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EXHIBIT 10.19
SUPPLY AGREEMENT
This Supply Agreement (hereafter, this "AGREEMENT") is made and entered into as
of January 1, 2000 (the "EFFECTIVE DATE") by and between INTUIT INC., a Delaware
corporation (hereafter, "INTUIT") and the XXXX X. XXXXXXX COMPANY, a Georgia
corporation (hereafter, "XXXXXXX").
RECITALS
A. Intuit develops and markets financial and other software products, and also
markets custom printed forms (such as checks and invoices) and other
related supplies to its customers for use in conjunction with certain
Intuit software products. Xxxxxxx is a printer and supplier of checks,
invoices and other forms that it distributes primarily through third
parties, such as software companies, retail establishments, and financial
institutions. From time to time, Xxxxxxx distributes its products directly
to end customers. Xxxxxxx has supplied checks and invoices to Intuit since
1989.
B. Intuit and Xxxxxxx entered into a Supply Agreement as of August 23, 1995
(the "PRIOR AGREEMENT").
C. Intuit and Xxxxxxx now wish to enter into this Agreement, which will
replace and supersede the Prior Agreement, pursuant to which Xxxxxxx will
perform its obligations under this Agreement so as to maintain the high
level of service to Intuit that Xxxxxxx has historically provided to
Intuit. In addition, the parties recognize that as the market for
software-compatible forms becomes increasingly competitive, service,
quality and price will be increasingly important competitive factors in the
success of the Intuit/Xxxxxxx business relationship. Accordingly, this
Agreement is intended to reflect Intuit's business need for continuous
improvement in quality, turnaround time, customer service and price.
NOW THEREFORE, the parties hereby agree as follows:
GENERAL TERMS
1. CERTAIN DEFINITIONS. As used in this Agreement, certain terms will have the
meanings defined for such terms in Appendix 1 hereto.
2. TERM. The "TERM" of this Agreement means the time period beginning on the
Effective Date and ending on the earlier of (i) August 31, 2005, or (ii)
the date this Agreement is terminated in accordance with the provisions of
Section 45 hereof, provided however, that if this Agreement is renewed in
accordance with the provisions of Section 43 (OPTION TO RENEW), then the
"Term" shall include any term for which this Agreement is renewed pursuant
to Section 43 hereof.
3. RESPONSIBILITY OF XXXXXXX.
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(a) Responsibilities of Xxxxxxx. Xxxxxxx acknowledges and agrees with
Intuit that Xxxxxxx is and shall remain fully liable and responsible
for: (i) the performance of all Harland's obligations under this
Agreement, whether such obligations are performed by Xxxxxxx and/or
any other person or entity who acts as Harland's agent or otherwise
acts for, under the direction of, or on behalf of Xxxxxxx, and (ii)
any acts or omissions of Xxxxxxx and/or any other person or entity who
acts as Harland's agent or otherwise acts for, under the direction of,
or on behalf of Xxxxxxx.
(b) Employment of Xxxxxxx Personnel. Xxxxxxx will employ Xxxxxx Xxxxxx and
cause him to be the Xxxxxxx manager primarily responsible for
producing Intuit's work and managing the performance of Harland's
duties and obligations to Intuit under this Agreement as long as he is
employed by Xxxxxxx.
(c) Dedicated Xxxxxxx Personnel . Beginning no later than August 1, 2000,
and continuing throughout the term of this Agreement, Xxxxxxx will
maintain a staff of employees dedicated to the Intuit FSG account.
This staff will include, but not be limited to, dedicated resources
for:
(i) systems analysis and programming (at least two FTEs);
(ii) account management (at least one FTE);
(iii) Bank File maintenance (at least 1/2 FTE); and
(iv) marketing (product development and compliance);
who are reasonably acceptable to Intuit.
(d) Succession of Management. During the term of this Agreement, Xxxxxxx
shall consult with Intuit regarding and allow Intuit to review any
material changes in the responsibility for producing Intuit's work and
managing the performance of Harland's duties and obligations to Intuit
under this Agreement.
4. EXCLUSIVITY AND NEGOTIATION RIGHTS.
(a) Exclusive Intuit Products. As a material inducement to Xxxxxxx to
enter into this Agreement and subject to subsection (b) below, Intuit
agrees that during the Term Xxxxxxx shall be Intuit FSG's (as defined
in Appendix 1) exclusive supplier of the Exclusive Intuit Products (as
defined in Appendix 1) that are sold and delivered to Customers
located within the geographical boundaries of the United States of
America and its territories, provided that Xxxxxxx is not in default
under this Agreement. Xxxxxxx shall not be Intuit's exclusive supplier
of any other Intuit Products (as defined in Appendix 1) except as may
be subsequently agreed upon between Intuit and Xxxxxxx in writing.
Nothing herein will prevent Intuit from purchasing (or ordering)
printed checks, invoices, other forms, or other products
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from any other party for distribution to Customers located outside the
geographic boundaries of the United States of America and its
territories.
(b) Sales to Franchises. To the extent that Intuit FSG wishes to have a
supplier provide it with Exclusive Intuit Products for sale to
franchises, Intuit FSG will at its option either: (i) prior to
negotiating with any third party suppliers, negotiate in good faith
with Xxxxxxx regarding Xxxxxxx supplying such Exclusive Intuit
Products for such purpose; or (ii) first simultaneously negotiate in
good faith with Xxxxxxx and with one or more other suppliers regarding
either Xxxxxxx supplying such Exclusive Intuit Products for such
purpose, or one or more of such other suppliers supplying such
Exclusive Intuit Products for such purpose.
(c) Other Products. To the extent that, at any time during the term of
this Agreement, Intuit FSG wishes to have a supplier provide it with
products, other than the Exclusive Products, that Xxxxxxx at such time
is also offering for sale to Customers, Intuit FSG will at its option
either: (i) prior to negotiating with any third party suppliers,
negotiate in good faith with Xxxxxxx regarding Xxxxxxx supplying such
products to Intuit; or (ii) first simultaneously negotiate in good
faith with Xxxxxxx and with one or more other suppliers regarding
either Xxxxxxx supplying such products to Intuit, or one or more of
such other suppliers supplying such products to Intuit.
5. CONFIDENTIALITY OF TERMS OF AGREEMENT AND PURCHASE INFORMATION. The terms
of this Agreement, including without limitation prices and Order volumes,
is confidential and may not be released by either party to anyone (other
than employees, counsel or others having a bona fide need to know who have
signed confidentiality agreements with the party in question) without the
prior written consent of the other party; except that, to the extent that a
party to this Agreement is legally required to disclose terms of this
Agreement under applicable law, rule, regulation or order of any court or
governmental authority (including but not limited to disclosure made to
comply with applicable state and federal securities laws and securities
reporting requirements, disclosure required by Court order or otherwise
legally required), such party may disclose such terms and information that
are, in the good faith opinion of its legal counsel, legally required to be
disclosed without obtaining the other party's prior written consent to such
disclosure. If such disclosure is legally required, the disclosing party
shall use reasonable efforts to restrict such disclosure to the extent
reasonably practicable, given the circumstances. The provisions of this
Section shall bind Xxxxxxx and each of its present and future affiliates.
6. CONFIDENTIALITY OF SUPPLY. Xxxxxxx, on behalf of itself and its present and
future affiliates covenants with Intuit that it will not disclose to any
Intuit Customers the source of supply of Products that Xxxxxxx produces and
ships for Intuit. Specifically, no reference to Xxxxxxx, any affiliate of
Xxxxxxx, or any party other than Intuit may appear on any of the Intuit
Products or on any shipping container, shipping label, reorder form or
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any other material the Customer may receive or perceive in connection with
delivery of his/her order.
7. OWNERSHIP AND CONFIDENTIALITY OF INTUIT CUSTOMER INFORMATION.
(a) Xxxxxxx, on behalf of itself and its present and future affiliates
recognizes that all information about Intuit's Customers, including
but not limited to names of such Customers, names of contact persons
at such Customers, addresses, telephone numbers, Bank names, Bank
accounts, Customer Logos (as defined in Section 30(a)) and Intuit
product ownership and order history is Intuit's sole and exclusive
property and constitutes a valuable proprietary trade secret of
Intuit. Xxxxxxx, on behalf of itself and its present and future
affiliates covenants and agrees to protect such information from
disclosure to third parties and covenants not to use such information
for any purpose other than for the printing and shipping of the Orders
placed by Intuit under this Agreement as specified by Intuit in
writing.
