EXHIBIT 10.70
MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is between Nelnet, Inc., a
Nebraska corporation located at 121 S. 13th Street, Suite 201, Lincoln, NE
("Nelnet"), and INFINET Integrated Solutions, Inc., an Illinois corporation
("INFINET").
It is effective on May 1, 2004 ("Effective Date").
BACKGROUND
Nelnet markets and sells Student Loan Services to colleges and
universities
INFINET markets and sells a suite of electronic-payment products and
services to customers in the education market.
Nelnet and INFINET desire to establish joint marketing and sales efforts
under which Nelnet will represent and market INFINET's products, and services in
the education market.
The parties therefore agree to the following terms and conditions.
1. DEFINITIONS
"Education Market" shall mean the secondary-education and
higher-education market.
"End User" shall mean a person who uses an INFINET Product to make an
electronic payment to an Institutional Customer.
"INFINET Products" shall mean INFINET's QUIKPAY(R) suite of
electronic-payment products and services for post-secondary education.
"INFINET Site" means INFINET's web site located at
http://www.infinet-inc.com (or any replacement or successor address).
"Link" means a visible graphic or textual indication located within a
web site page which, when selected by a user's browser, directs the user's
internet browser connection onward to a specified page on the same or any other
web site via a uniform resource locator (URL) (whether perceptible or not) and
which establishes a direct connection between the browser and the new page.
"Institutional Customer" shall mean a customer that is a post-secondary
education or higher-education institution.
"Marks" of a party shall mean the trademarks, service marks, logos, or
trade names used in association with that party's goods, services, or business.
"Nelnet Product Specialist" means any Nelnet employee (minimum of two)
who has been trained in-depth on the INFINET Products and who has the
responsibility as the primary interface to the prospective Institutional
Customer and INFINET.
"Nelnet Services" means Nelnet's products and services including those
available through the Nelnet Site.
"Nelnet Site" means Nelnet's web site located at http://www.nelnet.net
(or any replacement or successor address) and all third party co-branded or
mirrored addresses or sites thereof.
"Qualified Sales Lead" or "QSL" means each qualified prospective
Institutional Customer generated by Nelnet on behalf of INFINET as defined by
the following: prospective Institutional Customer has a need for the INFINET
Products, has the budget approved for the INFINET Products, the key decision
makers have been in contact with the Nelnet sales representative and the Nelnet
Product Specialist has had at least one meeting with the Institutional Customer
where they provided a demonstration of the INFINET Products and they have
confirmed that the prospective Institutional Customer is a serious target
account for both Nelnet and INFINET. All information including contacts, notes,
background, etc., must be released to INFINET as part of the QSL process.
2. MARKETING BY NELNET
2.1 Nelnet is hereby authorized to and may market the INFINET Products
jointly with INFINET to current or potential Institutional Customers in the
Education Market.
2.2 In connection with its marketing under this Agreement, Nelnet is
licensed to use the Marks associated with INFINET and the INFINET Products
("INFINET Marks"). If Nelnet uses any such INFINET Marks on its materials, then
Nelnet shall follow INFINET's guidelines for use of each such INFINET Mark and
also place the notices "powered by INFINET Solutions" and "QUIKPAY(R) or [the
INFINET Mark being used] is a mark of INFINET Solutions" on the materials.
Nelnet's use of the INFINET Marks is subject to commercially reasonable
mark-license practices, including INFINET's right to review and control the use
of the INFINET Marks, the nature and quality of the associated goods and
services, and Nelnet's compliance with the trademark guidelines. Nelnet shall
not use or attempt to register any marks confusingly similar to the INFINET
Marks, nor aid any third party to do so, with respect to any goods in any
country of the world. Except as provided in this Agreement, no licenses of
INFINET's Marks are granted or implied.
2.3 In connection with its marketing under this Agreement, INFINET is
licensed to use the Marks associated with Nelnet and the Nelnet Services
("Nelnet Marks"). If INFINET uses any such Nelnet Marks on its materials, then
INFINET shall follow Nelnet's guidelines for use of each such Nelnet Mark and
also place the notice "Nelnet or [the Mark being used] is a mark of Nelnet,
Inc." on the materials. INFINET's use of the Nelnet Marks is subject to
commercially reasonable mark-license practices, including Nelnet's right to
review and control the use of the Nelnet Marks, the nature and quality of the
associated goods and services, and INFINET's compliance with the trademark
guidelines. INFINET shall not use or attempt to register any marks confusingly
similar to the Nelnet Marks, nor aid any third party to do so, with respect to
any goods in any country of the world. Except as provided in this Agreement, no
licenses of Nelnet's Marks are granted or implied.
