1
EXHIBIT 10.13
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. Sections 200.80(b)(4), 200.83
and 230.406
PRODUCT INTEGRATION AND MARKETING AGREEMENT
THIS PRODUCT INTEGRATION AND MARKETING AGREEMENT is made effective as of
November 6, 1998 (the "EFFECTIVE DATE") by GENERAL MAGIC, INC., a Delaware
corporation having a place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000 ("MAGIC"), and INTUIT INC., a Delaware corporation having a
place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
("INTUIT"). Magic and Intuit sometimes are referred to collectively as the
"PARTIES" and individually as a "PARTY."
RECITALS
A. Magic is engaged in the business of, among other things, designing,
developing, and providing a network service known as "Portico," which includes
features such as individual calendar and contact information management and
communication services and which may be accessed either through the World Wide
Web or through the telephone by means of a voice user interface that uses
state-of-the-art speech recognition technology.
B. Intuit is engaged in the business of, among other things, developing
and providing individual financial information and management products and
services including the products and services available through its "Xxxxxxx.xxx"
web site.
C. Magic and Intuit desire to enter into a long-term relationship
whereby the Parties will work together to integrate certain features of Magic's
Portico service with Intuit's personal finance technology and the "Xxxxxxx.xxx"
web site and to make the benefits of both Parties' technology available to both
Parties' customers. The Parties expect that there will be three distinct aspects
of their relationship: (1) Intuit will promote, and Magic will provide, a [**]
(based on Portico technology) to users of the "Xxxxxxx.xxx" web site that allows
such users to access and act upon financial information available on the web
site through the telephone; (2) Intuit's personal finance technology will be
incorporated into the Portico service and offered to Portico customers; and (3)
Intuit will promote to users of this [**] Portico service.
AGREEMENT
ARTICLE I -- DEFINITIONS
As used in this Agreement:
"API" means an applications programmer's interface.
"BASE FEATURES" means the personal finance features of the Portico
Service to be designed and developed by Magic based upon and incorporating the
Intuit Personal Finance Technology and to be offered to Portico Subscribers as a
[**] so that these subscribers will have access to the applicable portions of
the Intuit Personal Finance Content and Personal Financial Information.
"DERIVATIVES" means (i) for copyrightable or copyrighted material, any
translation, abridgment, revision, or other form in which such material may be
recast, transformed, or adapted; (ii) for patentable or patented material, any
improvement thereon; and (iii) for material which is protected by trade secret,
any new material derived from such existing trade secret material, including new
material which may be protected by copyright, patent and/or trade secret.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
1
2
"EXCLUSIVITY PERIOD" means the period beginning on the Effective Date
and expiring the earlier of (a) [**] after the Effective Date or (b) thirty (30)
days after Intuit notifies Magic in writing that Magic is not in compliance with
the Magic Exclusivity Criteria and Magic fails to correct such non-compliance
within the thirty (30) day period.
"INTELLECTUAL PROPERTY RIGHTS" means all current and future worldwide
copyrights, trade secrets, patents and other patent rights, utility models, mask
work rights, moral rights, trademarks, trade names, service marks, and all other
intellectual property rights, including all applications and registrations with
respect thereto.
"INTUIT MARKS" means the trademarks, service marks, trade names, and
logos of Intuit listed in EXHIBIT A, as such list may be updated from time to
time by Intuit.
"INTUIT PERSONAL FINANCE CONTENT" means the images and information,
including stock quotes and ticker-based news, designated by Intuit for inclusion
in the Portico Service but excluding Personal Financial Information.
"INTUIT PERSONAL FINANCE TECHNOLOGY" means the software, programming
code, API's, and other technology designated by Intuit and provided to Magic to
allow the Portico Service to make available the Intuit Personal Finance Content
and Personal Financial Information.
"INTUIT SITES" means Intuit or Quicken branded or co-branded world wide
web sites or online services, including the Quicken Web Site, and any product or
service which includes access to the world wide web.
"LAUNCH DATE" means the first date on which the agreed-upon initial
Personal Finance Feature Set is made commercially available to Portico
Subscribers.
"LINK" means a hypertext link, in a textual or graphical form, from one
website to another website.
"MAGIC EXCLUSIVITY CRITERIA" means the following Magic requirements: (a)
the Xxxxxxx.Xxx Voice Service is commercially released by the applicable Target
Date, (b) the Xxxxxxx.Xxx Voice Service must be competitive with other similar
technologies in terms of [**], (c) for the number of people using a voice
activated service (similar to Portico) for retrieving information (virtual
assistant), Magic is [**], and (d) Magic must not be in breach of this
Agreement.
"MAGIC MARKS" means the trademarks, service marks, trade names, and
logos of Magic listed in EXHIBIT B, as such list may be updated from time to
time by Magic.
"PERSONAL FINANCIAL INFORMATION" means an individual's unique personal
financial information including portfolio holdings, banking information, xxxx
presentment, and transaction data (e.g., buy and sell orders) stored in or
accessible through the Quicken Web Site or the Portico Service, as the case may
be.
"PERSONAL FINANCE FEATURE SET" means the [**] and [**].
"PORTICO SERVICE" means Magic's proprietary network service as described
above, which Magic may market directly or through resellers, in whole or in
functional subsets, through multiple levels of distribution, which may be
bundled with other goods and services by Magic or third parties, and which may
be sublicensed directly or indirectly to enterprise licensees for internal
deployment by such licensees.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
2
3
"PORTICO SERVICE GUI" means the graphic user interface for the Portico
Service, as displayed on the Web Site whose URL address, as of the Effective
Date, is xxxx://xxx.xxxxxxx.xxx (it being understood that this user interface
will be modified by Magic from time to time, pursuant to this Agreement and
otherwise).
"PORTICO SERVICE VUI" means the voice user interface for the Portico
Service based on and incorporating Magic's proprietary speech recognition
technology (it being understood that this user interface will be modified by
Magic from time to time).
"PORTICO SUBSCRIBER" means any individual who has an account with Magic
or any third party through which such individual receives all or any portion of
the Portico Service.
"PORTICO TECHNOLOGY" means the software, programming code, API's, and
other technology used by Magic to develop and provide the Portico Service.
[**] means the [**] to be designed and developed by Magic based upon and
incorporating [**] so that these subscribers will have access to the applicable
portions of the Intuit Personal Finance Content and Personal Financial
Information.
"QUICKEN WEB SITE" means the web site whose home page is currently (as
of the Effective Date) located at the URL "xxxx://xxx.xxxxxxx.xxx", as such web
site may be modified and updated by Intuit from time to time.
"XXXXXXX.XXX VOICE SERVICE" means a service to be designed and developed
by Magic based upon the Portico Technology and incorporating certain features of
the Portico Service and to be offered to users of the Quicken Web Site and to
any other Intuit Site designated by Intuit so that such users can access the
Intuit Personal Finance Content and their Personal Financial Information through
the telephone.