(b) Xxxxxxx will fully comply with Intuit's confidentiality and privacy
policies as specified by Intuit from time to time.
8. OWNERSHIP AND CONFIDENTIALITY OF BANK FILE AND INTUIT SYSTEMS AND
PROCESSES.
(a) Xxxxxxx, on behalf of itself and its present and future affiliates,
acknowledges and agrees that:
(i) the information and data contained in the Bank File (as defined
in Appendix 1) related to the formatting of customer and Bank
information to prepare an order for printing; and
(ii) the information and data added to the Bank File during the term
of this Agreement;
are Intuit's confidential property and constitute a proprietary trade
secret of Intuit (collectively "BANK FILE CONFIDENTIAL INFORMATION").
Xxxxxxx covenants and agrees to hold all such Bank File Confidential
Information in strict confidence and not to use such Bank File
Confidential Information for any purpose other than as permitted by
this Agreement. Exhibit C contains Harland's prior agreement to the
foregoing, and Xxxxxxx hereby assigns, transfers, and conveys to
Intuit any and all of Harland's worldwide right, title, and interest
in and to the Bank File Confidential Information, in any medium, and
all copies thereof in whole or in part.
(b) Xxxxxxx, on behalf of itself and its present and future affiliates,
acknowledges and agrees that Intuit's systems and processes
(including, but not limited to, COSMOS) to which Xxxxxxx has access in
connection with the performance of its
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obligations under this Agreement are Intuit's confidential property
and constitute a proprietary trade secret of Intuit ("INTUIT
CONFIDENTIAL INFORMATION"). Xxxxxxx covenants and agrees to hold all
such Intuit Confidential Information in strict confidence and not to
use such Intuit Confidential Information for any purpose other than as
permitted by this Agreement.
9. OWNERSHIP AND CONFIDENTIALITY OF XXXXXXX SYSTEMS AND PROCESSES. Intuit, on
behalf of itself and its present and future affiliates, acknowledges and
agrees that: (i) Xxxxxxx-specific knowledge of the technology employed to
implement Direct-to-Plate savings; and (ii) specialized information and
technology developed by Xxxxxxx to produce check and related stationery
items in an efficient and economical manner, are Harland's confidential
property and constitute a proprietary trade secret of Xxxxxxx ("XXXXXXX
CONFIDENTIAL INFORMATION"). Intuit covenants and agrees to hold all such
Xxxxxxx Confidential Information in strict confidence and not to use such
Xxxxxxx Confidential Information for any purpose other than as permitted by
this Agreement.
10. EXCLUSIONS OF CONFIDENTIAL INFORMATION. The confidentiality obligations set
forth anywhere within this Agreement do not apply to information that: (i)
is or becomes generally known or available by publication, commercial use
or otherwise through no fault of the receiving party; (ii) is known to the
receiving party at the time of disclosure without violation of any
confidentiality restriction and without any restriction on the receiving
party's further use or disclosure; (iii) is received from a third party
without a confidentiality obligation; or (iv) is independently developed by
the receiving party.
11. DIRECT ORDERS AND INQUIRIES. Neither Xxxxxxx nor any of its affiliates will
sell Intuit Products to anyone other than Intuit, unless specific advance
written permission is given by Intuit. Xxxxxxx and its affiliates will not
accept Orders or reorders for Intuit Products from any party other than
Intuit or any of its affiliates and will refer all inquiries for same to
Intuit. Xxxxxxx and its affiliates will continue to take orders for
products compatible with Intuit software provided that they are not printed
on Intuit Base Stock and do not carry any Intuit Marks (as defined in
Section 30(b)(i)) as branding.
PRODUCTION
12. PURCHASE ORDERS. For each Order that Intuit sends to Xxxxxxx under this
Agreement, Intuit shall provide Xxxxxxx with an electronic transmission of
the Customer information required to produce the Order or a purchase order
in the form of a copy of the Customer's original Order. The format and
process for exchanging the electronic Order transmission or purchase order,
and the information each will contain, will be mutually agreed to by Intuit
and Xxxxxxx.
13. TYPESETTING, PRODUCTION, SHIPPING. Xxxxxxx will be responsible for
typesetting the custom information for each Order, acquiring materials
(including Intuit
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Base Stock), formatting and printing the information and MICR lines as
required, and shipping the Products directly to the Customer.
14. FORMAT AND CONTENTS OF PRINTED INFORMATION. The format and contents of the
Customer's printed Order information shall be mutually agreed upon by
Intuit and Xxxxxxx, but it is understood that at a minimum the printed
information will always adhere to generally accepted Bank standards
including, but not limited to, ANSI x9.27 and x9.13 and the most recent
ANSI or industry body imaging standard as required by the Customer's Bank
and be reasonably readable by the Customer's Bank processing
(reader/sorter) equipment.
15. BANK FILE MAINTENANCE. At Intuit's option: (a) Xxxxxxx agrees to maintain
the Bank File (as defined in Appendix 1), which provides account number
validation, transit/routing validation and MICR line formatting by Bank and
account type of and for Intuit Customers, on behalf of Intuit; and (b) the
Bank File shall be managed, maintained and updated by Xxxxxxx on behalf of
Intuit and a copy of the physical database shall be located on Intuit
premises and updated routinely to insure access to Customer information,
all in accordance with Intuit's instructions.
16. MICR QUALITY. Xxxxxxx warrants and guarantees to Intuit that the MICR line
on all checks produced under this Agreement for Intuit Customers will
adhere to generally accepted Bank standards, including but not limited to
ANSI x9.27 and x9.13 and the most recent ANSI or industry body imaging
standard. If for any reason the MICR line on the check does not meet the
generally accepted Bank's standards, Xxxxxxx will work with the Bank to
make the necessary changes and reprint and reship the Order at Harland's
sole cost and expense (including shipping).
17. PACKAGE INSERTS. Xxxxxxx will enclose with each Order shipped under this
Agreement a reorder form to be supplied or expressly pre-approved by Intuit
in writing. No other articles or material (such as promotional literature)
may be included in the package enclosing the shipped Order to a Customer
except as expressly pre-approved by Intuit in writing. Intuit may request
that Xxxxxxx insert articles, including but not limited to promotional
literature, in the Customer package. Intuit shall bear the material cost of
such inserts and the costs of transporting them to Xxxxxxx. The number,
size, or shape of the inserts may require packaging that is different from
that ordinarily used to package the underlying order item and order item
quantity, in which case Intuit and Xxxxxxx agree to negotiate a reasonable
and mutually agreeable resolution.
18. TURNAROUND TIME.
(a) Xxxxxxx shall process and ship each Order to the Customer within a
specified standard time of receipt of such Order. Because timeliness
of delivery to the Customer is an important competitive factor, as a
material inducement to Intuit to enter this Agreement, Xxxxxxx agrees
to process and ship Intuit Orders received by
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Xxxxxxx at least in accordance with the following timing/turnaround
requirements, which are obligations of performance by Xxxxxxx
hereunder:
The average time in plant for all Orders for Standard Products
shipped within any quarter shall be 24 hours or less. No more
than 5% of all Orders for Standard Products shipped within any
quarter will be shipped in more than 48 hours. An additional 8
hours shall be added on a per order weighted average basis for
prepress functions (i.e., editing, data entry, order entry, etc.)
when preformed by Xxxxxxx. Any day with unusual daily Order
volumes for Standard Products (exceeding 30% variance from the
previous 30 day average daily volumes) will be exempt from this
service commitment. In addition, Orders that are in any way
delayed due to Intuit systems issues or Intuit-caused errors
shall be exempt from the foregoing calculation.