3. MARKETING SUPPORT
3.1 Nelnet's Obligations. Nelnet agrees to undertake the following
obligations hereunder:
(a) Work with INFINET to package the offering of services in a manner
conducive to each party promoting the other parties services
along with its own.
(b) Work with INFINET to develop appropriate marketing materials to
promote both parties' services. All costs associated with the
development of the marketing materials to be used by Nelnet shall
be borne by Nelnet.
(c) Conduct joint marketing activities with INFINET to promote the
parties' services, including by way of example, webcasts,
conferences, speaking engagements and user group meetings.
(d) Establish a Web page and Link from the Nelnet Site to the INFINET
Site that describes the INFINET Products in a manner acceptable
to both parties.
(e) Generate QSL's for INFINET Products and provide QSL's to INFINET
to continuation and completion of sales process. Nelnet Product
Specialists are to remain involved in the sales process after
providing the QSL to INFINET.
(f) Share in the cost of INFINET Products set up charges at certain
Institutional Customer sites as agreed between Nelnet and
INFINET. For Institutional Customers with less than five hundred
(500) full time equivalent students (FTE'S) the cost of set up
will be divided evenly between Nelnet, INFINET and the
Institutional Customer or as agreed to by the parties on a case
by case basis.
3.2 INFINET's Obligations. INFINET agrees to undertake the following
obligations hereunder:
(a) Work with Nelnet to package the offering of services in a manner
conducive to each party promoting the other parties services
along with its own.
(b) Work with Nelnet to develop appropriate marketing materials to
promote both parties' services.
(c) Conduct joint marketing activities with Nelnet to promote the
parties' services, including by way of example, webcasts,
conferences, speaking engagements and user group meetings.
(d) Establish a Web page and Link from the INFINET Site to the Nelnet
Site that describes the Nelnet Services in a manner that is
acceptable to both parties.
(e) Track and maintain a log of QSL's submitted by Nelnet and issue a
report on a quarterly basis to advise Nelnet of sales progress.
(f) Generate a quarterly report of all Nelnet-generated Institutional
Customers, total revenue and Nelnet percentage of revenue, in
order to generate payment to Nelnet.
4. COVENANTS AS TO MARKETING
4.1 Nelnet covenants that its marketing efforts provided for in this
Agreement shall at all times comply with all applicable laws, rules, and
regulations and will not contain any material that is obscene, threatening,
fraudulent, harassing, libelous, materially false, misleading, inaccurate, or
otherwise illegal.
4.2 Nelnet covenants that it shall not make any assertions or warranties
as to the performance of the INFINET Products or services unless such assertions
or warranties are approved in advance in writing by INFINET.
4.3 Nelnet covenants that it shall not conduct marketing efforts in a
manner that would diminish the reputation of INFINET or INFINET's plans,
products or services.
5. OWNERSHIP
5.1 INFINET reserves for itself and its licensors all right, title and
interest in and to the INFINET Products, the Confidential Information of INFINET
(as defined in Section 11), including, without limitation, all copyrights,
patents and other intellectual proprietary rights. All rights not expressly
granted in this Agreement are reserved.
5.2 Nelnet acknowledges that nothing contained in this Agreement
transfers to it any right, title or proprietary interest (including without
limitation any intellectual-property rights), in any part of INFINET's marketing
materials or efforts, the INFINET Products or any proprietary information
(including without limitation any Marks, trade secrets, know how, inventions,
patents (including any applications, extensions, continuations, renewals and
re-issues thereof), copyrights, designs and industrial designs).
5.3 Nelnet reserves for itself all right, title and interest in and to
the Confidential Information of Nelnet (as defined in Section 11), and all
copyrights, patents and other intellectual proprietary rights. All rights not
expressly granted in this Agreement are reserved.
6. PAYMENTS BY INFINET
If INFINET gains an Institutional Customer for the INFINET Products
through a QSL from Nelnet and a contract with such Institutional Customer is
executed within 12 months of the first meeting between INFINET and that
Institutional Customer, then INFINET shall pay to Nelnet a commission equal to
ten percent (10%) of the INFINET Product eBill and ePaymentTransaction-fee
revenue collected by INFINET from that Institutional Customer during the initial
term of the agreement with the Institutional Customers, which initial term shall
be for a minimum of (3) years. Notwithstanding the foregoing, if the
Institutional Customer terminates its agreement prior to the end of the three
(3) year term set forth above or signs an agreement for less than a three (3)
year term, INFINET shall be relieved of its commission obligation to Nelnet as
of the date of such termination.