"TARGET DATES" means the target dates listed in EXHIBIT C for completion
of various aspects of the work to be undertaken by the Parties pursuant to this
Agreement, as such list may be modified and updated from time to time by written
agreement of the Parties.
ARTICLE II - XXXXXXX.XXX VOICE SERVICE
2.1 DESIGN AND DEVELOPMENT. Subject to SECTION 2.2 (b), with reasonable
assistance and input from Intuit regarding the Intuit Personal Finance
Technology, Magic will use commercially reasonable efforts to design and develop
the Xxxxxxx.Xxx Voice Service by the applicable Target Dates. It is understood
and agreed that Magic cannot guarantee the results or success of these efforts,
the Target Dates are subject to change as circumstances warrant, and Magic will
have no liability to Intuit for any change in the Target Dates, or any failure
to complete any portion of this work by the applicable Target Date, as long as
Magic is using good faith, commercially reasonable efforts to fulfill its
responsibilities in performing this work. This work is expected to include,
among other things, (a) identification of the features of the Portico Service to
be included in the Xxxxxxx.Xxx Voice Service; (b) the identification of the
Intuit Personal Financial Content and Personal Financial Information to be
included in the Xxxxxxx.Xxx Voice Service; (c) the development of technical and
functional specifications for such features, based on the specifications for the
equivalent features of the Portico Service, to be attached hereto as EXHIBIT D
when completed; (d) acquisition or development, and implementation, of the
hardware, software, and other technology needed to provide the
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
3
4
Xxxxxxx.Xxx Voice Service, which may include modifications to the
Portico Technology and interfaces between the Quicken Web Site and the computers
and software used by Magic to provide the Xxxxxxx.Xxx Voice Service; and (e)
internal and external (i.e., at customer beta sites) evaluation and testing of
the Xxxxxxx.Xxx Voice Service until both Parties are satisfied with the quality
and reliability of the Xxxxxxx.Xxx Voice Service such that the Xxxxxxx.Xxx Voice
Service is suitable for commercial release.
2.2 INTUIT ASSISTANCE.
(a) Intuit will assist Magic regarding the Intuit Personal Finance
Technology, as Magic may reasonably request from time to time, in the design and
development of the Xxxxxxx.Xxx Voice Service. Without limiting the generality of
the foregoing, and except as specified in CLAUSE (b) below, Intuit will (i) make
available to Magic the facilities and personnel of Intuit or its agents or
contractors, as Magic may reasonably request and which is necessary for Magic to
fulfill Magic's development obligations under this Agreement ("INTUIT QVS
ASSISTANCE"), and (ii) deliver to Magic the APIs, software, and other technology
used in connection with the Quicken Web Site, as Magic may reasonably request
and as mutually agreed to by the Parties (collectively, the "QUICKEN
DELIVERABLES") that are necessary for Magic to fulfill its development
obligations under this Agreement.
(b) In the event Intuit elects not to provide the Intuit QVS
Assistance as specified in CLAUSE (a) above, Magic shall not be obligated to
include the feature in the Xxxxxxx.Xxx Voice Service which is dependent upon
receiving such assistance from Intuit and Intuit shall have no further
obligation with respect thereto.
(c) Magic will have a non-exclusive, non-transferable, [**]
license during the term of this Agreement to use and reproduce the Quicken
Deliverables, and upon receiving Intuit's consent, may modify and create
Derivatives, solely for the purpose of performing the work described in SECTION
2.1. Magic acknowledges that notwithstanding anything to the contrary in the
Agreement, Intuit shall not be obligated to provide any support for any
modifications or Derivatives to the Quicken Deliverables made by Magic. The
Quicken Deliverables will be considered Confidential Information of Intuit
subject to the provisions of SECTION 5.3. In addition, if Intuit acquires
ownership of any Voice Service Upgrades pursuant to SECTION 5.4(c), Intuit
grants to Magic a non-exclusive, non-transferable, [**] license during
the term of this Agreement to use, reproduce and perform such Voice Service
Upgrades as part of the Xxxxxxx.Xxx Voice Service.
2.3 ROLL-OUT OF XXXXXXX.XXX VOICE SERVICE. There will be, [**] as
specified in SECTION 2.7 (b) below is sufficient to cover
the cost of the [**] and [**] Users of the [**], which would be [**]. Intuit
will establish a Link from pages/sections of the Quicken Web Site to one or more
web pages through which users will be able to get a passcode (customizable for
each individual user) for use with the Introductory QVS Version and initiate use
of the
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
4
5
Introductory QVS Version. The specific appearance and placement of each Link
will be determined by Intuit.
2.4 [**]. In order to [**]. Magic will be permitted to [**], provided
that Magic obtains Intuit's approval (which will not be unreasonably withheld)
before entering into any binding agreement [**]. Such [**]. The Parties shall
mutually agree to the [**] in the Introductory QVS Version.
2.5 BRANDING, PROMOTION. The Xxxxxxx.Xxx Voice Service will be marketed
under present or future Intuit Marks. When the Parties agree that the
Xxxxxxx.Xxx Voice Service is or soon will be ready for commercial release,
Intuit will promote the Xxxxxxx.Xxx Voice Service on the Quicken Web Site in a
manner deemed reasonable by Intuit.
2.6 PROVISION OF XXXXXXX.XXX VOICE SERVICE. When the Parties agree that
the Xxxxxxx.Xxx Voice Service is ready for commercial release, Magic will begin
providing the Xxxxxxx.Xxx Voice Service. Magic shall make available and manage
the Xxxxxxx.Xxx Voice Service throughout the term of this Agreement. As between
Magic and Intuit, Magic will have sole responsibility for customer service and
support of the Introductory QVS Version (it being understood that [**] and the
Full QVS Version (it being understood that Magic shall provide the same level of
support to users of the Full QVS Version as it provides to users of the Portico
Service). Intuit will have sole responsibility for operation of the Quicken Web
Site and will [**] Magic to resolve customer questions and problems solely
attributable to the content or operation of the Quicken Web Site. Magic will
also be solely responsible for making arrangements with, and paying the fees of,
one or more telephone service providers in connection with the Xxxxxxx.Xxx Voice
Service.
2.7 FEES AND PAYMENT
(a) DEVELOPMENT COSTS. Magic shall be responsible for [**]
associated with the design and development of the Xxxxxxx.Xxx Voice Service,
except that Intuit will be responsible for [**] it incurs in providing
assistance and support to Magic pursuant to SECTION 2.2 and SECTION 2.6.