(b) "ORDER RECEIVED BY XXXXXXX" or "RECEIPT OF THE ORDER BY XXXXXXX" shall
mean: (i) the availability to Xxxxxxx of the Order from Intuit's
ordering system (including but not limited to COSMOS and its
successors) after all prepress functions (i.e., editing, data entry,
order entry, etc.) have been completely performed; and/or (ii) the
availability to Xxxxxxx of a complete Order (i.e. Order containing all
required information such as product number, quantity, payment,
imprint, etc.) from a Customer. An Order is "SHIPPED" when it is
physically completed and ready for carrier pickup and has been
recorded as such in Harland's production system. "TIME IN PLANT" shall
mean the number of hours difference between the time the Order is
shipped and the time the Order is received by Xxxxxxx. "AVERAGE TIME
IN PLANT" for a given quarter shall mean the sum of time in plant for
all Orders shipped within the quarter divided by the total number of
Orders shipped within the quarter.
(c) For any consecutive three (3) month period ending on April 30, July
31, October 31, or January 31 during which Xxxxxxx does not meet the
turnaround requirements set forth above, Xxxxxxx shall pay Intuit a
fee of $100,000 within thirty (30) days following the close of such
three (3) month period. Should Xxxxxxx not meet the applicable
standard for one or more consecutive quarters, a material breach of
this Agreement by Xxxxxxx shall have occurred with consequences as
described in Section 45.
19. STANDARD SHIPMENT METHODS. Xxxxxxx will ship each completed Order to the
Customer's address. Unless otherwise indicated on the purchase order or
otherwise specified by Intuit (or unless otherwise expressly provided in
this Agreement), shipping shall be via UPS ground (hereinafter "UPS
GROUND") or comparable service where UPS ground is not available. Xxxxxxx
will have implemented a system so that 97% of Orders for Standard Products
shipped to an address in the continental United States will be shipped by
Xxxxxxx from a location that, according to material published by UPS, is
within three (3) business days of shipment via UPS ground of the addressee.
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Notwithstanding the foregoing, the selection of each shipping carrier will
be subject to Intuit's approval.
20. ERROR CORRECTION.
(a) Any Orders that have errors that are not the Customer's or Intuit's
fault ("XXXXXXX ERRORS") shall be corrected, reprinted and reshipped
by Xxxxxxx within twenty-four (24) hours (not including Saturday,
Sunday, or a nationally recognized holiday) after Xxxxxxx receives
notice of the error and the correct information by phone, electronic
mail, electronic transmission, first class, certified or registered
U.S. mail, or facsimile notice, and the corrected Order shall be
shipped via a ground shipping method (UPS or comparable) or express
shipping method (UPS Red Label or comparable) if requested by the
Customer. Xxxxxxx shall bear all printing and shipping costs of
correcting, reprinting and reshipping such corrected Order.
(b) In the event that the "Monthly Rerun Rate" (defined below) in any
given calendar month exceeds one percent, Xxxxxxx will pay to Intuit a
fee equal to $50.00 multiplied by the number of reruns in the given
month, if any, in excess of one percent multiplied by the given
calendar month's total order volume. "MONTHLY RERUN RATE" shall mean
the percentage of rerun items shipped in a given month that were
caused through Harland's fault based on the total number of items
shipped in the given month.
(c) If the reason for the Xxxxxxx Error is a Cross-Shipment (i.e.,
shipping an Order to the wrong customer), then Xxxxxxx shall pay a fee
of $100.00 to Intuit to reflect the added management time required and
security measures demanded by Customers. In the case of any other
Xxxxxxx Errors, subject to Harland's reasonable agreement and approval
on a case by case basis, Xxxxxxx shall reimburse Intuit for any
out-of-pocket expenses incurred by Intuit arising from such Xxxxxxx
Errors, including, but not limited to, commercially reasonable
payments that Intuit makes to Customers in connection with Customer
claims arising from such Xxxxxxx Errors.
(d) If the error in an Order is Intuit's fault or the Customer's fault,
then Xxxxxxx shall reprint and reship the Order via express shipping
within twenty-four (24) hours of being notified of the error and
Intuit shall bear the cost of reprinting, reshipping and the rush
charge (see Exhibit A) of such Order.
(e) Notwithstanding the foregoing, the selection of each shipping carrier
and shipping method will be subject to Intuit's approval.
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21. RUSH SHIPMENTS. At Intuit's request, Xxxxxxx will provide "rush" service
for an individual Standard Order. Rush Orders received by Xxxxxxx (as
defined in Section 18) by 11:00 AM Pacific time will be produced and
shipped the same day. Rush Orders received by Xxxxxxx after 11:00 AM
Pacific time will be produced and shipped the following Business Day. If
Xxxxxxx commits to rush an Order and such Order is not completed and sent
out as promised, then Xxxxxxx shall pay for the overnight shipping of the
Order to the Customer and an additional fee of $30.00 to cover the added
fulfillment costs, and shall waive payment of the Customer Rush charge (see
Exhibit A) by Intuit for that Order.
22. SERVICE FAILURES. If, for a reason that is attributable to Xxxxxxx, Xxxxxxx
is unable to ship an Order according to the then-current timeliness
standard, then the Order will be shipped using an overnight delivery
service approved by Intuit (such as UPS Red Label or Federal Express). In
such event, the difference in cost between the express service and the
service requested on the purchase Order shall be borne solely by Xxxxxxx.
In the event of a service failure resulting from a storm, natural disaster,
labor strike, transportation strike, computer failure, or related down time
associated from power outages, the service and timeliness standards of this
Agreement shall be suspended during such service failure and Intuit and
Xxxxxxx agree to work together to resolve the given situation as it may
occur.
23. QUALITY IMPROVEMENT. Quality improvement is critical to Intuit's long-term
success and Intuit intends to significantly reduce both Customer errors and
internal Intuit errors. Intuit expects that Xxxxxxx will reduce its
production and shipping errors by actively deploying Total Quality
Management philosophy, training and practices in its operations. Intuit and
Xxxxxxx agree to meet quarterly during the Term of this Agreement to review
key operating measures and programs designed to continually improve
performance. Any sustained (over two or more quarters) significant
degradation of performance in key operating performance (for example,
continually increasing Xxxxxxx induced errors) can be considered a material
breach of this Agreement by Xxxxxxx with consequences as described in
Section 45. Intuit must provide written notice of any such significant
degradation of performance as part of the quarterly review.
Intuit must make reasonable efforts to provide, in writing, 90 days in
advance, notice to Xxxxxxx of any new version of software or promotion
which could significantly change the order volume of Intuit Products. In
addition, Intuit must make reasonable efforts to provide Xxxxxxx with
non-binding annual projections for Intuit Products.
Both parties are responsible for engaging in a planning process that will
maximize the opportunities to meet service/quality thresholds and exceed
customer expectations. At a minimum, Intuit and Xxxxxxx agree to meet
quarterly to review performance and establish future objectives. The
locations and times of these meetings will be mutually agreed upon.
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24. CALL CENTER SUPPORT. Xxxxxxx will maintain phone support for Intuit sales
representatives. The minimum hours of support include the hours of 5:00am
to 6:00pm (Pacific Standard Time) on Business Days. Hours are to be
extended to later hours or weekends during peak business times of the year
as agreed to by Xxxxxxx and Intuit. Extended hours are subject to an
additional service charge as set forth in Exhibit A. During the hours of
support, Xxxxxxx will answer calls from Intuit representatives with an
average speed of answer of 30 seconds or less for 80% of the calls. The
longest call waiting is not to exceed 5 minutes.
25. ORDER CLARIFICATION. For the service charge for Order Clarification as set
forth in Exhibit A Xxxxxxx will make up to three contact attempts followed
by one mailing to a Customer for an incomplete or unclear Order (e.g.,
Order missing product numbers, quantity, payment, or imprint). The contact
attempts are to be made within the following periods: one day of receipt
(first attempt), three days of receipt (second attempt), and one week of
receipt (third attempt). The mailing is to be sent if there is no response
from the Customer after ten days of receipt of the Order, the postage for
which is to be borne by Intuit. An Order is to be held for up to 3 weeks or
as specified by Intuit after which the Order is sent back to the Customer.
26. ELECTRONIC BILLING. Xxxxxxx will provide xxxxxxxx in an electronic format
as agreed to by both Xxxxxxx and Intuit. The minimum fields includes: (i)
invoice number, (ii) invoice date, (iii) Intuit Order number (where
applicable), (iv) product or service description, (v) freight carrier
(where applicable), and (vi) amount.