6.1 Nelnet will make available information regarding the INFINET
Products as part of its service offerings, and will market the INFINET Products
to its existing and potential Institutional Customers. However, INFINET will
have all sales responsibilities for the INFINET Products, with assistance from
Nelnet Product Specialists.
6.2 Nelnet will prominently display the INFINET logos and the INFINET
Product logos on its marketing materials as Nelnet deems appropriate, and will
include a description of the alliance between the two firms on its website.
7. TERMS OF PAYMENTS
7.1 Commissions shall be due from INFINET to Nelnet each calendar
quarter. Commission payments shall be made within thirty days of the end of each
calendar quarter.
7.2 Each payment shall include reasonable supporting documentation
sufficient to enable the recipient to confirm the accuracy of the payment.
INFINET shall allow Nelnet (on not more than one occasion in any twelve-month
period) to examine its financial books and records, solely to determine
compliance with the payment obligations of the Agreement. Any such examination
shall be at the sole expense of Nelnet. An examination may only be conducted by
authorized representatives of Nelnet and during regular business hours of
INFINET. Nelnet shall give ten-business-days' written notice of an examination
and the name of each representative conducting the examination. In no event
shall an examination be conducted contrary to any privacy or other
confidentiality obligations imposed by law or agreement with a third party.
8. NON-SOLICITATION OF EMPLOYEES
8.1 During the Term of this Agreement neither party shall solicit the
employees or contractors of the other party for employment, or contract with the
employees of the other party unless mutually agreed in writing by Nelnet and
INFINET. This provision shall survive the expiration or termination of this
Agreement by two years.
8.2 This Section 8 shall not restrict the right of Nelnet or INFINET to
solicit or recruit generally in the media, and shall not prohibit Nelnet or
INFINET from hiring any employee of the other who answers any advertisement,
responds to such general recruiting efforts, or who otherwise voluntarily
applies for employment without having been personally solicited or recruited by
the other party.
9. INDEMNITY
9.1 Each party (the "Indemnifying party") shall indemnify the other
party (the "Indemnified party") from and against any and all third-party claims
(including damages, attorneys' fees, and costs) arising (i) solely out of the
actions of the Indemnifying party under this Agreement or (ii) solely from the
Indemnified party's use of the Indemnifying party's Mark under this Agreement,
provided as a condition precedent that:
(a) the Indemnifying party has sole control of the defense and
settlement of the claim; provided that the Indemnifying party
will obtain the Indemnified party's prior written consent before
entering into a settlement that would attribute fault to the
Indemnified party and
(b) the Indemnified party promptly notifies the Indemnifying party
following receipt of the claim, providing the Indemnifying party
with information reasonably available to the Indemnified party
and any reasonable assistance related to the claim (including
without limitation requested documents and information) at the
Indemnifying party's expense as the Indemnifying party requests
from time to time.
9.2 Neither party shall have liability under Section 9.1 for any
infringement claim based on or to the extent arising from an unauthorized
combination or alteration of the Marks, or unauthorized use of the Marks in any
way not in strict compliance with the written quality standards of the party
owning the Marks.
9.3 The Indemnifying party's obligation to defend, indemnify and hold
harmless the Indemnified Party, as applicable, pursuant to this Section 9 shall
be subject to the Indemnified Parties having given the Indemnifying Party prompt
written notice of the applicable claim, and information and reasonable
assistance, at the Indemnifying Party's expense, for the defense or settlement
thereof. The Indemnifying Party shall have sole control of the defense and
settlement of such claim, provided that the indemnifying party shall not settle
such claim in a manner which imposes any obligation on the indemnified party
without, the prior written consent of the indemnified parties, which consent
shall not be unreasonably withheld. The indemnified parties shall be entitled to
engage counsel at its sole expense to consult with the indemnified parties with
respect to the defense of the claim.
10. TERM AND TERMINATION
10.1 This Agreement shall have an initial term (the "Initial Term") of
three years from the Effective Date and shall be subject to succeeding renewal
terms of one year (each a "Renewal Term") unless within not less than 90 days
prior to the scheduled expiration of the Initial Term (or any succeeding Renewal
Terms), either party (the "Terminating Party") shall have delivered written
notice to the other party of the Terminating Party's election to not extend the
Initial Term (or, as the case may be, any succeeding Renewal Term), in which
case the Agreement shall terminate upon the last day of the Initial Term (or, as
the case may be, upon the last day of any succeeding Renewal Term).. The Initial
Term together with any Renewal Term is hereinafter referred to as the "Term."