(b) COST SHARING -- INTRODUCTORY QVS VERSION. [**] of providing
the Introductory QVS Version of the Xxxxxxx.Xxx Voice Service to users as
follows. Such costs are limited to the costs of operating the Introductory QVS
Version (which shall in no event exceed [**] and [**] set forth in SUBSECTION
5.1 below ("INTRODUCTORY QVS COSTS"). [**] All payments received by Magic [**]
of the [**], as described in SECTION 2.4, will be applied first toward the [**],
second [**], and then any remaining amounts shall be retained by Magic and shall
be applied to any [**]. Any remaining Introductory QVS
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
5
6
Costs [**] as described in the preceding sentence shall be [**] split as
follows: (i) [**] will be responsible for [**] of the remaining Introductory QVS
Costs, and (ii) with respect to [**] ("[**]"), [**]. Any portion of [**] that is
not recovered in any quarter (either from [**] described in the preceding
sentence) will carry forward to the next quarter. In no event will [**] be
required to (a) pay to [**] any portion of [**] not recovered either from
advertising and sponsorship revenue or from deductions from payments made to
[**], or (b) refund to [**] any payments made to [**] pursuant to SECTION 2.7(c)
and SECTION 4.3.
(c) REVENUE SHARING - FULL QVS VERSION. Magic will determine, after
consultation with Intuit, the fees charged to users of the Xxxxxxx.Xxx Voice
Service (subject to SECTION 2.3). Such fee must be approved by Intuit. Magic
will xxxx and receive payments from users of the Xxxxxxx.Xxx Voice Service. [**]
of the "VOICE SERVICE REVENUE" (as defined below) received by [**], subject to
SECTION 2.7(B). Within forty-five (45) days after the end of each quarter, [**]
will provide [**] with a written report stating 1) the amount of Voice Service
Revenue received by [**] during such quarter, 2) the total number of QVS
Customers, total number of new QVS Customers, and the total number of QVS
Customers that have cancelled their subscription, 3) usage statistics for QVS
Customers available to [**] and agreed to by the Parties, and 4) [**] of the
costs of operating the Introductory QVS Version during such quarter (to the
extent that [**] has not been recovered through [**] as described in SECTION
2.7(b)), along with payment of the amount due to [**] hereunder for such
quarter. As used herein, "VOICE SERVICE REVENUE" means [**] ("QVS CUSTOMER")
after deducting any taxes (other than income taxes), rebates (based upon
programs mutually agreed to by the Parties), refunds, and credits paid or given
by [**] in connection with the payment of such fees to [**].
2.8 VOICE SERVICE UPGRADES. During the term of this Agreement, Magic
shall develop enhancements to existing features of the Xxxxxxx.Xxx Voice Service
or new features of the Xxxxxxx.Xxx Voice Service (collectively, "VOICE SERVICE
UPGRADES") as (a) may be reasonably requested by Intuit from to time, (b) to
ensure the Portico Service functionality within the Xxxxxxx.Xxx Voice Service
remains in parity, in terms of quality, features and functionality, with the
then-current version of the Portico Service, and (c) as necessary to ensure that
the Xxxxxxx.Xxx Voice Service remains competitive with any similar service
commercially available in the United States. Magic's obligation to develop Voice
Service Upgrades pursuant to CLAUSE (A) above is subject to the Parties'
agreeing on the fees, if any, to be paid to Magic by Intuit for such
development. Magic [**] if the Voice Service Upgrade is included in the Portico
Service.
ARTICLE III - PERSONAL FINANCE FEATURE SET
3.1 DESIGN AND DEVELOPMENT.
(a) Magic will use commercially reasonable efforts to design and
develop the Personal Finance Feature Set by the applicable Target Dates. It is
understood and agreed that neither Party can guarantee the results or success of
these efforts, the Target Dates are subject to change as circumstances warrant,
and neither Party will have any liability to the other for any change in the
Target Dates, or any failure to complete any portion of this work by the
applicable
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
6
7
Target Date, as long as such Party is using good faith, commercially reasonable
efforts to fulfill its responsibilities in performing this work. It is also
understood that such design and development by the Target Dates [**] from Intuit
with respect to the Intuit Personal Finance Technology ("INTUIT PFF
ASSISTANCE"). This work is expected to include, among other things, (a) [**];
(b) the development [**] and the [**], and otherwise [**]; (c) the incorporation
by Magic of certain components of the [**] into the [**]; and (d) internal and
external (i.e., at customer beta sites) evaluation and testing of the Personal
Finance Feature Set until both Parties are satisfied with the quality and
reliability of the Personal Finance Feature Set such that the Personal Finance
Feature Set is suitable for commercial release. EXHIBIT F contains an overview
of the Parties' expected roles and responsibilities in performing this work.
(b) [**]
(c) In the event Intuit elects not to provide the Intuit PFF
Assistance as specified in CLAUSE (A) above, Magic shall not be obligated to (1)
complete the design and development of the applicable portion of the Personal
Finance Feature Set by the applicable Target Dates, or (2) complete the
integration of such Personal Finance Feature Set with the Portico Service.
Intuit shall have no further obligation with respect to the applicable Intuit
Personal Finance Technology thereto.
(d) When the Parties agree the Personal Finance Feature Set is ready
for commercial release, Magic will begin providing the Personal Finance Feature
Set as part of the Portico Service. Magic shall make available and manage the
Personal Finance Feature Set and Portico Service throughout the term of this
Agreement.
3.2 TECHNOLOGY DELIVERY AND LICENSES
(a) INTUIT PERSONAL FINANCE TECHNOLOGY. Intuit will deliver to
Magic those components of the Intuit Personal Finance Technology as are
necessary for Magic to fulfill its development obligations under this Agreement
and reasonably requested by Magic in order for Magic to fulfill its
responsibilities in performing the work described in SECTION 3.1 (collectively,
the "INTUIT DELIVERABLES"). Magic will have a non-exclusive, non-transferable,
[**] license during the term of this Agreement to use and reproduce, and to the
extent necessary modify and create Derivatives from, the Intuit Deliverables,
solely for the purpose of Magic's development of the Personal Finance Feature
Set under this Agreement. The Intuit Deliverables and Derivatives will be
considered Confidential Information of Intuit subject to the provisions of
SECTION 5.3. Magic acknowledges that notwithstanding anything to the contrary in
the Agreement, Intuit shall not be obligated to provide any support for any
modifications or Derivatives to the Intuit Deliverables made by Magic. In
addition, if Intuit acquires ownership of any Upgrade pursuant to SECTION 5.4
(C), Intuit grants to Magic a non-exclusive, non-
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
7
8
transferable, [**] license during the term of this Agreement to use and
reproduce such Upgrade solely in connection with Magic's delivery of the Portico
Service.
(b) PORTICO TECHNOLOGY. Magic will deliver to Intuit those
components of the Portico Technology as are needed or reasonably requested by
Intuit in order for Intuit to assist Magic in the design and development of the
Personal Finance Feature Set as described in SECTION 3.1 (collectively, the
"MAGIC DELIVERABLES"). Intuit will have a non-exclusive, non-transferable,
[**] license during the term of this Agreement to use and reproduce, and to the
extent necessary modify and create Derivatives from, the Magic Deliverables,
solely for the purpose of performing this work. The Magic Deliverables will be
considered Confidential Information of Magic subject to the provisions of
SECTION 5.3.