27. ELECTRONIC ORDER PROCESSING. Xxxxxxx will maintain and make enhancements
where applicable in its production systems such that: (i) the minimum
percentage of Direct-to-Plate Orders of Standard Products compared to total
Orders of Standard Products is 90%; and (ii) the maximum Order reject rate
for Orders of Standard Products coming from Intuit's order system
(including but not limited to COSMOS and its successors) is less than 1%,
provided Xxxxxxx is given reasonable notice of Intuit-initiated system
changes.
28. LIQUIDATED DAMAGES. Xxxxxxx acknowledges that the compensation set forth in
Sections 18, 20, and 21 are not a penalty and that such compensation is
reasonable. Xxxxxxx further acknowledges that it is impractical and
extremely difficult to ascertain the actual amount of monetary damages
incurred by Intuit for violation or breach of the provisions set forth in
Sections 18, 20 and 21. This Section applies only to damages for breach of
contract arising out of violation or breach of the provisions of Sections
18, 20 and 21 by Xxxxxxx under this Agreement. Moreover, to the extent this
Agreement provides for such compensation, the right to require payment of
such compensation shall be the sole damages for such error or breach.
Except for such damages, Intuit reserves and retains any and all rights and
remedies available under this Agreement or otherwise.
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Intuit and Xxxxxxx agree to meet quarterly to monitor Intuit's right to
compensation as specified in this Section during the prior quarter and the
results of the cost savings measures specified in Section 38. The locations
and times of these meetings will be mutually agreed upon, and may coincide
with the quarterly meetings specified in Section 23.
PRODUCTS
29. PRODUCTS. Subject to the terms and conditions of this Agreement, Xxxxxxx
shall produce, provide and deliver to Intuit and its Customers all the
Exclusive Intuit Products, styles and colors that Intuit currently offers
as of the Effective Date. The parties may agree to add other Intuit
Products, styles, quantities and colors in the future. The terms of this
Agreement shall apply to any other Intuit Products that Xxxxxxx may supply
Intuit in the future pursuant to such an agreement, provided that such
other Intuit Products shall only be deemed to be additional Exclusive
Intuit Products to the extent that the parties expressly agree in writing.
Prices and charges for such other Intuit Products may be different from the
prices for Exclusive Intuit Products set forth herein and will be mutually
agreed to by Intuit and Xxxxxxx in separate written addenda or amendments
to this Agreement. Upon mutual agreement, the parties may agree to
eliminate certain Intuit Products in the spirit of improving quality and
customer satisfaction levels and/or lowering costs in the system.
30. LOGOS.
(a) Customer Logos. Xxxxxxx will include in the Intuit Products logos
requested by Customers ("CUSTOMER LOGOS"). Xxxxxxx will print all
standard Customer Logos at no charge. A set of standard Customer Logos
will be mutually agreed upon by both parties. Xxxxxxx will scan and
prepare custom Customer Logos from camera-ready artwork for a one-time
charge as listed in Exhibit B. Should clean-up work be required on the
Customer-submitted artwork in order to prepare it for printing an
additional clean-up charge will be added to the Order as listed in
Exhibit A. There will be no additional charge for printing either
custom or standard Customer Logos. Either standard or custom Customer
Logos are printed as part of the Customer's name and address for
positioning and sizing, and should appear on all plies of multi-ply
items except in cases where a logo must be printed using offset
technology on multi-part forms. In the event certain royalty payments
to third parties are required due to a Customer's request to use said
logos, the cost of these royalties shall be borne by Intuit or the
Customer.
(b) Intuit Marks.
(i) Xxxxxxx shall affix Intuit's trademark, service xxxx, trade names
and/or logos (collectively "INTUIT MARKS") on the Intuit Products
as specified by Intuit and in accordance with Intuit's trademark
usage requirements
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contained in Exhibit D, as such requirements may be modified by
Intuit from time to time ("TRADEMARK USAGE REQUIREMENTS").
(ii) Xxxxxxx agrees not to use or register in any jurisdiction any of
the Intuit Marks or any trademark, service xxxx, trade name or
logo resembling or confusingly similar to any of the Intuit
Marks or any component(s) thereof, or any marks that include the
Intuit Marks or component(s) thereof, or any marks that include
the character string "QUICK," notwithstanding the licensed usage
rights for the Intuit Products expressly granted in this
Agreement and fair-use statements in marketing for Harland's own
products, which may contain plain-text references to the
"Intuit", "Quicken" or "QuickBooks" marks for the sole purpose
of expressing basic compatibility, i.e., not for naming or
branding of Harland's own products or implying source,
affiliation or endorsement (e.g., "Xxxxxxx(R) Checks...for use
with QuickBooks(R) Accounting Software" and not "QuickBooks(R)
Checks by Xxxxxxx"). Xxxxxxx agrees not to act in any manner or
contribute in any way to actions or activities that would
adversely affect the goodwill or the ownership of the Intuit
Marks or any component(s) thereof. If Intuit notifies Xxxxxxx of
any such confusion, risk of confusion or adverse action, Xxxxxxx
agrees to take appropriate steps to immediately remedy or avoid
such confusion, risk of confusion, or action.
(iii) Xxxxxxx shall give Intuit notice of any known or presumed
infringements of the Intuit Marks, and Xxxxxxx, at Xxxxxxx'x
reasonable expense, shall render Intuit reasonable cooperation
(i.e. supporting documentation, testimony, etc.) for the
protection of the Intuit Marks. If Intuit decides to enforce its
rights in the Intuit Marks against an infringer, all costs,
expenses and reasonable attorneys' fees incurred (excluding
Harland's cooperative costs, expenses and reasonable attorneys'
fees) and recoveries made shall be for the account of Intuit.
(iv) Xxxxxxx acknowledges that the goodwill associated with the
Intuit Marks may be irreparably damaged if the Intuit Products
do not conform to industry standards and customer expectations
concerning the performance and quality of such products. The
Intuit Products will conform to the product quality requirements
specified in Sections 14 and 16. Xxxxxxx agrees to cooperate
with Intuit in facilitating Intuit's control of the quality of
the Intuit Products, to permit reasonable inspection of the
Intuit Products, and to supply Intuit with specimens of the
Intuit Products and use of the Intuit Marks upon request.
Xxxxxxx shall comply with all applicable laws and regulations,
and obtain all appropriate government approvals pertaining to
the sale, distribution, and advertising of the Intuit Products.
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(v) Xxxxxxx acknowledges Intuit's ownership of the Intuit Marks, that
any and all usage of the Intuit Marks will inure to the sole
benefit of Intuit, and that nothing in this Agreement or Intuit's
trademark usage requirements gives Xxxxxxx any right, title or
interest in the Intuit Marks. Xxxxxxx agrees not to attack the
validity or Intuit's ownership of the Intuit Marks. Permission to
display the Intuit Marks, other than on the Intuit Products and
in fair use plain-text compatibility statements as set forth in
Section 30(b)(ii) above, requires express written approval by
Intuit prior to any release or publication of advertising,
promotion or packaging, which approval can be withheld, and
strict adherence to Intuit's Trademark Usage Requirements. All
rights not expressly granted herein are reserved by Intuit.
31. SPECIFICATIONS. Intuit will provide Xxxxxxx with the specifications for the
Intuit Base Stock and printed information for all Exclusive Intuit Products
and any other Intuit Products that Intuit may ask Xxxxxxx to produce.
32. RIGHTS IN CHECK DESIGNS. Xxxxxxx acknowledges Intuit's ownership of all
worldwide copyrights, trademarks, service marks and trade dress rights in
Intuit Products, including but not limited to the alignment numbers in the
tractor feed strips of the checks, the layout and design of checks, and the
format of indicia on the checks. No transfer or license of any copyrights,
trademarks, service marks, trade dress rights or other intellectual
property rights in any Intuit Product is granted or implied by this
Agreement.
PRICING
33. SERVICE CHARGES. For each Order for which Xxxxxxx performs services under
this Agreement, Xxxxxxx shall charge Intuit the amounts set forth in
Exhibit A.