10.2 Either party may terminate this Agreement if the other party does
not cure a material breach of this Agreement within sixty (60) days after
receiving written notice of the breach.
10.3 Either party may terminate this Agreement effective immediately and
without notice if the other becomes insolvent or seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the other
(and not dismissed within sixty (60) days).
10.4 Either party may terminate this Agreement effective upon seven (7)
days notice if such party, after consultation with legal counsel, reasonably
believes that the activities of the other Party or the content of such other
Party's Web Site or the statements of opinions express on or through such web
site, whether in connection with this Agreement or otherwise, has or is
substantially likely to expose such Party to criminal or civil liability.
10.5 Upon termination of this Agreement under this Section 10, (i) all
Mark licenses granted under this Agreement shall immediately terminate and each
party shall immediately cease use of the other party's Marks, (ii) each party
shall immediately cease use of and return to the other party all of the other
party's Confidential Information and (iii) each party shall provide an
accounting of all payments due or accrued.
10.6 This Section 10 shall survive termination until all obligations
have been fulfilled. Sections 5, 9, 11 and 12 shall survive termination of this
Agreement.
10.7 Any termination of this Agreement under this Section 10 is without
prejudice to any other rights or remedies a party may be entitled to under this
Agreement or at law. It does not affect any accrued rights or liabilities of
either party nor any provision which is expressly or by implication intended to
come into force on, or continue in force after, termination.
11. CONFIDENTIALITY
11.1 Either Party (the "Disclosing Party") may from time to time
disclose Confidential Information to the other Party (the "Recipient").
"Confidential Information" is all information relating directly or indirectly to
the Disclosing Party or the business, strategies, technology, intellectual
property, products, markets, condition (financial or other), operations,
internal structure or prospects of the Disclosing Party WHICH is conveyed to the
Recipient (whether orally, in writing, via Internet transmittal or otherwise),
or which the Recipient otherwise learns or obtains, through observation or
through analysis of such information, data or knowledge, and is marked as
"confidential" or "proprietary," which is identified as "confidential" prior to
disclosure, or which, under all the circumstances, the Recipient ought
reasonably believe to be deemed to be confidential or proprietary.
11.2 Recipient will keep in confidence and will not disclose or
disseminate, or permit any employee, agent or other person working under
Recipient's direction to disclose or disseminate, the existence, source, content
or substance of any Confidential Information to any other person. In the event
that Recipient is requested by a government and/or regulatory authority or
becomes legally compelled to disclose any of the Confidential Information,
Recipient will provide the Disclosing Party with prompt notice of such request
so that the Disclosing Party may seek an appropriate protective order or other
appropriate remedy and Recipient shall cooperate with the Disclosing Party in
such efforts. If a protective order or other remedy is not obtained and the
Recipient is compelled to disclose any of the Confidential Information, the
Recipient may furnish that portion (and only that portion) of the Confidential
Information that is legally required to be disclosed.
11.3 In performing its obligations under this Section 11, Recipient will
employ at least the same degree of care as Recipient employs with respect to its
own confidential information, but in no event less than a reasonable degree of
care, to protect against disclosure of the Confidential Information. Recipient
will provide its employees and independent contractors with access to the
Confidential Information only on a need-to-know basis. Recipient agrees to
clearly inform its employees of these confidentiality obligations and require
independent contractors to execute a non-disclosure agreement with Recipient
that imposes a duty to maintain the confidentiality of information identified or
described as confidential by Recipient. Recipient will not copy or load any of
the Confidential Information onto any computing device or store the Confidential
Information electronically except in circumstances in which Recipient has taken
precautions consistent with this Section 11 to prevent access to the information
stored on such device or electronic storage facility by anyone other than the
persons entitled to receive the Confidential Information hereunder.
11.4 INFINET agrees that all information related to or contained in
documents subject to this Agreement, including without limitation "Nonpublic
Personal Information" (as such term is defined in the regulations implementing
Subtitle A of Title V of the Graham-Leach-Bliley Act, Pub. L. 106-102, codified
at 15 U.S.C. 6801 et seq.), received or obtained, directly or indirectly, by
infiNET pursuant to or in connection with of this Agreement, (hereinafter
collectively referred to as "NPI") constitutes Confidential Information of
Nelnet, and INFINET shall keep all such NPI in strictest confidence on Nelnet's
behalf.
12. REPRESENTATIONS AND WARRANTIES
12.1. INFINET represents and warrants that: (a) INFINET has full
authority to enter into this Agreement; and (b) INFINET will comply with all
applicable federal, state and local laws in the performance of its obligations
hereunder, including but not limited to laws concerning student and financial
disclosures.