3.3 MARKETING. Magic will market and promote the Personal Finance
Feature Set when it promotes the Portico Service or OEM versions of the Portico
Service. Magic agrees at least [**] of its total marketing and advertising
expenditures shall be attributable to the Portico Service, OEM versions of the
Portico Service, and/or the Xxxxxxx.Xxx Voice Service.
3.4 BRANDING; CUSTOMER SUPPORT. The Personal Finance Feature Set,
including the components of the Quicken Web Site incorporated into the Portico
Service GUI, will be prominently identified by the Intuit Marks in a manner
reasonably acceptable to both Parties, it being understood that the Portico
Service is, and will continue to be, marketed under and branded with the Magic
Marks (or, in some cases, the trademarks of Magic's resellers). Magic will
provide all customer service and support to Portico Subscribers for the Portico
Service including the Personal Finance Feature Set. Intuit will [**] to Magic
for questions and problems solely attributable to the Quicken Web Site or the
Intuit Personal Finance Technology. The Parties will at all times cooperate to
ensure that customer questions and complaints are handled in a prompt and
professional manner. The level of such customer services shall be equal to or
better than the level of service generally provided and/or marketed by Magic to
customers of the Portico Service.
3.5 PROVISION OF CONTENT AND BACK-END SERVICE. As needed for beta tests
and otherwise during the development of the Personal Finance Feature Set, and
beginning upon the Launch Date, Intuit will (a) make available the Intuit
Personal Finance Content and Personal Financial Information for access and use
by Portico Subscribers who are entitled to receive the Personal Finance Feature
Set; and (b) maintain the Quicken Web Site to permit access by Portico
Subscribers to the Personal Finance Feature Set or, to the extent the Personal
Finance Feature Set is not provided through the Quicken Web Site, assist Magic
in receiving such back-end technical service and support as is needed by Magic
for the provision of the Personal Finance Feature Set by Magic.
3.6 FEES AND PAYMENT.
(a) Magic shall be responsible for all costs associated with the
design and development of the Portico Service, except that Intuit will be
responsible for all costs it incurs in providing assistance and support to Magic
pursuant to SECTION 3.1(a), SECTION 3.4, and SECTION 3.5.
(b) [**]. As between Intuit and Magic, Magic will determine, in its
sole discretion, the fees charged to Portico Subscribers for the Premium
Options. Magic (or its resellers) will xxxx and receive payment from Portico
Subscribers for the Premium Options. The fees to be paid by Magic to Intuit for
the Premium Options ("PREMIUM OPTION FEES") will be mutually agreed on a
case-by-
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
8
9
case basis for each Premium Option as the Parties decide to add to the Personal
Finance Feature Set; [**]. No Premium Option shall be made available by Magic
(or its resellers) until the fee to Intuit is agreed to by the Parties. Within
forty-five (45) days after the end of each quarter, Magic will provide Intuit
with a written report with Premium Option usage data for such quarter, along
with payment of the Premium Option Fees due to Intuit for such quarter.
3.7 UPGRADES. During the term of this Agreement, Magic shall develop
enhancements to the existing Personal Finance Feature Set, or new Base Features
or Premium Options (collectively, "UPGRADES"), as (a) may be reasonably
requested by Intuit from to time and (b) necessary to ensure that the Personal
Finance Feature Set remains competitive with any similar service commercially
available in the United States. Magic's obligation to develop Upgrades pursuant
to CLAUSE (a) above is subject to the Parties' agreeing on the fees, if any, to
be paid to Magic by Intuit for such development. Magic [**] if the Upgrade is
included in the Portico Service in order for the Portico Service to remain
competitive with any similar service commercially available in the United
States.
3.8 EXCLUSIVITY COVENANTS
(a) BY MAGIC. Magic agrees that during the Exclusivity Period,
Intuit will be the sole and exclusive sponsor of and provider of the personal
finance features of the Portico Service and Magic will not directly or
indirectly enter into any agreement for the provision of personal finance
features nor authorize a third party to refer to itself as a provider or sponsor
of personal finance functionality for the Portico Service. It is understood that
the foregoing covenant is not intended to restrict Magic from incorporating
additional personal finance content or functionality (other than the Intuit
Personal Finance Content and the Personal Finance Feature Set) supplied by a
third party into the Portico Service, provided that (i) Magic uses commercially
reasonable efforts to first obtain such content and/or functionality from
Intuit; and (ii) in the event Intuit elects not to provide such feature/content,
Magic obtains the consent of any such third party to allow the content or
functionality it provides to be identified, in a manner approved by Intuit, as
being sponsored by Intuit. It is further understood that Magic may provide a
subset of the features and functionality of the Portico Service (excluding the
Personal Finance Feature Set) to third party resellers for incorporation into
products or services marketed and distributed by such third parties under their
own marks and that such third party products and services may contain personal
finance content or functionality not provided by Intuit, provided that such
third party resellers agree to provide Intuit with the right to be identified as
the sponsor of such personal finance content or functionality in a manner
approved by Intuit.
(b) BY INTUIT. Intuit agrees that during the Exclusivity Period,
Magic will be (and will have the right to refer to itself as) the "exclusive
provider" of voice access to users of the Quicken Web Site located in the United
States. As long as Magic has this "exclusive provider" status, (i) Intuit will
not enter into any agreement or arrangement with any third party for such third
party to provide a voice service similar to either the Introductory QVS Version
or the Full QVS Version of the Xxxxxxx.Xxx Voice Service (i.e., access through a
designated telephone number to the content available through the Quicken Web
Site), and (ii) when marketing the Xxxxxxx.Xxx Voice Service, Intuit will refer
to Magic as the exclusive provider of voice access to the Quicken Web Site.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
9
10
ARTICLE IV - UPGRADE TO PORTICO SERVICE
4.1 PROMOTION OF UPGRADE. Within a reasonable period of time not to
exceed thirty (30) days after the Xxxxxxx.Xxx Voice Service becomes commercially
available, Intuit will begin to promote, on the Quicken Web Site an upgrade from
the Xxxxxxx.Xxx Voice Service to [**] Portico Service (including the [**]
available at such time). At the same time, [**] the Xxxxxxx.Xxx Voice Service.
[**]. This version of the Portico Service shall, at Intuit's discretion, be
marketed under the Intuit Marks in a manner reasonably acceptable to Magic
(which may include use of the "MagicTalk" marks), under the Magic Marks, or
under the name and trademarks of a third party reseller chosen by Magic and
reasonably acceptable to Intuit, pursuant to a separate agreement between Magic
and such reseller. Intuit will notify Magic in writing which of these three
branding options Intuit prefers. The Parties will work together to develop
technical and functional specifications for this version of the Portico Service
by the applicable Target Date, to be attached hereto as EXHIBIT G when
completed. Magic shall develop and provide to Intuit within sixty (60) days from
the Effective Date the initial technical and functional specification for this
version of the Portico Service. In the event Magic fails to deliver such initial
specification or in the event Intuit does not approve the initial specification
developed by Magic (it being understood and agreed that Intuit will not
unreasonably withhold such approval), Intuit shall have the right to terminate
this Agreement.
