[CONFIDENTIAL TREATMENT REQUESTED]
Exhibit 10.1
ALLIANCE AGREEMENT
This Alliance Agreement (this "Agreement") is made effective as of
November 15, 1999 (the "Effective Date") by and between Adobe Systems
Incorporated, a Delaware corporation, with a business address of 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000 ("Adobe") and Impresse Corporation, a California
corporation, with a business address of 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX
00000 ("Impresse").
RECITALS
1. Adobe operates a web site located at xxx.xxxxx.xxx (the "Adobe
Site"), which is designed to appeal to creative professionals and other users
that may have an interest in the services provided by Impresse.
2. Impresse operates a web site located at xxx.xxxxxxxx.xxx (the
"Impresse Site"), at which users can register for an online print procurement
service (the "Printing Service"). The Printing Service is more fully
described on the Impresse Site.
3. Adobe and Impresse are interested in a business relationship in
which visitors to the Adobe Site are given the opportunity to learn about,
register for, and regularly use the Printing Service and Adobe and Impresse
share in the revenue generating from registrants to the Printing Service.
AGREEMENT
Now therefore, in consideration of the mutual promises and
consideration set forth herein, the parties agree as follows:
1.0 DEFINITIONS. The following terms as they are used in this Agreement
shall have the meanings set forth below:
1.1 "ADOBE SOURCED CUSTOMER" means a user who originates at the
Adobe site and becomes a customer of the Printing Service, either by a)
following a Link from the Adobe Site to the Information Page and indicating a
desire to be contacted by or receive information from Impresse and
subsequently registering for the Printing Service, or (b) following a Link
from the Adobe Site to the Co-Branded Area and registering for the Printing
Service at the Co-Branded Area.
1.2 "CO-BRANDED AREA" means a set of online sales, marketing and
help pages linked directly to the Adobe Site on which trademarks and other
branding of each of Adobe and Impresse exist and where users may register for
and use the Printing Service.
1.3 "INFORMATION PAGE" means an internet location which is linked to
the Adobe Site and which provides information about the Printing Service.
* Represents confidential information for which Impresse Corporation is
seeking confidential treatment with the Securities and Exchange Commission.
-1-
1.4 "INTELLECTUAL PROPERTY RIGHTS" means any patents, copyrights,
trademarks, moral rights, rights of publicity or other intellectual property
or proprietary rights of any kind (and any application or registration
respecting the foregoing), now known or hereafter existing.
1.5 "LAUNCH DATE" means the date on which the Co-Branded Area
becomes operational and available to end users.
1.6 "LINK" means a URL hidden behind a formatting option that may
take the form of some or all of the following: a colored item of text (such
as a URL description), logo or other trademark, or image, which allows a user
to automatically move to or between pages or sites on the Web.
1.7 "NET REVENUE" means transaction or service fees collected by
Impresse from Adobe Sourced Customers, less sales, use or any other taxes and
duties.
1.8 "REFERRAL FEES" mean the fees paid to Adobe by Impresse based on
Net Revenues.
1.9 "TERM" means the initial term of this Agreement as set forth in
Section 13 and any renewals or extensions thereof.
2.0 ESTABLISHMENT OF INFORMATION PAGE AND CO-BRANDED AREA.
2.1 INFORMATION PAGE. Promptly following the Effective Date, the
parties will establish and make operational the Information Page, the look
and feel and contents of which will be mutually agreed upon. Visitors to the
Information Page can request to be contacted by Impresse, The Information
Page will become inoperative upon the Launch Date.
2.2 CO-BRANDED AREA. By January 31, 2000, the parties will establish
and make operational the Co-Branded Area, the look and feel and contents of
which will be mutually agreed upon. The Co-Branded area will contain
information about the Printing Service and will provide a mechanism for users
to register directly for the Printing Service. Adobe Sourced Customers will
pass through the Co-Branded Area each time they use the Printing Service.
3.0 OBLIGATIONS OF ADOBE.
3.1 LINKS TO CO-BRANDED AREA. For the duration of the Term, Adobe
shall place one or more Links from the Adobe Site to the Co-Branded Area.
3.2 PROMOTION OF IMPRESSE SITE. Adobe will promote Impresse and the
Printing Service to users of its products, visitors to the Adobe Site and to
the Adobe Solutions Network of printers and service bureaus in the following
ways:
3.2.1 Adobe will promote the Printing Service to Adobe
applications users via Adobe Online (a palette that
links the desktop directly to Xxxxx.xxx).