12.2. Nelnet represents and warrants that: (a) Nelnet has full authority
to enter into this Agreement; and (b) Nelnet will comply with all applicable
federal, state and local laws in the performance of its obligations hereunder,
including but not limited to laws concerning student and financial disclosures.
12.3 THE WARRANTIES SET FORTH IN ABOVE ARE THE ONLY WARRANTIES MADE BY
THE PARTIES. THE PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES
OR GUARANTEES AS TO THE ACCURACY OF THE INFINET PRODUCTS; THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; THAT THE INFINET PRODUCTS
WILL OPERATE ERROR FREE; THAT ANY PERCEIVED DEFECTS IN the INFINET Products WILL
BE CORRECTED; OR THAT THE USE OF THE INFINET PRODUCTS WILL NOT BE INTERRUPTED
DUE TO DEFECT OR THE FAULT OF ANY PERSON, ENTITY OR SYSTEM. WITHOUT LIMTATION ON
THE FOREGOING, INFINET PROVIDES THE INFINET PRODUCTS "AS IS."
13. ASSIGNMENT
Neither party may assign all or any part of this Agreement, except to a
party's affiliate, without the prior written consent of the other party. This
Agreement shall inure to the benefit of and be binding on the parties hereto and
their successors and permitted assigns.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
concerning its subject matter and supersedes all written or oral prior
agreements or understandings with respect to its subject matter.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all that together shall constitute a
single instrument.
16. AMENDMENT
This Agreement may only be amended by written agreement between the
parties.
17. SEVERABILITY
This Agreement is subject to the restrictions, limitations, terms and
conditions of all applicable laws, governmental regulations, approvals and
clearances. If any term or provision of this Agreement shall for any reason be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or provision
hereof or thereof, and this Agreement shall be interpreted and construed as if
such term or provision, to the extent the same shall have been held to be
invalid, illegal or unenforceable, had never been contained herein. The parties
shall endeavor to carry into the intent of the severed portion to the extent
permitted by law.
18. FURTHER ASSURANCES
Each party agrees to execute and deliver such documents as may be
required to implement any part of this Agreement.
19. WAIVER
The failure or delay by either party to exercise or enforce any of its
rights or to enforce any obligation which the other party is in breach of under
this Agreement is not a waiver of that right and will not bar enforcement of
that obligation (or any similar or other obligation) at that time or at any
subsequent time.
20. RELATIONSHIP OF PARTIES
The parties are and shall remain independent contractors. Nothing in
this Agreement establishes a partnership, joint venture, franchise, or agency
relationship between the parties.
21. PUBLICITY AND DISCLOSURE
Unless mutually agreed upon by the parties, no party shall originate any
publicity, news release, or other public announcement, written or oral, whether
to the public, press, stockholders, or otherwise, relating to this Agreement,
any amendment to this Agreement or performance under this Agreement, save only
such announcement as in the opinion of legal counsel to the party making such
announcement is required by law to be made. The party making such announcement
shall give the other party an opportunity to review the form of the announcement
before it is made. The parties acknowledge that either party may file this
Agreement with the Securities and Exchange Commission pursuant to applicable
regulations.
22. NOTICES
Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one business day after deposit with an overnight
courier service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall be:
If to INFINET:
INFINET Integrated Solutions, Inc.
1425 East Busch Parkway
Buffalo Grove, Illinois 60089
Telephone: (847) 821-3880
Facsimile: (847) 821-3881
Attention: Harvey C. Gannon
With a copy to:
Gardner, Carton & Douglas
191 N. Wacker Drive
Suite 3700
Chicago, Illinois 60606
Telephone: (312) 569-1118
Facsimile: (312) 569-3118
Attention: John P. Goebel
If to Nelnet:
Nelnet, Inc.
3015 S. Parker Road, Suite 400
Aurora, CO 80014
Telephone: 303 696 5126
Facsimile:
Attention: Alina Laikola, Director, Campus Solutions
With a copy to:
Nelnet, Inc.
3015 S. Parker Road, Suite 400
Aurora, CO 80014
Telephone: 303 696 5411
Facsimile: 303 696 5640
Attention: General Counsel
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service, shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
23. LAW
The laws of the State of Illinois govern this Agreement.
Nelnet, Inc. INFINET Integrated Solutions, Inc.
By: /s/ Todd Eicher By: /s/ Harvey Gannon
- --------------------------------- -----------------------------------
Name: Todd Eicher Name: Harvey Gannon
Title: Executive Director Title: Chief Executive Officer