4.2 PROVISION OF SERVICE, CUSTOMER SUPPORT. As between Intuit and Magic,
Magic will be solely responsible for operating, providing, and administering the
Portico Service offered to users of the Xxxxxxx.Xxx Voice Service, and Magic
will provide all customer service and support for the Xxxxxxx.Xxx Voice Service
and Portico Service (with Intuit providing [**] to Magic for the Personal
Finance Feature Set as described in SECTION 2.6 and SECTION 3.4).
4.3 FEES AND PAYMENT. As between [**], [**] will determine,[**], the
fees charged to users of the Portico Service offered to users of the Xxxxxxx.Xxx
Voice Service. [**] will xxxx and receive payments from these Portico
Subscribers. [**] will pay [**] of the "UPGRADE REVENUE" (as defined below)
received by [**], subject to SECTION 2.7(b). Within forty-five (45) days after
the end of each quarter, [**] will provide [**} with a written report stating 1)
the amount of Upgrade Revenue received by [**] during such quarter, 2) the total
number of Upgrade Customers, total number of new Upgrade Customers, and the
total number of Upgrade Customers that have cancelled their subscription, 3)
usage statistics for Upgrade Customers relating to the Personal Finance Feature
Set, available to [**] and agreed to by the Parties, 4) [**] of the costs of
operating the Introductory QVS Version during such quarter, and 5) the [**]
received by [**} during such quarter as described in SECTION 2.7(B).
Accompanying each such report shall be the payment of the amount due to [**]
hereunder for such quarter. As used herein, "UPGRADE REVENUE" means the fees
charged by [**] to each [**] who upgrades to the [**] from the [**] ("UPGRADE
CUSTOMER"), after deducting any taxes (other than income taxes), rebates (based
upon programs mutually agreed to by the Parties), refunds, and credits paid or
given by [**] in connection with the payment of such fees to [**], during the
[**] after such upgrade.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
10
11
ARTICLE V - GENERAL
5.1 COOPERATION. Intuit and Magic will cooperate and use commercially
reasonable efforts to assist one another from time to time in identifying and
developing opportunities to market and promote the Quicken Web Site, the
Xxxxxxx.Xxx Voice Service, and the Portico Service, provided the Portico Service
includes the Personal Finance Feature Set, and other products and services of
the Parties as agreed to by the Parties. The Parties will also cooperate in
establishing Links between their respective web sites in a manner reasonably
acceptable to both Parties. In addition, to facilitate fast access to the Intuit
Personal Finance Content and Personal Financial Information, the Parties will
work together to establish a high-speed connection between their respective
service facilities; the Parties will share equally the costs of establishing and
maintaining this connection.
5.2 TRADEMARK LICENSES
(a) INTUIT MARKS. Subject to the terms and conditions set forth in
this paragraph, Intuit grants to Magic a limited, non-exclusive,
non-transferable license during the term of this Agreement to use the Intuit
Marks in connection with the marketing, promotion, and administration of the
Personal Finance Feature Set and the Xxxxxxx.Xxx Voice Service as described in
SECTIONS 2.5 and 3.4. Before making use of any Intuit Xxxx, Magic will provide
Intuit with a sample of the proposed use of the Intuit Xxxx for prior approval
by Intuit. If Intuit does not approve in writing the proposed use of the Intuit
Xxxx within [**] after receipt of the sample from Magic, Intuit will be deemed
to have disapproved the proposed use. If Intuit disapproves the proposed use of
the Intuit Xxxx, Magic will modify or cancel the proposed use. In addition,
Magic will comply with Intuit's then-current, trademark usage guidelines or
policies that Intuit may furnish to Magic in writing from time to time
concerning use of the Intuit Marks. A copy of such guidelines in effect as of
the Effective Date is set forth in EXHIBIT H attached and incorporated herein.
All use of the Intuit Marks hereunder will inure to the benefit of Intuit.
Intuit has and will retain exclusive ownership of the Intuit Marks, and Magic
will not contest or challenge, or do anything inconsistent with, Intuit's
exclusive ownership of the Intuit Marks. Without limiting the generality of the
foregoing, Magic may not affix, or append to, or place any of its trademarks,
trade names, or logos, on or in close proximity to, the Intuit Marks in a manner
that results or could result in the creation of a unitary composite xxxx.
(b) MAGIC MARKS. Subject to the terms and conditions set forth in
this paragraph, Magic grants to Intuit a limited, non-exclusive,
non-transferable license during the term of this Agreement to use the Magic
Marks in connection with the advertising, marketing, and promotion of the
Personal Finance Feature Set, the Xxxxxxx.Xxx Voice Service, and the Portico
Service. Before making use of any Magic Xxxx, Intuit will provide Magic with a
sample of the proposed use of the Magic Xxxx for prior approval by Magic. Once
such sample is approved no further approval is required for subsequent uses of
the Magic Xxxx in a manner similar to such sample. If Magic does not approve in
writing the proposed use of the Magic Xxxx within [**] after receipt of the
sample from Intuit, Magic will be deemed to have disapproved the proposed use.
If Magic disapproves the proposed use of the Magic Xxxx, Intuit will modify or
cancel the proposed use. In addition, Intuit will comply with Magic's
then-current trademark usage guidelines or policies that Magic may furnish to
Intuit in writing from time to time concerning use of the Magic Marks. A copy of
such guidelines in effect as of the Effective Date is set forth in EXHIBIT I
attached and incorporated herein. All use of the Magic Marks hereunder will
inure to the benefit of Magic. Magic has and will retain exclusive ownership of
the Magic Marks, and Intuit will not contest or challenge, or do anything
inconsistent with, Magic's exclusive ownership of the Magic Marks. Without
limiting the generality of the foregoing, Intuit
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
11
12
may not affix, or append to, or place any of its trademarks, trade names, or
logos, on or in close proximity to, the Magic Marks in a manner that results or
could result in the creation of a unitary composite xxxx.
5.3 CONFIDENTIALITY
(a) DEFINITION OF CONFIDENTIAL INFORMATION. For purposes of this
Agreement, "CONFIDENTIAL INFORMATION" of a Party means the information and
documents identified in this Agreement as confidential information of such
Party, as well as any and all other information that (i) such Party considers to
be confidential or proprietary to its business (including trade secrets,
technical information relating to ongoing research and development, business
strategies, marketing plans, customer lists, and financial data) and (ii) either
(A) is clearly labeled or identified in writing as confidential or proprietary
when disclosed to the other Party or (B) the other Party knew was considered
confidential or proprietary by the other Party.