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3.2.2 Adobe will make reasonable efforts to include
Impresse in co-marketing programs and activities
including, for example, newsletters, seminars, road
shows, and promotions.
3.2.3 Adobe will provide to Impresse partner booth space at
least one trade show per year.
3.3 LIAISON. Adobe shall designate an individual as the primary
contact with respect to this Agreement. The initial Adobe liaison shall be
Xxxxxx X. Xxxx. Adobe may change the Adobe liaison from time to time.
3.4 EXCLUSIVITY. During the initial one-year-term of this Agreement,
Adobe will not promote on the Adobe Site, or provide links from the Adobe
Site to, any online print procurement service provider identified in Exhibit
E (each, an "Impresse Named Competitor").
3.5 IMPRESSE CUSTOMER. Within a commercially reasonable time, Adobe
will become a customer of the Printing Service or Xxxxxxxx.xxx by entering
into a separate Customer Agreement; substantially in the form attached hereto
as Exhibit F. Adobe will not enter into any agreement to become a customer of
an Impresse Named Competitor in a manner similar to that contemplated herein
for a period of 6 months from the Effective Date.
4.0 OBLIGATIONS OF IMPRESSE
4.1 PROMOTION OF ADOBE. Impresse will educate its customers on the
benefits of Adobe products, technologies, and workflows through the posting
on the Impresse Site and in the Co-Branded Area of content provided by Adobe.
4.2 EXCLUSIVITY. Impresse will link to the Adobe Site and Xxxxx.xxx
content as its exclusive graphics and publishing partner Web site. Impresse
will not link to or promote in any way a web site that is owned or operated
by the entities identified in Exhibit E (the "Adobe Named Competitors").
4.3 LIAISON. Impresse shall designate an individual as the primary
contact with respect to this Agreement. The initial Impresse liaison shall be
Xxxxx X. Xxxxxxx. Impresse may change the Impresse liaison from time to time.
4.4 OPERATION OF INFORMATION PAGE AND IMPRESSE SITE. Subject to
Section 2.0 and with respect to the Information Page, Impresse Site and the
Printing Service, Impresse agrees that it shall be solely responsible for:
(a) customer service and support; (b) hosting and maintenance; (c) quality
and delivery of all services operated by Impresse as part of the Printing
Service to Adobe Sourced Customers, Impresse acknowledges that all of the
foregoing shall be at the sole expense of Impresse. In addition, Impresse
agrees that it will not intentionally conduct any illegal activities at the
Impresse Site.
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5.0 LICENSE GRANTS
5.1 BY ADOBE.
5.1.1 LINK. Adobe hereby grants to Impresse a limited,
royalty-free, non-exclusive, non-sublicensable and non-transferable license
to establish a Link(s) from the Impresse Site to the Adobe Site during the
term of this Agreement solely for the purposes of this Agreement.
5.1.2 ADOBE MARKS. Adobe hereby grants to Impresse a
limited, royalty-free, non-exclusive, non-sublicensable and non-transferable
license to use in connection with the activities contemplated by this
Agreement the trademarks identified in Exhibit A (the "Adobe Marks") in
accordance with any trademark usage guidelines provided to Impresse by Adobe
from time to time. Prior to Impresse using any Adobe Marks, Impresse shall
provide Adobe the opportunity to review and approve the use of the Adobe
Marks. If Impresse has not received any notice of Adobe's approval or
disapproval within three business days after Adobe's receipt of the proposed
usage of the Adobe Marks, Adobe shall be deemed to have approved such usage.
Any substantive changes in previously approved materials must be resubmitted
to Adobe for approval.
5.1.3 PROPRIETARY RIGHTS. Impresse acknowledges Adobe's
ownership of the Adobe Marks, and that all use by Impresse of the Adobe Marks
shall inure to the benefit of Adobe. Impresse shall at any time execute any
documents reasonably required by Adobe in connection with Adobe's ownership
rights. All of Adobe's rights in the Adobe Marks other than those
specifically licensed herein are reserved by Adobe for its own use and benefit.
5.2 BY IMPRESSE.
5.2.1 LINK. Impresse hereby grants to Adobe a limited,
royalty-free, non-exclusive, non-sublicensable and non-transferable license
to establish a Link(s) from the Adobe Site to the Co-Branded Area and the
Impresse Site during the term of this Agreement solely for the purposes of
this Agreement.
