00 a.m. — 6:00 a.m. EST. Edentify shall
use its best efforts to ensure that downtime for scheduled maintenance will
minimize disruption of service. In the event that the Edentify Website is not
functional, Edentify will promptly notify MPI. The material failure by Edentify
to meet the Uptime Requirement in two consecutive calendar months shall be
deemed a material breach of this Agreement. In addition, Edentify shall
(1) use best efforts to ensure compliance with a mutually agreed-upon file
format, and to the extent Edentify does not so comply, Edentify shall have twenty-four
(24) hours to cure such non-compliance in all respects, and (2) use
best efforts to achieve a goal of a maximum of two (2) hours for disaster
recovery (i.e., resumption of basic business functionality).
(f) No later
than fifteen (15) business days following the Effective Date and, to the
extent any material changes have been made thereto, on each anniversary of the
Effective Date during the Term, Edentify shall deliver to an independent
third-party escrow agent, to be mutually agreed upon by the parties hereto (the
“Escrow Agent”), a copy of the source code form of each
Product’s software (including any comments or documentation available
with respect thereto), a listing thereof, batch processes and database schemas
(collectively, the “Delivered Material”). The Delivered
Material shall be provided in a sealed package which shall only be delivered to
Trilegiant pursuant to the terms of the Escrow Agreement among Edentify, as
depositor, Trilegiant, and beneficiary, and the Escrow Agent (the “Escrow
Agreement”). If the Release Condition (as defined in Section 3(g)
below) occurs, Edentify shall use its best efforts to instruct Trilegiant in
the operation of the Products and the Delivered Material. Such efforts shall
include, but not be limited to, (i) identifying to Trilegiant any third
party service providers who provide services with respect to operation and
functioning of the Products, (ii) upon the request of Trilegiant and to
the extent not prohibited by Edentify’s contractual confidentiality
obligations, providing a copy of any agreements with such third party service
providers and any related documentation to Trilegiant, and (iii) upon the
request of Trilegiant, making best efforts to organize meetings between a
Trilegiant representative and a Edentify representative and/or third party
service provider representative with respect to the operation and functioning
of the Products. Furthermore, in the event that the Release Condition occurs,
Edentify shall use its best efforts in assisting Trilegiant in obtaining
similar support for the Products and the Delivered Material from such third
party provider as Edentify is receiving prior to such Release Condition.
(g) Edentify
hereby grants to Trilegiant a perpetual, limited, non-transferable,
non-exclusive, royalty-free license to use the Delivered Material for the
purpose of providing the Products to Members if Edentify ceases doing business
and its business is not continued by another entity (the “Release
Condition”). Pursuant to the Escrow Agreement, upon the occurrence of
a Release Condition, Trilegiant shall send the Escrow Agent a release request
(the “Release Request”). Upon receipt of the Release
Request, the Escrow Agent shall, within five (5) business days, deliver a
written notice of such request to Edentify (the “Notice of Release
Request”). Pursuant to the Escrow Agreement, Edentify shall have ten
(10) business days to deliver contrary instructions to the Escrow Agent
(“Contrary Instructions”). Upon receipt of Contrary
Instructions, if any, the Escrow Agent will be required to send a copy of the
Contrary Instructions to Trilegiant and store the Delivered Material without
release pending either (i) joint instructions from Edentify and Trilegiant that
accept release of the Delivered Material or (ii) receipt of an order from
a court of competent jurisdiction.
(h) All
rights and licenses granted under or pursuant to this Agreement by Edentify to
Trilegiant are, and shall otherwise be deemed to be, for purposes of Section
365(n) of the United States Bankruptcy Code (the “Code”),
licenses to rights to “intellectual property” as defined under the
Code. The parties hereto agree that Trilegiant, as a limited licensee of such
rights under this Agreement, shall retain and may fully exercise all of its
rights and elections under the Code. The parties hereto further agree that, in
the event of the commencement of bankruptcy proceedings by or against Edentify
under the Code, Trilegiant shall be entitled to retain all of its rights under
this Agreement.
4. Customer
Service Obligations. Members
entitled to use the Products as a Member of a Trilegiant Edentify Program (as
defined below) shall be directed to Trilegiant’s customer service
department regarding all questions or problems relating to the Products.
Edentify agrees to provide training as of the Effective Date and on an ongoing
basis throughout the Term to Trilegiant’s customer service department
staff on Edentify and the Products needed by such staff to provide adequate
customer service to Members. The dates, location and amount of training shall
be jointly determined. Edentify reserves the right, however, to charge for such
training in the event that such costs become greater than incidental to
Edentify. In such event, Edentify will provide Trilegiant with forty-five
(45) days advance written notice thereof. As used herein, a “Trilegiant
Edentify Program” shall mean (i) any Program containing a
Product as one of many, or as the sole, benefit offered to Members of such
Program, (ii) any Program, the website of which provides a link to the
Edentify Website or otherwise contains other marketing materials relating to
Edentify.
5. Confidentiality.
(a) Member
Information. All personally identifiable information, including name,
address, telephone number, social security number and unique account
information, of Members created through their use of a Product in connection
herewith (collectively, “Member Information”), shall be
owned by, and be the Confidential Information (as defined below) of,
Trilegiant. All personally identifiable information, including name, address,
telephone number, social security number and unique account information, of any
customers of Edentify other than Members shall be the Confidential Information
of Edentify. The Receiving Party (as defined below) will treat all such
Confidential Information in accordance with the provisions of Section 5(b)
below. All Member Information shall at all times be subject to the terms of the
privacy policy posted on the Edentify Website which shall be in a form mutually
agreed to by the parties.
(b) Confidential
Information. Each party agrees that the marketing materials, information
and techniques provided by the other party (the “Disclosing Party”)
with respect to marketing of the Products hereunder, and all other proprietary
non-public information provided by the Disclosing Party to the other party (the
“Receiving Party”) hereunder, whether oral or written, and
whether or not labeled as confidential by such party (“Confidential
Information”), is confidential and proprietary to the Disclosing
Party and is received in confidence by the Receiving Party, and the Receiving
Party will not, directly or indirectly, use, disclose, reproduce, dispose of,
sell or otherwise transfer such information in any manner except as required to
perform such party’s obligations hereunder or as otherwise expressly
provided herein. Notwithstanding the foregoing, Confidential Information does
not include information which: (i) is in the public domain at the time of
the Disclosing Party’s communication to the Receiving Party;
(ii) entered the public domain through no fault of the Receiving Party
subsequent to the time of the Disclosing Party’s communication thereof to
the Receiving Party; (iii) was in the Receiving Party’s possession,
free of any obligation of confidence, at the time of the Disclosing
Party’s communication thereof to the Receiving Party; (iv) was
rightfully communicated to the Receiving Party free of any obligation of
confidence subsequent to the time of the Disclosing Party’s communication
thereof to the Receiving Party; or (v) was developed by employees or
agents of the Receiving Party, independently of and without reference to the
Confidential Information.
(c) Confidentiality Obligation. Each Disclosing Party’s Confidential Information shall at all times remain the sole and