(b) GENERAL CONFIDENTIALITY OBLIGATIONS. Each Party agrees that it
will (i) not disclose the other Party's Confidential Information to any third
party (other than independent contractors as provided below); (ii) use the other
Party's Confidential Information only to the extent necessary to perform its
obligations or exercise its rights under this Agreement; (iii) disclose the
other Party's Confidential Information only to those of its employees and
independent contractors who need to know such information for purposes of this
Agreement and who are bound by confidentiality agreements containing terms no
less restrictive than those in this SECTION 5.3; and (iv) protect all
Confidential Information of the other Party from unauthorized use, access, or
disclosure in the same manner as it protects its own confidential information of
a similar nature, and in no event with less than reasonable care.
(c) EXCEPTIONS. Each Party's obligations with respect to any portion
of the other Party's Confidential Information will terminate when the receiving
Party can document that (i) such Confidential Information was in the public
domain at the time it was communicated to the receiving Party by the disclosing
Party; (ii) such Confidential Information entered the public domain after it was
communicated to the receiving Party by the disclosing Party through no fault of
the receiving Party; (iii) such Confidential Information was in the receiving
Party's possession free of any obligation of confidence at the time it was
communicated to the receiving Party by the disclosing Party; or (iv) such
Confidential Information was developed by employees or agents of the receiving
Party independently of and without reference to any Confidential Information
communicated to the receiving Party by the disclosing Party. In addition,
SECTION 5.3(B) will not be construed to prohibit any disclosure that is (A)
necessary to establish the rights of either Party under this Agreement or (B)
required by a valid court order or subpoena, provided in the latter case that
the Party required to make such disclosure notifies the other Party (whose
Confidential Information is to be disclosed) thereof promptly and in writing and
cooperates with the other Party if the other Party seeks to contest or limit the
scope of such disclosure.
(d) TERMS OF AGREEMENT. Neither Party will disclose the existence or
any terms of this Agreement to anyone other than its attorneys, accountants, and
other professional advisors, except (i) pursuant to a mutually acceptable press
release or as otherwise approved by the other Party in writing; (ii) in
connection with a contemplated change of control of such Party or sale of such
Party's business (provided that any third party to whom the terms of this
Agreement are to be disclosed signs a confidentiality agreement reasonably
satisfactory to the other Party hereto before such disclosure is made); or (iii)
as may be required by law.
12
13
5.4 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. As between Intuit and
Magic, subject to each Party's ownership of its trademarks as provided in
SECTION 5.1, ownership of the Intellectual Property Rights under this Agreement
are as follows.
(a) Intuit will retain exclusive ownership of all Intellectual
Property Rights in the Intuit Personal Finance Content, the Intuit Personal
Finance Technology, the Quicken Web Site, the Personal Financial Information,
the Quicken Deliverables, the Intuit Deliverables and any modifications,
improvements, enhancements, and Derivatives made to or from any of the foregoing
by either Party in connection with this Agreement.
(b) Except as set forth in SECTION 5.4 (c) below, Magic will retain
exclusive ownership of all Intellectual Property Rights in the Portico Service,
the Portico Technology, the Portico Service GUI, the Portico Service VUI, the
Magic Deliverables, the Personal Finance Feature Set, and the Xxxxxxx.Xxx Voice
Service (subject to Intuit's ownership rights set forth in SECTION 5.4 (a)
above).
(c) Intuit will retain exclusive ownership of all Intellectual
Property Rights in (i) any Voice Service Upgrade paid for by Intuit pursuant to
SECTION 2.8 above, and (ii) any Upgrade paid for by Intuit pursuant to SECTION
3.7 above.
(d) Each Party agrees to cooperate with the other Party in executing
and filing any documents and taking any other action necessary or reasonably
requested by the other Party in order to give effect to the foregoing allocation
of Intellectual Property Rights.
5.5 INDEMNIFICATION
(a) BY INTUIT. Intuit will defend, at its own expense, all suits or
actions against Magic brought by third parties based upon claims that (A) the
Intuit Marks, the Intuit Personal Finance Technology, the Quicken Web Site, the
Intuit Deliverables, the Quicken Deliverables, the Intuit Personal Finance
Content, as provided by Intuit, infringes or misappropriates any Intellectual
Property Right of a third party or (B) the delivery of the Intuit Personal
Finance Content to Magic or to any subscriber of the Xxxxxxx.Xxx Voice Service
or any version of the Portico Service (provided such content has not been
modified by Magic or such subscriber) violates any law and Intuit will pay all
amounts agreed to in a monetary settlement of such claims and all damages
awarded as a final judgment by a court of competent jurisdiction, subject to the
limitations on liability in SECTION 5.10 and subject to the conditions that (i)
Magic give Intuit prompt written notice of the claim, (ii) Magic give Intuit
sole control of the defense and settlement of the claim, and (iii) Magic
cooperate with Intuit, at Intuit's reasonable request and expense, in the
defense or settlement of the claim. Magic may, at its own expense, participate
in any such suit or action with counsel of its own choice.
(b) BY MAGIC. Magic will defend, at its own expense, all suits or
actions against Intuit brought by third parties based upon claims that (A) all
versions of the Xxxxxxx.Xxx Voice Service, the Magic Marks, the Magic
Deliverables, the Portico Technology, the Portico Service, the Portico Service
GUI, or the Portico Service VUI infringes or misappropriates any Intellectual
Property Right of a third party or (B) the delivery of the Portico Service and
all versions of the Xxxxxxx.Xxx Voice Service (other than the Intuit Personal
Financial Content) violates any law and Magic will pay all amounts agreed to in
a monetary settlement of such claims and all damages awarded as a final judgment
by a court of competent jurisdiction, subject to the limitations on liability in
SECTION 5.10 and subject to the conditions that (i) Intuit give Magic prompt
written notice of the claim, (ii) Intuit give Magic sole control of the defense
and settlement of the claim, and (iii) Intuit cooperate with Magic, at Magic's
13
14
reasonable request and expense, in the defense or settlement of the claim.
Intuit may, at its own expense, participate in any such suit or action with
counsel of its own choice.
5.6 AUDIT RIGHTS. Magic will keep complete and accurate records
regarding the Premium Options Fees, the Voice Service Revenue, the Upgrade
Revenue, the payments received by Magic from sponsors and advertisers of the
Introductory QVS Version of the Xxxxxxx.Xxx Voice Service, and Intuit's Share of
the costs of operating the Introductory QVS Version of the Xxxxxxx.Xxx Voice
Service. During the term of this Agreement and for two (2) years thereafter,
Intuit will have the right to have an inspection and audit of Magic's relevant
books and records conducted by an independent audit professional chosen and paid
by Intuit and reasonably acceptable to Magic, no more often than once every
twelve (12) months (except as specified below), during regular business hours at
Magic's offices and in a manner that does not interfere with Magic's business
operations. If any such audit reveals that Magic has underpaid or overpaid the
amounts owed to Intuit under this Agreement, then 1) Magic will promptly pay to
Intuit the amount owed or Intuit will promptly refund to Magic the amount
overpaid, as the case may be, and 2) Intuit may conduct a further audit within
such twelve (12) month audit period.