5.2.2 IMPRESSE MARKS. Impresse hereby grants to Adobe a
limited, royalty-free, non-exclusive, non-sublicensable and non-transferable
license to use the trademarks identified in Exhibit B (the "Impresse Marks")
") in accordance with any trademark usage guidelines provided to Adobe by
Impresse from time to time. Prior to Adobe using any Impresse Marks, Adobe
shall provide Impresse the opportunity to review and approve the use of the
Impresse Marks. If Adobe has not received any notice of Impresse's approval
or disapproval within three business days after Impresse's receipt of the
proposed usage of the Impresse Marks, Impresse shall be deemed to have
approved such usage. Any substantive changes in previously approved materials
must be resubmitted to Impresse for approval.
5.2.3 PROPRIETARY RIGHTS. Adobe acknowledges Impresse's
ownership of the Impresse Marks, and that all use by Adobe of the Impresse
Marks shall inure to the benefit of Impresse. Adobe shall at any time execute
any documents reasonably required by Impresse in connection with Impresse's
ownership rights. All of Impresse's rights in the Impresse Marks other than
those specifically licensed herein are reserved by Impresse for its own use
and benefit.
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[CONFIDENTIAL TREATMENT REQUESTED]
6.0 PAYMENTS AND REPORTING
6.1 REFERRAL FEES.
6.1.1 PRIOR TO LAUNCH DATE. During the period from the
Effective Date to the Launch Date, Impresse will pay Adobe [*] for each
Adobe Sourced Customer. These payments will be made on a monthly basis and
within thirty days of the end of the month in which the Adobe Sourced
Customer registered for the Printing Service.
6.1.2 SUBSEQUENT TO LAUNCH DATE. Following the Launch Date,
Impresse will pay to Adobe on a quarterly basis Referral Fees according to
the schedule outlined in Table A below. The Referral Fees with respect to
each year that an Adobe Sourced Customer remains a customer of the Printing
Service will be calculated by multiplying the "Applicable Percentage" by the
Net Revenue received by Impresse from Adobe Sourced Customers for such year.
The Applicable Percentage for a particular year shall be as set forth in
Table A below. Year 1 of customer activity begins when the customer account
is opened in the Co-Branded Area. These payments will be made within thirty
days of the end of each quarter, Impresse will only be required to make such
payments to the extent that they exceed the guaranteed minimum payments set
forth in Table B of Section 6.1.3.
TABLE A
------------------------------------------------------------------------------
% OF NET REVENUE
FROM ADOBE SOURCED
YEAR OF CUSTOMER ACTIVITY CUSTOMERS
------------------------------------------------------------------------------
1 [*]
------------------------------------------------------------------------------
2 [*]
------------------------------------------------------------------------------
3 [*]
------------------------------------------------------------------------------
4 and beyond [*]
------------------------------------------------------------------------------
6.1.3 GUARANTEED MINIMUM. During the twelve month period
following the Effective Date, Impresse will pay Adobe the nonrefundable,
guaranteed minimum customer Referral Fees set forth in Table B. The first
[*] per year of payments made by Impresse to Adobe Magazine will be
credited toward the guaranteed minimum Referral Fees.
TABLE B
------------------------------------------------------------------------------
QUARTER OF ALLIANCE GUARANTEED MINIMUM
AGREEMENT PAYMENT
------------------------------------------------------------------------------
1 [*]
------------------------------------------------------------------------------
2 [*]
------------------------------------------------------------------------------
3 [*]
------------------------------------------------------------------------------
4 [*]
------------------------------------------------------------------------------
6.2 REPORTING. Impresse will provide Adobe with a monthly report on
Adobe Sourced Customers, including accounts opened and closed, active
customer accounts, and
* Represents confidential information for which Impresse Corporation is
seeking confidential treatment with the Securities and Exchange Commission.
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[CONFIDENTIAL TREATMENT REQUESTED]
transaction amounts. Impresse will provide the names of all Adobe Sourced
Customers as well as physical and email addresses and all other information
collected from such customers.