34. MANUFACTURING CHARGES. Manufacturing functions include all production
functions necessary to produce the Order after the Order has been made
available to Xxxxxxx from Intuit's ordering system (including, but not
limited to, COSMOS and its successors) with all prepress functions having
been completely performed (i.e., editing, data entry, order entry, etc.)
whether such functions are performed by Xxxxxxx, Intuit or some third
party. For each Order for which Xxxxxxx performs manufacturing functions,
Xxxxxxx shall charge Intuit the prices set forth in Exhibit B.
35. INCENTIVE ALLOWANCE. Xxxxxxx agrees to provide Intuit an incentive
allowance of $3,400,000 to be drawn upon at the rate of $50,000 per month
beginning with the first effective month of this agreement. Intuit may take
this allowance in the form of a credit against outstanding invoices of
Xxxxxxx to Intuit or may request payment of the advance in cash by wire
transfer.
36. MARKETING ALLOWANCE. In addition to the incentive allowance described in
Section 35, Xxxxxxx agrees to provide Intuit with an annual $300,000 in
marketing allowances for each twelve-month period ending on the anniversary
of the Effective Date.
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Such $300,000 annual amount will be prorated for any periods of less than
twelve months that occur during this Agreement. For example, for the period
beginning on January 1, 2005, and ending on August 31, 2005, the marketing
allowance would be equal to $200,000. Intuit may spend these marketing
allowances as it deems appropriate provided that such allowance is spent in
a manner reasonably calculated to increase the penetration of Intuit
Product to Customers in the Intuit software base. At Intuit's option,
Xxxxxxx will reimburse Intuit for these expenses either as a credit against
outstanding invoices or by wire transfer within thirty (30) days of receipt
of documentation substantiating the expenses. Xxxxxxx will provide Intuit
an annual accounting of the unused balance of this allowance.
37. PRICING/INCENTIVE PROVISIONS. Intuit acknowledges that Xxxxxxx has agreed
to favorable terms and conditions in this Agreement including the pricing
set forth in Sections 33 and 34, Exhibit A, and Exhibit B and the payment
of an incentive allowance (Section 35) and a marketing allowance (Section
36) based upon factors including Intuit FSG's current unit volume and
anticipated growth in unit volume. Accordingly:
(a) if during any period consisting of twelve (12) consecutive months
during the Term of this Agreement, Intuit's unit volume to Xxxxxxx
equals less than 750,000 units, Intuit shall not be entitled to any
further incentive allowance payments;
(b) if during any period consisting of twelve (12) consecutive months
during the Term of this Agreement, Intuit's unit volume to Xxxxxxx
equals less than 500,000 units, Xxxxxxx shall not be obligated to
provide Intuit the pricing set forth in this Agreement, and Xxxxxxx
and Intuit shall negotiate in good faith as to the applicable pricing.
If Xxxxxxx and Intuit are unable to agree upon the applicable pricing,
then such event can be considered grounds for non-performance under
this Agreement with consequences as described in Section 45.
38. FUTURE COST SAVINGS. Continuous improvement in reducing costs is critical
to competing effectively in the market. Xxxxxxx agrees to review with
Intuit its costs on an annual basis. Cost savings identified, other than
those associated with direct material costs, will be shared between Intuit
and Xxxxxxx with 60% of the savings going to Intuit and 40% to Xxxxxxx.
39. SPECIAL PROMOTIONS. From time to time Intuit may offer promotional programs
to Customers as a purchase incentive. Specific terms of promotions and
Harland's participation in same will be agreed upon in writing between
Xxxxxxx and Intuit.
40. ALLOWABLE PRICE ADJUSTMENTS. Xxxxxxx may not change any prices in this
Agreement or any of its Exhibits except to reflect changes in Harland's
direct material costs for paper and packaging material as described in
subparagraphs (a), (b), (c) and (d) and except as expressly set forth in
Section 41:
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(a) Changes in Paper Costs. If, in any twelve-month period during the term
of this Agreement that ends on an anniversary of the Effective Date,
Xxxxxxx experiences an increase in its direct material costs for paper
or packaging material, then Xxxxxxx may thereafter increase the price
shown in Exhibit B for each Product whose cost is affected by such
cost increase by no more than one half (1/2) of the direct cost
increase for each item. Xxxxxxx must clearly substantiate to Intuit
any annual increase in its direct paper or packaging material costs.
If in any twelve (12) month period during the Term of this Agreement
that ends on an anniversary of the Effective Date, Xxxxxxx experiences
a decrease in such costs, then Xxxxxxx shall thereafter decrease the
price shown in Exhibit B for each Product by one-half (1/2) of the
cost decrease for each item.
(b) Frequency. Xxxxxxx may not for any reason increase its price for any
Intuit Product more than once per each twelve-month period ending on
an anniversary of the Effective Date (i.e., Xxxxxxx cannot increase
its price for any Intuit Product more frequently than one (1) year
after the date of Harland's most recent previous price increase for
such Intuit Product). Further, except as set forth in Section 41,
Xxxxxxx may not increase any prices for any reason whatsoever prior to
the first anniversary of the Effective Date of this Agreement.
(c) Notification. Xxxxxxx must notify Intuit in writing of any proposed
price increase at least sixty (60) days in advance of such increase.
Any such price increase must be agreed upon in writing by Intuit,
which agreement will not be unreasonably withheld. During that sixty
(60) day period, Xxxxxxx will continue to honor its existing prices.
(d) Right to Audit. Intuit shall have the full right to audit any and all
documents, records or other paperwork of Harland's that it deems
necessary or appropriate in order to verify Harland's right to make
any price increase under this Agreement, including any agreements
Xxxxxxx may have with its suppliers. Xxxxxxx agrees to make such
information readily available to Intuit's auditors, and this
information will be kept confidential.
41. SHIPPING CHARGES. Harland's shipping charges to Customers will not exceed
Harland's actual cost of shipment for each individual Order. Intuit shall
have the right to audit Harland's shipping costs. Shipping charges are to
be added to the price of the Order and are to be paid by Intuit with the
exception of Orders that are the subject of Xxxxxxx errors or shipping
delays as provided in Sections 16, 20, 21, and 22 of this Agreement.
Notwithstanding the foregoing, any extra shipping charge for an Order
delivered to a residential customer (as determined by UPS or other carrier)
is not added to the price of that Order. Xxxxxxx and Intuit will continue
the current practice of estimating this charge which is to be paid by
Intuit to Xxxxxxx.
42. PAYMENT TERMS. Xxxxxxx will issue invoices to Intuit no more frequently
than once per week. Payment terms shall be net 30 days with a two percent
(2%) discount for early
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payment within ten (10) business days of Intuit's receipt of Harland's
invoice. Debit memos will have the same terms as invoices. Credit memos are
applicable to outstanding invoices or debit memos. In the event that Intuit
has a credit balance with Xxxxxxx for a period of at least thirty (30)
days, Intuit may elect to have Xxxxxxx pay Intuit such credit balance in
cash within ten (10) days after such thirty (30) day period by giving
Xxxxxxx written notice to that effect.
RENEWAL; TERMINATION AND RELATED TERMS
43. OPTION TO RENEW. The parties may mutually agree to renew this Agreement for
additional terms of two (2) years on the same terms and conditions as set
forth in this Agreement. Such agreement to renew shall be reflected in
writing.
44. INVENTORY BUYBACK. Upon cancellation or termination of this Agreement for
any reason other than for the fault of Xxxxxxx and/or if Intuit modifies
Intuit Base Stock resulting in obsolete Intuit Base Stock inventory, and/or
if Intuit changes packaging requirements, Xxxxxxx at its sole discretion
has the right to sell all or part of its then-existing inventory of unique
Intuit Base Stock, and/or its then existing inventory of unique Intuit
packaging material to Intuit for an amount equal to its book value. Intuit
has the right to review such records as it deems necessary or appropriate
to verify the book value of such inventory. In no event will Intuit be
responsible for paying for more than the greater of ninety (90) days worth
of base stock or packaging material inventory or 75,000 forms or units.
Ninety (90) days worth shall be determined as 25% of the previous twelve
months usage, provided the base stock in question has been offered during
the previous twelve (12) month period. Intuit shall be responsible for all
such inventory if it was initially offered during the previous twelve (12)
month period.