5.7 TAXES. Intuit will be solely responsible for all applicable taxes or
other governmental fees, charges, or assessments imposed on or resulting from
the fees paid to Intuit hereunder. Magic will be solely responsible for all
applicable taxes or other governmental fees, charges, or assessments imposed on
or resulting from the fees collected by Magic under this Agreement other than
income taxes due from Intuit on the fees paid by Magic to Intuit hereunder.
5.8 DOWNSTREAM LIABILITY DISCLAIMERS. Before Magic begins providing the
Personal Finance Feature Set or the Xxxxxxx.Xxx Voice Service, Magic will
provide Intuit with a copy of Magic's then-current form of subscriber agreement
for the Portico Service or the Xxxxxxx.Xxx Voice Service, as the case may be,
and Intuit will have a reasonable period of time, not to exceed forty-five (45)
days, to notify Magic if Intuit wants Magic to include any additional liability
or warranty disclaimers, proprietary rights notices, or similar clauses in such
form of agreement. Magic will comply with any reasonable request by Intuit.
Similarly, before Magic begins providing the Xxxxxxx.Xxx Voice Service, Magic
will notify Intuit if Magic wants Intuit to include any additional liability or
warranty disclaimers, proprietary rights notices, or similar clauses regarding
the Xxxxxxx.Xxx Voice Service in the "TERMS AND CONDITIONS OF USE" posted on the
Quicken Web Site, and Intuit will comply with any reasonable request by Magic.
Neither Party will modify or remove any such disclaimers, notices, or other
clauses without the prior written consent of the other Party.
5.9 WARRANTY DISCLAIMERS. NEITHER PARTY MAKES ANY WARRANTIES TO THE
OTHER PARTY, EXPRESS OR IMPLIED, REGARDING SUCH PARTY'S PRODUCTS, SERVICES,
DELIVERABLES, OR TECHNOLOGY, INCLUDING THE PORTICO SERVICE, PERSONAL FINANCE
FEATURE SET, QUICKEN WEB SITE, XXXXXXX.XXX VOICE SERVICE, PORTICO TECHNOLOGY,
INTUIT PERSONAL FINANCE TECHNOLOGY, INTUIT PERSONAL FINANCE CONTENT, MAGIC
DELIVERABLES, INTUIT DELIVERABLES, AND QUICKEN DELIVERABLES AND EACH PARTY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE FOREGOING.
5.10 LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING
LOST PROFITS, IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR AMOUNTS OWED BY
MAGIC TO INTUIT UNDER SECTIONS 2.7, 3.6, AND 4.3 AND EXCEPT FOR OBLIGATIONS OF
14
15
EITHER PARTY UNDER SECTION 5.5, AND EXCEPT IN THE EVENT OF AN UNCURED BREACH OF
SECTIONS 5.2, 5.3 AND 5.4, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY TO THE
OTHER PARTY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATING
TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, IN TORT,
OR OTHERWISE, WILL NOT EXCEED [**].
5.11 TERM AND TERMINATION.
(a) The term of this Agreement will begin as of the Effective Date
and will continue for a period of two (2) years thereafter ("INITIAL TERM) the
Agreement will automatically renew for additional one (1) year periods ("RENEWAL
TERM"), unless one of the following occurs: (i) either party terminates this
Agreement earlier as specified in this SECTION 5.11; or (ii) either party
provides written notice to the other sixty (60) days prior to the expiration of
the Initial Term or any Renewal Term.
(b) Each Party will have the right to terminate this Agreement upon
written notice to the other Party if (i) the other Party has committed a
material breach of this Agreement, (ii) the other Party has not cured such
breach within a reasonable period of time of no less than sixty (60) days after
receipt of written notice of such breach from the other Party, and (iii) such
breach remains uncured as of the effective date of termination.
(c) In addition, this Agreement will automatically terminate if both
the Xxxxxxx.Xxx Voice Service has not been commercially released, and the Launch
Date has not occurred, by December 31, 1999 (or such other date as the Parties
may agree in writing).
(d) Upon termination of this Agreement for any reason and upon
Intuit's request, Magic will continue to offer the Xxxxxxx.Xxx Voice Service, on
a non-exclusive basis, to Xxxxxxx.Xxx Voice Service customers for a period not
to exceed ninety (90) days ("WIND DOWN PERIOD").
(e) Upon termination of this Agreement for any reason and upon
completion of the Wind Down Period, if any, (i) each Party will promptly return
all Confidential Information of the other Party, (ii) Magic will pay all
outstanding amounts owed to Intuit under this Agreement within forty-five (45)
days after the effective date of such termination, and (iii) the following
provisions will nonetheless remain in effect: ARTICLE I ("Definitions") and all
of ARTICLE V ("General") except SECTIONS 5.1 ("Cooperation"), 5.2 ("Trademark
Licenses"), and 5.8 ("Downstream Liability Disclaimers").
(f) In the event the Agreement is (i) terminated by Intuit pursuant
to SECTION 5.11 (b) above, or (ii) terminated by Magic pursuant to SECTION 5.11
(a), in addition to the provisions in SECTION 5.11 (e) above, SECTION 4.3 (Fees
and Payments) will nonetheless remain in effect.
5.12 RELATIONSHIP OF PARTIES. Nothing in this Agreement will be
construed as creating any agency, partnership, or other form of joint enterprise
between the Parties. Neither Party will have the authority to act or create any
binding obligation on behalf of the other Party, and neither Party will
represent to any third party that it has the authority to act or create any
binding obligation on behalf of the other Party.
5.13 NOTICES. All notices, consents, waivers, and other communications
intended to have legal effect under this Agreement must be in writing, must be
delivered to the other Party at the address set forth at the top of this
Agreement by personal delivery, certified mail (postage pre-paid), or a
nationally recognized overnight courier, and will be effective upon receipt (or
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
15
16
when delivery is refused). Any such notices sent to Magic must be addressed to
the attention of its General Counsel. Each Party may change its address for
receipt of notices by giving notice of the new address to the other Party.
5.14 GOVERNING LAW AND VENUE. This Agreement will be governed by and
interpreted in accordance with the laws of the State of California as such laws
apply to contracts made between California residents to be performed entirely
within California. The United Nations Convention for the Sale of International
Goods will not apply to this Agreement. Any suit, action or proceeding arising
from or relating to this Agreement must be brought in a federal court in the
Northern District of California or in state court in Santa Xxxxx County,
California, and each Party irrevocably consents to the jurisdiction and venue of
any such court in any such suit, action or proceeding.