6.3 AUDITS. During the term of this Agreement and for one (1) year
thereafter, Impresse will keep and maintain the information and records
related to each Adobe Sourced Customer, including the information necessary
for the calculation of applicable Referral Fees. Upon Adobe's request, and
with at least five (5) business days notice, Impresse will provide access to
such information and records for examination and audit by an independent
Certified Public Accountant designated by Adobe. Notwithstanding the
foregoing, Adobe shall not be entitled to examine and audit the specified
information more than one (1) time per quarter. Adobe will pay all costs of
such examination and audit unless such audit discovers a discrepancy of ten
percent (10%) or more between the amount of Referral Fees paid to Adobe for
the quarter in question and the amount of Referral Fees due to Adobe by
Impresse hereunder during such calendar quarter, in which case the reasonable
costs of the audit shall be borne by Impresse. In addition, Impresse Shall
promptly remit such discrepancy to Adobe for the applicable quarter.
7.0 CUSTOMER DATA.
7.1 INFORMED CONSENT. The parties will provide that Adobe Sourced
Customers are made aware that any personal information they disclose when
registering for or using the Printing Service will be made available to each
of Adobe and Impresse. Both parties will protect customer data pursuant to a
privacy policy to be mutually agreed upon and in accordance with U.S. and
international privacy laws and regulations.
8.0 CONFIDENTIALITY.
8.1 CONFIDENTIALITY AGREEMENT. Any and all information,
correspondence, financial statements and records and other documents
transmitted or communicated by either party to the other party in conjunction
with this Agreement shall be governed by the Master Agreement for Mutual
Non-Disclosure of Information, dated November 10, 1999 by and between Adobe
and Impresse (the "NDA") and attached as Exhibit D hereto. The terms of this
Agreement shall be considered "Confidential Information" pursuant to the NDA.
9.0 FUTURE COLLABORATION. Adobe and Impresse will use reasonable
commercial efforts to collaborate on the investigation of additional
integration opportunities for Adobe applications into both the pre press
workflow and the collaborative document authoring workflow. These services may
include, but are not limited to:
[*]
* Represents confidential information for which Impresse Corporation is
seeking confidential treatment with the Securities and Exchange Commission.
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Failure by the parties to agree on additional collaborative efforts shall not
be deemed a breach of this Agreement.
10.0 WARRANTIES
10.1 BY IMPRESSE. Impresse warrants that:
10.1.1 it is a corporation duly organized and validly
existing under the laws of the state identified in the first introductory
paragraph of this Agreement;
10.1.2 the execution, delivery and performance by Impresse
of this Agreement are within the corporate powers of Impresse and have been
duly authorized by all necessary corporate action on the part of Impresse;
10.1.3 the Printing Service will perform in accordance with
the description and specifications for the Printing Service set forth on the
Impresse Site;
10.1.4 it has or will have entered into binding, written
agreements with all third party providers of any software, technology,
content or other materials used in the Printing Service that provide Impresse
all necessary rights, licenses or authorizations to provide the Printing
Service to end users;
10.1.5 the operation of the Printing Service does not
infringe upon any third party Intellectual Property Rights.
10.1.6 The Printing Service will be Year 2000 compliant to
the ANSI, FIPS, ISO, etc. nationally accepted standards and will correctly
store, process and present calendar dates beyond December 31,1999 in the same
manner and with the same functionality as on or before December 31, 1999.
10.2 BY ADOBE. Adobe warrants that:
10.2.1 it is a corporation duly organized and validly
existing under the laws of the state identified in the first introductory
paragraph of this Agreement;
10.2.2 the execution, delivery and performance by Adobe of
this Agreement are within the corporate powers of Adobe and have been duly
authorized by all necessary corporate action on the part of Adobe.
11.0 DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABLITY
11.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
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MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR
ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE
OF PERFORMANCE.
11.2 LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF
DATA, PROFITS, USE OF THE ADOBE OR IMPRESSE SITES OR ANY ADOBE OR IMPRESSE
PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12.0 INDEMNIFICATION
12.1 INDEMNITY BY ADOBE. Adobe will defend, indemnify and hold
Impresse, its affiliates and their respective officers, directors, and
employees, harmless from and against any and all liabilities, losses,
damages, costs and expenses (including legal fees) associated with any third
party claim brought against Impresse in connection with or related to any
allegation that the Adobe Site or materials provided by Adobe for use in the
Co-Branded Area infringes any Intellectual Property Rights of any third party
or defames or invades any right of publicity or privacy of any third party.