Notwithstanding the foregoing, Intuit shall not be obligated to purchase
any inventory that (1) is not in good and usable condition such that it
could be used for its intended purposes without further preparation or
expense, or (2) Xxxxxxx orders after receiving notice of termination of
this Agreement or notice of modifications to the Intuit Base Stock. Any
stock that has been purchased by Xxxxxxx pursuant to mutually agreed upon
new product pilot tests shall be specifically excluded from Intuit's
buyback obligation. The costs of such material shall be covered under
separate agreements.
45. TERMINATION.
(a) Grounds for Termination. Either party shall have the right to
terminate this Agreement:
(i) sixty (60) days after giving the other party written notice of
termination of this Agreement ("TERMINATION NOTICE") if the other
party has materially breached this Agreement and fails to cure
each such material breach of this Agreement described in the
Termination Notice within sixty (60) days
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after the Termination Notice has been given (within the meaning
of Section 52 hereof) to such other party;
(ii) immediately, if the other party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors; or
(iii) immediately, if the other party becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation or composition
or other arrangement for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of
its initial filing.
In addition, Intuit shall have the right to terminate this Agreement
on ninety (90) days prior written notice to Xxxxxxx at any time
following the second anniversary of the Effective Date in the event
that: (1) new technology is available that significantly impacts the
marketplace in which Xxxxxxx operates under this Agreement and such
technology has not been adequately adopted by Xxxxxxx for use in
fulfilling Intuit's Orders; or (2) Xxxxxxx is unable to scale the
color/semi-custom/custom business significantly enough to meet the
volumes demanded by Intuit's Customers.
(b) Orders After Termination Notice. In the event that any notice or
termination of this Agreement is given in accordance with this
Section, Xxxxxxx will continue to process any Customer Orders received
by Xxxxxxx prior to the effective date of termination; provided that
in the event of a dispute regarding nonpayment by Intuit, Intuit
deposits the disputed amount in an interest bearing escrow account
with a commercial bank and provides written notice of same to Xxxxxxx.
(c) Effect of Termination or Expiration. For a period of two (2) years
after the date of termination or expiration of this Agreement for any
reason, Xxxxxxx will make available to Intuit for inspection and
copying all books and records of Xxxxxxx and its affiliates that
pertain to Harland's performance and compliance with its obligations,
warranties and representations under this Agreement (other than those
books and records required to be destroyed by Xxxxxxx under this
paragraph (c)). In addition, upon termination or expiration of this
Agreement Xxxxxxx and its affiliates (i) will cease using any Intuit
trademark, service xxxx, trade name, logo or designation, and (ii)
will forward all Customer information (including, but not limited to,
all Customer Logos in the format specified by Intuit) and all Bank
Files, and all copies thereof, in its/their possession to Intuit
within two (2) weeks after termination of this Agreement pursuant to
this Section. After forwarding all such materials to Intuit, Xxxxxxx
agrees to destroy all information related to Intuit Customers that is
in the possession of Xxxxxxx or any of its affiliates. Intuit shall
use such information of Xxxxxxx that it inspects or audits solely for
the purpose of determining Harland's performance and compliance with
its obligations,
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warranties, and representations under this Agreement and shall
otherwise keep such information confidential.
(d) No Damages for Termination. REGARDLESS OF WHETHER OR NOT ANY REMEDY OF
ANY PARTY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, NEITHER PARTY WILL
BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT
LIMITATION INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF
THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS
TERMS. NEITHER PARTY WILL BE LIABLE TO THE OTHER ON ACCOUNT OF
TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS
TERMS FOR ANY REIMBURSEMENT OR DAMAGES FOR THE LOSS OF GOODWILL, LOSS
OF ANY PROFITS OR ANTICIPATED INCOME, OR ON ACCOUNT OF ANY
EXPENDITURES, INVESTMENTS, LEASES OR OTHER COMMITMENTS MADE BY EITHER
PARTY OR FOR ANY OTHER REASON WHATSOEVER BASED UPON, OR ARISING FOR
ANY REASON OUT OF, SUCH EXPIRATION OR TERMINATION.
(e) Survival. Notwithstanding the termination or expiration of this
Agreement, the following provisions of this Agreement shall survive
and continue to bind the parties following the termination of this
Agreement: Sections 5, 6, 7, 8, 9, 10, 20 (with respect to the
shipment of Orders pending at the date of termination or expiration of
this Agreement), 32, and 46.
(f) Special Remedies for Non-Performance. In the event that Xxxxxxx
materially breaches any of the provisions under GENERAL TERMS,
PRODUCTION, PRODUCTS, and PRICING (i.e. Sections 1 through 42 of this
Agreement), Xxxxxxx will be given 60 days to remedy the
non-performance. If after this 60 day period, Xxxxxxx fails to cure
such material breach, then Intuit, at its sole option, may, in lieu of
terminating this Agreement as provided above:
(i) terminate the exclusivity provision of Section 4 of this
Agreement; and/or
(ii) elect to reduce the remaining Term of this Agreement to one (1)
year from the date that Intuit gives Xxxxxxx written notice of
Intuit's election to reduce the remaining Term of this Agreement
pursuant to this Section (the "REDUCTION NOTICE"), in which case
this Agreement will automatically terminate on the first
anniversary of the date that Intuit gives Xxxxxxx the Reduction
Notice.
46. NO CONSEQUENTIAL DAMAGES. Neither party shall be responsible to the other
for any claims for any special, incidental, or consequential damage,
including lost profits, or loss arising from breach of warranty or any
other default on the part of such party.
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MISCELLANEOUS PROVISIONS
47. YEAR 2000 WARRANTY. Xxxxxxx represents and warrants to Intuit that
Harland's services covered by this Agreement will not at any time incur a
material loss of performance as a result of the century date change in the
year 2000 or as a result of the year 2000 being a leap year.
Notwithstanding the terms and conditions of Section 45(a)(i), the notice
and cure period for a material breach of the foregoing will be thirty (30)
days.
48. MODIFICATIONS TO THIS AGREEMENT. No modification or amendment to this
Agreement shall be effective unless it is executed in writing by both
parties.
49. ASSIGNMENT. This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns. Xxxxxxx may not assign this
Agreement, in whole or in part, without Intuit's written consent. Any
attempt by Xxxxxxx to assign this Agreement without such consent will be
null and void. During the Term of this Agreement Xxxxxxx agrees not to sell
its interest in all or substantially all of the assets required to perform
its obligations under this Agreement without the prior written consent of
Intuit. The parties agree that, in the event of Harland's breach of the
provisions of this paragraph: (i) Intuit will have the right to terminate
this Agreement without penalty at any time following such breach; and (ii)
Intuit will not have the right to prevent a corporate-wide sale of
Harland's assets to a third party.
50. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the internal laws of the State of California applicable to
agreements entered into, and to be performed entirely, within California
between California residents, without regard to principles of choice of law
or conflict of laws.
51. SEVERABILITY. If any provision of this Agreement is found to be invalid,
unlawful or unenforceable, then, if possible, that provision will be
modified to the extent possible to reflect the parties intentions and
remain valid, lawful, and enforceable, rather than being voided, and
whether or not such provisions is voided or so modified, the other
provisions of this Agreement will nevertheless remain in full force and
effect.
52. NOTICES. All notices under this Agreement will be deemed to have been given
for purposes of this Agreement when such notice is (i) delivered
personally, (ii) sent by confirmed facsimile transmission, or (iii) sent by
certified or registered U.S. mail or nationally-recognized express courier,
return receipt requested, to the address of the receiving party shown below
or to such other address for notice under this Agreement as may otherwise
be specified by either party to the other by a written notice given in
accordance with the provisions of this Section:
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If to Intuit: Intuit Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Vice President and General Manager,
Financial Supplies Group
Fax: (000) 000-0000
with a copy to: Intuit Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: (650) ____________
If to Xxxxxxx: Xxxx X. Xxxxxxx Company
000 X. Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to: Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
Notwithstanding the foregoing, the above provisions of this Section shall
not apply to Intuit's notification of Order errors to Xxxxxxx, which may be
given by Intuit by way of telephone, facsimile transmission, electronic
transmission or electronic mail as indicated in Section 21 of this
Agreement.
53. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will
have the power to bind the other or incur obligations on the other's behalf
without the other's prior written consent.