5.15 INJUNCTIVE RELIEF. It is understood and agreed that,
notwithstanding any other provision of this Agreement, any breach of SECTION 5.3
by either Party will cause irreparable damage for which recovery of money
damages would be inadequate, and that the non-breaching Party will therefore be
entitled to seek timely injunctive relief to protect such Party's rights under
this Agreement in addition to any and all remedies available at law.
5.16 WAIVER. The failure of either Party to require performance by the
other Party of any provision of this Agreement will not affect the full right to
require such performance at any time thereafter; nor will the waiver by either
Party of a breach of any provision of this Agreement be taken or held to be a
waiver of the provision itself.
5.17 SEVERABILITY. If any provision of this Agreement is unenforceable
or invalid under any applicable law or is so held by applicable court decision,
such unenforceability or invalidity will not render this Agreement unenforceable
or invalid as a whole, and such provision will be changed and interpreted so as
to best accomplish the objectives of such unenforceable or invalid provision
within the limits of applicable law or applicable court decisions.
5.18 ASSIGNMENT. Neither this Agreement nor any rights or obligations of
either Party under this Agreement may be assigned in whole or in part without
the prior written consent of the other Party except in connection with a merger
or sale of all or substantially all of the business or assets of the assigning
Party. Any attempted assignment in violation of the preceding sentence will be
void. This Agreement will bind and inure to the benefit of the respective
successors and permitted assigns of the Parties.
5.19 FORCE MAJEURE. Neither Party will be liable for any failure to
fulfill its obligations hereunder due to causes beyond its reasonable control,
including acts or omissions of government or military authority, acts of God,
shortages of materials, transportation delays, earthquakes, fires, floods, labor
disturbances, riots, or wars.
5.20 FULL POWER. Each Party warrants that it has full power to enter
into and perform this Agreement, and the person signing this Agreement on such
Party's behalf has been duly authorized and empowered to enter into this
Agreement.
5.21 CONSTRUCTION. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such section or in any way affect this
Agreement. Unless otherwise expressly stated, when used in this Agreement the
word "including" means "including but not limited to."
5.22 ENTIRE AGREEMENT AND AMENDMENT. This Agreement together with the
Exhibits completely and exclusively states the agreement of the Parties
regarding its subject matter. It supersedes, and its terms govern, all prior
understandings, agreements, or other communications
16
17
between the Parties, oral or written, regarding such subject matter. This
Agreement may be executed in counterparts (each of which will be deemed an
original and all of which will be deemed to be one instrument) and may be
amended only in a document signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
INTUIT INC. GENERAL MAGIC, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxx
-------------------------------- ------------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx Xxxxxxx
----------------------------- ---------------------------------
Title: Senior Vice President Title: Chairman, President & CEO
---------------------------- --------------------------------
17
18
EXHIBIT A
INTUIT MARKS
18
19
EXHIBIT B
MAGIC MARKS
19
20
EXHIBIT C
TARGET DATES
20
21
EXHIBIT D
SPECIFICATIONS FOR XXXXXXX.XXX VOICE SERVICE
21
22
EXHIBIT E
SPECIFICATIONS FOR PERSONAL FINANCE FEATURE SET
22
23
EXHIBIT F
PROJECT PLAN
23
24
EXHIBIT G
SPECIFICATIONS FOR PORTICO SERVICE UPGRADE
24
25
EXHIBIT H
INTUIT TRADEMARK GUIDELINES
1. INTUIT TRADEMARKS MUST BE USED AS ADJECTIVES, NOT NOUNS
Trademarks are adjectives, and should always be used with the generic term that
they modify. For example:
CORRECT: Quicken(R) software is an excellent product.
INCORRECT: Quicken(R) is the ideal product for your needs.
The above is the most important rule of trademark usage. The word "software," or
similar generic language (i.e. "personal finance software"), should immediately
follow all Intuit trademarks in each piece of advertising, promotion or other
written material. On occasion, the generic term may be omitted where the
immediate context makes it clear that a generic term is intended, such as in
repetitive uses of the trademark within a single paragraph or section, but these
exceptions should be used with care. The generic term should always be used at
the beginning of a piece and at significant points subsequently. In addition,
Intuit trademarks must not be used as possessives. (This follows from the
principle that trademarks are adjectives, not nouns.) For example:
CORRECT: The efficiency of QuickBooks(R) Pro software is outstanding.
INCORRECT: QuickBooks(R) Pro's efficiency is outstanding.
2. RETAIN THE DISTINCTIVE APPEARANCE OF INTUIT TRADEMARKS WITHOUT USING
SPECIALIZED TYPE OR LOGO FORMS Intuit trademarks should always be presented in a
distinctive, but non-stylized fashion. Special typefaces/fonts should not be
used, and Company logos and typefaces cannot be used. This means that the marks
must appear in a regular typeface while retaining their distinctive
capitalization and/or spacing. Marks may also appear in all upper-case letters
while retaining correct spacing. For Example:
CORRECT: TurboTax(R) software; or TURBOTAX(R) software
INCORRECT: Turbo Tax software
3. USE APPROPRIATE STATUS AND OWNERSHIP LEGENDS WITH INTUIT TRADEMARKS All
Intuit- and subsidiary-owned Registered trademarks should appear with the "(R)"
symbol directly next to the xxxx and generally in superscript form. Intuit
trademarks that are not registered should appear with the superscript "TM". The
appropriate legend must be used each time an Intuit trademark is printed.
(Please contact Intuit if you need information on the registration status of a
particular trademark.) In addition, all written documents, displays or
advertisements which include an Intuit trademark must contain the appropriate
ownership legend, ideally at the beginning of the piece. For example:
Quicken(R) is a registered trademark of Intuit Inc.
4. DO NOT USE INTUIT TRADEMARKS IN COMPANY NAMES OR ON DIRECT BUSINESS SOURCE
IDENTIFIERS Intuit trademarks may not be used in company names or on direct
business source identifiers like stationery, business cards, and company signs.
These items identify the name of a business
25
26
and, thus, the source of its products or services. In order to avoid any
possible confusion with regard to the source of Intuit products, no use of
Intuit trademarks on these identifiers is allowed. (Of course, the use of Intuit
trademarks in detailed brochures, certain advertisements, presentations and the
like, is permitted as long as all of the other guidelines contained herein are
followed.)
5. ONLY INTUIT MAY USE THE COMPANY TRADE NAME, TRADEMARK AND COMPANY LOGO
TRADEMARK No one except Intuit may use the Company name, trademark or logo
trademark in connection with the sale, provision or advertisement of any product
or service. The only use of the Company name that is permitted (in connection
with selling products or services) is to display the ownership legend for
Intuit's trademarks, as shown in Number 4 above.
PLEASE CONTACT XXXX XXXXXX AT (000) 000-0000 IF YOU HAVE ANY QUESTIONS.
26
27
EXHIBIT I
MAGIC TRADEMARK GUIDELINES
[to be attached by Magic]
27