12.2 INDEMNITY BY IMPRESSE. Impresse will defend, indemnify and hold
Adobe, its affiliates and their respective officers, directors, and
employees, harmless from and against any and all liabilities, losses,
damages, costs and expenses (including legal fees) associated with any third
party claim brought against Adobe in connection with or related to any
allegation that the Impresse Site, the products and services offered on the
Impresse Site, including without limitation, the Printing Service, or
materials provided by Impresse for use in the Co-Branded Area, infringe any
Intellectual Property Rights of any third party or defames or invades any
right of publicity or privacy of any third party.
12.3 CONDITIONS TO INDEMNITY. The obligations of either party to
provide indemnification under this Agreement shall be contingent upon the
party seeking indemnification (i) providing the indemnifying party with
prompt written notice of any claim for which indemnification is sought, (ii)
cooperating fully with the indemnifying party (at the indemnifying party's
expense), and (iii) allowing the indemnifying party to control the defense
and settlement of such claim.
13.0 TERM AND TERMINATION
13.1 TERM. The initial term of this Agreement shall be for a period
of one year, commencing on the Effective Date. The parties may renew or
extend this Agreement for any mutually agreeable term.
13.2 TERMINATION BY EITHER PARTY. This Agreement may be terminated
by either party prior to the completion of the Term for the following reasons:
- after the first 12 months of the Agreement, for any or no
cause upon 30 days' written notice to the other party;
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- immediately upon written notice if the other party makes a
general assignment for the benefit of its creditors, files a voluntary
petition in bankruptcy or for reorganization under the bankruptcy laws or if
a petition is filed against it, or if a receiver or trustee is appointed for
such other party;
- upon written notice if the other party is in material
breach of a material term or condition of this Agreement and fails to remedy
such breach within thirty (30) business days of written notice.
13.3 TERMINATION BY ADOBE. Adobe may terminate this Agreement if, in
Adobe's good faith judgement, the Printing Service is not consistently
operated in a reliable, professional manner that reflects favorably upon
Adobe.
13.4 EFFECT OF TERMINATION. Upon termination of this Agreement for
any reason, each party shall immediately (i) cease all use of the Marks of
the other party, and (ii) remove Links to the other party's site from its
site..
13.5 SURVIVAL. The following sections shall survive termination or
expiration of this Agreement: 1.0, 6.1 (only with respect to payment
obligations for fees accrued up to the Termination Date), 6.3, 7.0, 8.0,
10.0, 11.0, 12.0, 13.3, 13.4, and 14.
14. GENERAL
14.1 ENTIRE AGREEMENT. This Agreement, together with all Exhibits
hereto, sets forth the entire agreement between the parties in connection
with the subject matter hereof and it incorporates, replaces, and supersedes
all prior agreements, promises, proposals, representations, understandings
and negotiations, written or oral, between the parties in connection
therewith.
14.2 NOTICES. All notices under this Agreement shall be given in
writing via overnight courier or first class mail, postage prepaid, return
receipt requested, to the addresses set forth above or such other address as
either party may substitute by notice hereunder and all such notices given in
accordance hereunder shall be deemed given as of the date of mailing. Notices
to Impresse shall be sent to the attention of Xxxxx X. Xxxxxxx or such other
person as Impresse may from time to time designate Notices to Adobe shall be
sent to the attention of Xxxxxx X. Xxxx or such other person as Adobe may
from time to time designate with a copy to the Adobe Systems Incorporated
Legal Department, each at the address set forth above.
14.3 CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
regard to its conflict of laws roles.
14.4 MODIFICATION; WAIVER. No modification, amendment, supplement to
or waiver of any provision of this Agreement shall be binding upon the
parties hereto unless made in writing and duly signed by both parties. A
failure of either party to exercise any right provided for herein shall not
be deemed to be a waiver of any right hereunder. Any waiver must be in
writing and signed by the party against whom it is to be enforced.
14.5 ASSIGNMENT. Neither party shall have the right to assign or
sublicense the rights or obligations set forth in this Agreement without the
other party's written consent. Any
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attempted assignment of the rights or obligations set forth in this Agreement
without the other party's written consent shall be void.
14.6 SEVERABILITY. In the event that any provision of this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, the remaining provisions shall remain in full force and effect and
the affected provision shall be modified in a manner which comes closest to
the intention of the parties at the time the original provision was agreed
upon.
14.7 PRESS RELEASES. After the Effective Date, the parties will
issue one or more joint press releases to announce the relationship described
in this Agreement. A party that plans to issue a press release that mentions
the other party shall provide an advance copy of the press release to the
other party and obtain the approval of such party, not to be unreasonably
withheld.