54. WAIVER. No failure of either party to exercise or enforce any of its rights
under this Agreement will act as a waiver of such rights. No waiver of any
rights hereunder will be effective unless set forth in a writing signed by
the party granting such waiver.
55. ENTIRE AGREEMENT. This Agreement together with its Exhibits and Appendix
constitutes the complete and exclusive agreement and understanding between
the parties with respect to the subject matter hereof, and this Agreement
shall supersede and replace any and all prior agreements, communications,
and understandings (both written and oral) regarding such subject matter,
including the Prior Agreement.
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IN WITNESS WHEREOF, Intuit and Xxxxxxx have executed and entered into this
Agreement by their duly authorized representatives effective as of January 1,
2000.
XXXX X. XXXXXXX COMPANY INTUIT INC.
By: By:
---------------------------------- -------------------------------------
Name: Name:
-------------------------------- -----------------------------------
Title: Title:
------------------------------- ----------------------------------
Date: Date:
-------------------------------- -----------------------------------
Attachments:
Appendix 1: Certain Definitions
Exhibit A: Service Charges
Exhibit B: Manufacturing Prices
Exhibit C: Bank File Letter Agreement
Exhibit D: Trademark Usage Requirements
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APPENDIX 1
CERTAIN DEFINITIONS
For purposes of this Supply Agreement, the following terms are defined as
indicated below.
Bank The term "BANK" means the bank, credit union, savings and
loan or any other financial institution at which the
Customer has a checking account for which the Customer is
purchasing checks supplied under this Agreement.
Bank File The term "BANK FILE" means an electronic database of
information owned by Intuit and maintained by Xxxxxxx for
the benefit of Intuit, as such may be improved, enhanced and
expanded from time to time, that will enable Intuit to take
Orders by phone or electronically directly from a Customer
without the need for a sample check or MICR specification
sheet. The Bank File is also necessary to enable Intuit to
electronically transmit its Orders pursuant to this
Agreement. The purpose of the Bank File database is (1) to
insure that shipped orders contain valid and correct
financial institution information regarding the Customer(s),
including valid account number, sequential position, and the
transit/routing number, and correct fractional number and
bank address; and (2) to validate this information before
orders are accepted, thereby improving the accuracy of
telephone and electronic customer Orders.
Business Day The term "BUSINESS DAY" means a 24-hour period during a
Monday, Tuesday, Wednesday, Thursday, or Friday; provided
that Business Days do not include: (a) any holiday
recognized by the federal government of the United States of
America, or (b) any Saturday or Sunday.
Cross-Shipment The term "CROSS-SHIPMENT" means when Xxxxxxx ships an Order
to a person other than the Customer for whom such Order was
intended.
Customer The term "CUSTOMER" refers to an Intuit customer.
Direct-to-Plate The term "DIRECT-TO-PLATE" means the process and technology
whereby Intuit and Xxxxxxx work together to achieve the
electronic transmission of pre-formatted Customer Orders
directly from Intuit to Xxxxxxx. By use of the electronic
transmission of Orders, Xxxxxxx will eliminate the need to
perform data entry, auditing, and editing of Customer
Orders, thus reducing Harland's operating costs. Historical
reference is made to the term "plate" which is used on an
offset printing press.
Intuit FSG The term "INTUIT FSG" means the Intuit business unit that
has responsibility for the supply of software-compatible
checks and forms to Customers.
Intuit Base The term "INTUIT BASE STOCK" means the Intuit-specified
Stock pre-printed paper upon which individual customer information
is imprinted to produce personalized checks and invoices.
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Intuit Product or The term "INTUIT PRODUCT" or "PRODUCT" means any Intuit FSG
Product product, including but not limited to Exclusive
Intuit Products, that Intuit purchases from Xxxxxxx pursuant
to this Agreement.
Standard The term "STANDARD PRODUCT" means any "EXCLUSIVE INTUIT
Product PRODUCTS" that do not include custom features or unusual
requirements, including but not limited to new custom logo,
color imprint, new phantom logo, back-printing, additional
color).
Exclusive Intuit The term "EXCLUSIVE INTUIT PRODUCTS" means the following
Product products provided by Intuit FSG to Customers as of the
Effective Date: (a) standard, semi-custom, and custom
software compatible forms and checks; (b) manual checks; (c)
pre-inked stamps; and (d) imprinted envelopes.
Order The term "ORDER" means an Intuit Customer order for the
purchase of Intuit Products. Orders may be transmitted by
Intuit to Xxxxxxx electronically (via modem or phone line),
by facsimile, or by mail.
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EXHIBIT A
SERVICE CHARGES
----------------------------------------------------------------------------------------------------------
PRICE
SERVICE DESCRIPTION PRICE BASIS
----------------------------------------------------------------------------------------------------------
Order Clarification Research and resolve incomplete or ambiguous order $8.75 Per Order
information, including direct interaction with Intuit's
customer.
Standard Data Entry Edit paper orders submitted by Intuit's customers, $4.78 Per Order
process customer payments, and input data into
production system.
State "0" Data Entry Enter all information required to produce non-standard
orders. $4.04 Per Order
State "10" Data Entry Review and edit State 10 orders originating external to $1.96 Per Order
Xxxxxxx.
Customer Rush Customer paid rush services $15.00 Per Item
Intuit Rush Non-customer paid rush services $7.00 Per Item
Special clean-up Clean-up low quality logo artwork, provide custom $26.25 Per Item
design.
Accounting voucher Provide proof of payment for non FSG-supplied products No charge Per Order
processing ordered in tandem with printed products.
Extended Call Provide customer service telephone coverage on weekends, $35.00 Per Customer
Center Support and before 5AM and after 6PM Pacific Time on business Service
days. Representative
Hour
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EXHIBIT B
MANUFACTURING PRICES
CHECKS
----------------------------------------------------------------------------------------------
STANDARD STANDARD STANDARD VOUCHER VOUCHER VOUCHER WALLET 1
1-PART 2-PART 3-PART 1-PART 2-PART 3-PART PART
----------------------------------------------------------------------------------------------
LASER
----------------------------------------------------------------------------------------------
250 $ 12.58 na na $ 14.78 $ 23.30 $ 34.50 $ 13.04
500 15.00 na na 21.84 38.91 57.93 15.10
1,000 19.92 na na 35.98 71.44 106.14 19.85
2,000 32.52 na na 65.59 135.18 202.54 30.85
3,000 44.28 na na 93.87 198.92 298.95 42.07
4,000 56.04 na na 123.48 264.00 395.36 53.22
5,000 69.13 na na 153.10 327.74 491.76 65.70
Add'l 1000 12.83 na na 29.02 62.47 94.48 12.23
----------------------------------------------------------------------------------------------
CONTINUOUS
----------------------------------------------------------------------------------------------
250 $ 13.35 $ 18.27 na $ 14.40 $ 21.88 $ 26.32 $ 13.22
500 17.77 26.82 na 20.37 33.46 42.25 15.34
1,000 26.61 44.38 na 31.68 57.60 76.41 21.91
2,000 44.29 79.51 na 54.30 107.21 143.41 34.85
3,000 61.96 114.64 na 78.26 155.48 210.40 47.79
4,000 79.64 151.10 na 100.89 205.09 277.40 60.73
5,000 97.32 186.23 na 123.51 254.70 344.39 73.67
Add'l 1000 17.32 34.43 na 22.17 48.61 65.66 12.68
----------------------------------------------------------------------------------------------
FORMS AND DEPOSITS
----------------------------------------------------------------------------------------------------------
FORM 1 FORM 2 FORM 3 FORM 4 DEPOSIT DEPOSIT DEPOSIT
PART PART PART PART 1-PART 2-PART 3-PART
----------------------------------------------------------------------------------------------------------
LASER
----------------------------------------------------------------------------------------------------------
250 $ 14.98 $ 24.64 $ 31.42 $ 38.84 $ 13.84 $ 20.40 $ 30.58
500 21.96 41.11 54.73 70.91 20.95 32.13 47.86
1,000 35.92 75.40 102.68 135.04 31.79 57.36 84.38
2,000 65.18 142.63 198.57 261.97 51.28 103.75 152.30