14.8 FORCE MAJEURE. Neither party shall be liable to the other party
for any delay or default hereunder to the extent due to any cause beyond its
reasonable control if such party notifies the other of the cause and the
expected duration of such delay or default. All such obligations shall return
to full force and effect upon the termination of such cause. A "cause beyond
the reasonable control" of a party includes any act of God, act of any
government authority, industrial dispute, fire, explosion, accident, power
failure, flood, riot or war (declared or undeclared).
14.9 RELATIONSHIP BETWEEN THE PARTIES. There is no joint venture,
partnership, agency or fiduciary relationship existing between the parties
and the parties do not intend to create any such relationship by this
Agreement. Neither party shall have the authority to bind the other party.
14.10 ATTORNEY'S FEES. In any legal proceeding between the parties,
the prevailing party shall be entitled to recover attorney's fees and
expenses.
14.11 COUNTERPARTS. This Agreement may be signed in counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Agreement as of the Effective Date.
IMPRESSE CORPORATION ADOBE SYSTEMS INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxx Xxxxxxxx
----------------------------------- -----------------------------
Name: XXXXX XXXXXXX Name: XXX XXXXXXXX
--------------------------------- ---------------------------
Title: VP, MARKET & BUS. DEV. Title: SVP E-BUSINESS
-------------------------------- --------------------------
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EXHIBIT A
ADOBE MARKS
ADOBE
THE ADOBE LOGO
12
EXHIBIT B
IMPRESSE MARKS
[LOGO]
13
EXHIBIT C
PRIVACY STATEMENT
TO BE MUTUALLY AGREED UPON
14
EXHIBIT D
MASTER AGREEMENT FOR MUTUAL NON-DISCLOSURE OF INFORMATION
15
ADOBE SYSTEMS INCORPORATED
MASTER AGREEMENT
FOR
MUTUAL DISCLOSURE OF INFORMATION
Effective Date: NOV / 10 / 1999
(Month Day Year)
This Agreement governs the disclosure of information by and between
IMPRESSE CORP. (ENTER COMPANY NAME) having a principal place of business or
residing at 0000 X. XXXX XXX, XXXXXXXXX XX 00000 (the "Company") and Adobe
Systems Incorporated and its subsidiaries and affiliates, having a principal
place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 ("Adobe").
1. "Confidential Information" as used in this Agreement shall mean any and
all technical and non-technical information including patent, trade
secret, and proprietary information, techniques, sketches, drawings,
models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programs, software source documents, and formulae
related to the current, future and proposed products and services of
each of the parties, and includes, without limitation, their respective
information concerning research, experimental work, development, design
details and specifications, engineering, financial information,
procurement requirements, purchasing, manufacturing, customer lists,
business forecasts, sales and merchandising, and marketing plans and
information.
2. If the Confidential Information is contained in a writing, it will be
marked as Confidential or proprietary information of the disclosing
party. If the Confidential Information is disclosed orally or visually,
it shall be identified as such at the time of disclosure and confirmed
in a writing to the recipient within 30 days of such disclosure.
3. Each of the parties agrees that it will not make use of, disseminate,
or in any way disclose any Confidential Information of the other party
to any person, firm or business, except to the extent necessary for
negotiations, discussions, and consultations with personnel or
authorized representatives of the other party and any purpose the other
party may hereafter authorize in writing. Furthermore, the existence of
any business discussions, negotiations or agreements in progress
between the parties shall not be released to any form of public media
without approval of both parties.
4. Each of the parties agrees that it shall disclose Confidential
Information of the other party only to those of its employees who need
to know such information and who have previously agreed,
MASTER AGREEMENT FOR MUTUAL DISCLOSURE OF INFORMATION 1
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either as a condition to employment or in order to obtain the
Confidential Information, to be bound by terms and conditions
substantially similar to those of this Agreement.
5. Each of the parties agrees that it shall treat all Confidential
Information of the other party with the same degree of care as it
accords to its own Confidential Information, and each of the parties
represents that it exercises reasonable care to protect its own
Confidential Information.
6. Each of the parties agrees that it will not modify, reverse engineer,
decompile, create other works from, or disassemble any software
programs contained in the Confidential Information of the other party
unless otherwise specified in writing by the disclosing party.
7. Each party's obligations under PARAGRAPHS 3, 4, and 5 with respect to
any portion of the other party's Confidential Information shall
terminate when the party to whom Confidential Information was disclosed
(the "Recipient") can document that: (a) it was in the public domain at
the time it was communicated to the Recipient by the other party; (b)
it entered the public domain subsequent to the time it was communicated
to the Recipient by the other party through no fault of the Recipient;
(c) it was in the Recipient's possession free of any obligation of
confidence at the time it was communicated to the Recipient by the
other party; (d) it was rightfully communicated to the Recipient free
of any obligation of confidence subsequent to the time it was
communicated to the Recipient by the other party; (e) it was developed
by employees or agents of the Recipient independently of and without
reference to any information communicated to the Recipient by the other
party; (f) it was communicated by the other party to an unaffiliated
third party free of any obligation of confidence; (g) the communication
was in response to a valid order by a court or other governmental body,
was otherwise required by law, or was necessary to establish the rights
of either party under this Agreement; or (h) it was not legended as
Confidential Information of the disclosing party and if disclosed
orally or visually, it was not identified as Confidential Information
of the disclosing party at the time of such communication and followed
by a writing within thirty (30) days of such disclosure.
8. All materials (including, without limitation, documents, drawings,
models, apparatus, sketches, designs and lists) furnished to one party
by the other, and which are designated in writing to be the property of
such party, shall remain the property of such party and shall be
returned to it promptly at its request, together with any copies
thereof.
9. Neither party shall communicate any information to the other in
violation of the proprietary rights of any third party.
10. Neither party acquires any licenses under any intellectual property
rights of the other party under this Agreement.
11. Neither party shall export, directly or indirectly, any technical data
acquired from the other pursuant to this Agreement or any product
utilizing any such data to any country for which the
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U.S. Government or any agency thereof at the time of export requires
an export license or other government approval without first obtaining
such license or approval.
12. Neither party will assign or transfer any rights or obligations under
this Agreement without the prior written consent of the other party.
13. This Agreement shall govern all communications between the parties that
are made during the period from the effective date of this Agreement to
the date on which either party receives from the other written notice
that subsequent communications shall not be so governed, provided,
however, that each party's obligations under PARAGRAPHS 3, 4 and 5 with
respect to Confidential Information of the other party which it has
previously received shall continue unless and until terminated pursuant
to PARAGRAPH 7.
14. This Agreement shall be governed in all respects by the laws of the
United States of America and by the laws of the State of California as
such laws are applied to agreements entered into and to be performed
entirely within California between California residents.
15. This Agreement may only be changed by mutual agreement of authorized
representatives of the parties in writing.
16. All notices or reports permitted or required under this Agreement
shall be in writing and shall be by personal delivery, telegram,
telex, telecopier, facsimile transmission or by certified or
registered mail, return receipt requested, and shall be deemed given
upon personal delivery, five (5) days after deposit in the mail, or
upon acknowledgment of receipt of electronic transmission. Notices
shall be sent to the addresses set forth at the end of this Agreement
or such other address as either party may specify in writing. If
notice is sent to Adobe, it shall be sent to the signatory, with a
copy to its General Counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement in
duplicate as of the date first written above.
"Adobe" "Company"
ADOBE SYSTEMS INCORPORATED IMPRESSE CORPORATION
*SIGNATURE OF OFFICER IS REQUIRED. ----------------------------------
Signature: /s/ XXX XXXXXXXX Signature: /s/ XXXX X. XXXXXX
----------------------- -------------------------
Print Print
Name: XXX XXXXXXXX Name: XXXX X. XXXXXX
----------------------- -----------------------------
Title: SR. VP E-BUSINESS Title: CHIEF TECHNOLOGY OFFICER
----------------------- ----------------------------
000 Xxxx Xxxxxx Address: 0000 X. XXXX XXX
----------------------------
Xxx Xxxx, XX 00000-0000 XXXXXXXXX, XX 00000
------------------------------------
------------------------------------
3
18
EXHIBIT E
IMPRESSE AND ADOBE DIRECT COMPETITORS
ONLINE PRINT PROCUREMENT SERVICE PROVIDERS
NOOSH
COLLABRIA
PRINTCHANNEL
MEDIAFLEX
IMAGEX
ADOBE NAMED COMPETITORS
QUARK
MACROMEDIA
MICROSOFT
XXXXXXXXXXX.XXX
19