3,000 93.11 209.87 294.46 388.90 70.77 150.14 220.22
4,000 122.37 278.44 390.36 517.17 90.26 196.53 288.14
5,000 151.63 345.67 486.25 644.10 109.75 242.92 356.06
Add'l 1000 28.67 65.89 93.98 124.39 19.49 46.39 67.92
----------------------------------------------------------------------------------------------------------
CONTINUOUS BOOK
----------------------------------------------------------------------------------------------------------
250 $ 17.73 $ 27.33 $ 34.43 $ 42.32 $ 6.39 $ 12.37 $ 16.07 200
500 26.52 45.52 59.55 74.39 12.78 24.74 32.14 400
1,000 44.10 81.90 109.80 138.51 19.17 37.11 48.21 600
2,000 79.26 155.98 211.62 268.10 25.56 49.48 64.28 800
3,000 115.75 228.74 313.44 397.69 31.95 61.85 80.35 1,000
4,000 150.91 302.83 415.26 527.27 38.34 74.22 96.42 1,200
5,000 186.07 376.92 515.76 656.86 44.73 86.59 112.49 1,400
Add'l 1000 34.46 72.61 98.48 126.99 6.39 12.37 16.07 Add'l 200
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EXHIBIT B - CONTINUED
MANUFACTURING PRICES
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ENVELOPES STMT
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STANDARD FORM WALLET
SINGLE REMITTAN DOUBLE DOUBLE DOUBLE STANDARD FORM SELF REMIT-
WINDOW CE WINDOW WINDOW WINDOW SELF-SEAL SEAL TANCE
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IMPRINTED ENVELOPES
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250 $ 17.08 $ 23.93 na na na na na $ 16.41
500 23.89 33.58 na na na na na $ 24.83
1,000 38.20 52.67 na na na na na $ 41.65
2,000 65.03 87.52 na na na na na $ 76.64
3,000 91.87 122.36 na na na na na $ 110.30
4,000 118.70 157.21 na na na na na $ 145.29
5,000 145.53 192.05 na na na na na $ 180.28
Add'l 1000 26.29 34.15 na na na na na $ 34.40
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PICK AND PACK ENVELOPES(*)
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250 na na $ 2.50 $ 2.50 $ 2.50 $ 2.50 $ 2.50
500 na na 2.50 2.50 2.50 2.50 2.50
1,000 na na 3.75 3.75 3.75 3.75 3.75
2,000 na na 4.00 4.00 4.00 4.00 4.00
3,000 na na 5.25 5.25 5.25 5.25 5.25
4,000 na na 6.50 6.50 6.50 6.50 6.50
5,000 na na 7.75 7.75 7.75 7.75 7.75
Add'l 1000 na na 1.25 1.25 1.25 1.25 1.25
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(*) These are not Exclusive Intuit Products
-----------------------
OFFICE AND AWAY
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Binder 27.25
250 13.10
500 17.73
1000 25.37
2000 39.88
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STAMPS AND LOGOS
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PRICE
PRODUCT DESCRIPTION PRICE BASIS
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Pre-inked 1-color Endorsement, return address, fax cover, and standard stamp. $7.50 Per Item
stamp Price includes First Class mail delivery.
Pre-inked 2-color Monogram/return address stamp in 2 colors. Price includes $8.76 Per Item
stamp First Class mail delivery.
Pre-inked signature Customer signature stamp. Price includes scanning signature, $17.93 Per Item
stamp cleaning up, and First Class mail delivery.
No Per Item
Standard Logo Add standard logo to personalization. charge
New Custom Logo Scan customer-provided art, clean up, and position in $10.50 Per Item
personalization.
Custom Logo Reorder Reuse previously scanned custom logo. No Per Item
charge
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EXHIBIT C
Bank File Letter Agreement
[Attach 10/20/97 letter from Xxxx Xxxxx to Xxxxxx Xxxxxx]
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EXHIBIT D
Trademark Usage Requirements
A. INTUIT "HEAD" LOGO DESIGN USAGE
Xxxxxxx may display the Intuit "Head" Logo Design in accordance with the
guidelines and limitations set forth herein and in the SUPPLY AGREEMENT between
Intuit and Xxxxxxx ("SUPPLY AGREEMENT" or "AGREEMENT"). However, Intuit requires
that Xxxxxxx obtain only original digital or camera-ready artwork directly from
Intuit. No resampling or other attempted duplication is allowed and no
alterations, modifications, cropping or additions to the Logo are permitted. In
all printed materials that involve any graphics and/or color, the Intuit Logo
should be presented in color. The Intuit Logo will only be displayed in white
background with red lettering or red background with white letters as supplied.
Black & white can only be used in approved materials that are less than 4-color.
The red used can only be PMS 186 as supplied. The typeface for the Intuit Logo
will always be only that typeface supplied by Intuit. The Logo should always be
used as received from Intuit. Original logo art supplied by Intuit can be
enlarged or reduced in size, but must be done in exact proportion to the
original height and width. The Intuit Logo should always have the
"(R)" registration symbol near the upper right corner or "shoulder" portion of
the xxxx.
The Intuit Logo must only appear in a standard size for the allowed Intuit
Products supplied by Xxxxxxx, such size to be pre-approved by Intuit. The Intuit
Logo must always appear by itself. The Logo will not be "violated" or touched by
any other text or graphics in any way, and there must be a border of space of at
least 15 percent of the total height of the stylized letter "I" surrounding the
Intuit Logo on all sides in every instance the Logo appears.
B. MARKETING AND BRAND POSITIONING
Any materials that use the Intuit Logo must (in the sole opinion of Intuit) be
consistent with the following brand attributes of the Intuit product line:
easy-to-use, friendly, trusted, financial, good value and very high quality.
Colors, fonts, graphics, etc. that are used in the same materials as the Intuit
Logo should reflect those same brand attributes without copying the overall
Intuit Product Trade Dress that appears on US and Canadian packaging for Quicken
and other products and on other Intuit-created materials unless Xxxxxxx is
specifically licensed to use the Intuit Trade Dress. Intuit must review all
marketing materials and packaging and may provide input about how and whether
said materials conform to the brand character. If marketing materials or
packaging are inconsistent in the sole opinion of Intuit, Intuit can require
that such materials be changed prior to any public distribution.
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C. APPROPRIATE SYMBOLS AND LEGENDS
The Intuit Logo is a registered trademark and must appear with the "(R)" symbol
placed on the right "shoulder" of the xxxx (i.e., directly next to the xxxx in
the upper right). Thus, the correct symbol placement is as follows: Intuit(R).
The symbol must appear in every iteration of the Logo, but may be omitted for
convenience after the first mention in prose, plain-text materials.
If required in the SUPPLY AGREEMENT, the appropriate ownership legend must be
included in the "legal notices" section of any materials in which the Intuit
Logo or Xxxx is displayed. This legend must read as follows: "Intuit and the
Intuit Logo are a trademarks of Intuit Inc., registered in the United States and
other countries." In packaging, advertising and promotional materials, the
legend is typically placed at the bottom of the box, ad or layout. The legend
may appear in small type, but must still be legible.
D. NO SIMILAR MARKS.
Xxxxxxx may not adopt, use or register any other marks that appear to be related
to or are similar to any Intuit Marks. Any new marks created or adopted by
Xxxxxxx, if such marks are for products or services marketed in the same general
trade channels as the Intuit Products, must be pre-approved in writing by the
Authorized Representative of Intuit.
E. ADDITIONAL RESTRICTIONS
The permission to display the Intuit Logo is a non-exclusive, non-transferable,
non-assignable permission that extends only to the Territory, only as defined in
the Agreement, only for the purpose of performing Harland's obligations to
Intuit under the Agreement, and only for the Term of the Agreement.
Xxxxxxx is not permitted to use the Intuit Logo, or any other logo owned by
Intuit, on Harland's own product lines or to disparage Intuit, its subsidiaries,
products, or services, or for promotional goods (like shirts, pens, etc.) or in
any way which, in Intuit's reasonable judgment, may diminish or otherwise damage
Intuit's goodwill in the Intuit Logo or other Intuit-owned logos, including but
not limited to uses that could be deemed to be obscene, violent or otherwise in
poor taste or unlawful, or which purpose is to encourage unlawful activities.
Intuit reserves the right to object to unfair uses or misuses of the Intuit
Logo, other Intuit-owned marks or other violations of applicable law.
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