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Exhibit 10(a)
CONFIDENTIAL TREATMENT - Asterisked material has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
SERVICES AND LICENSE AGREEMENT
This Services and License Agreement (this "Agreement") is made as of September
15, 1996 (the "Agreement Date") by and among Intuit Inc., a Delaware corporation
("Intuit"), Intuit Services Corporation, a Delaware corporation ("Sub") and
CheckFree Corporation, a Delaware corporation ("CheckFree").
RECITALS
A. Intuit, Sub, CheckFree and CheckFree Acquisition Corporation II, a
wholly-owned subsidiary of CheckFree ("Acquisition"), are entering into that
certain Agreement and Plan of Merger, dated of even date herewith (the "Plan"),
pursuant to which Acquisition will be merged into Sub in a statutory merger (the
"Merger") and Sub will become a wholly-owned subsidiary of CheckFree.
B. Following the Closing of the Merger, it is recognized by Intuit, Sub
and CheckFree that certain training and services to be provided by Intuit will
be required to support post-Merger operations of Sub, and certain services of
Sub will be required to support post-Merger operations of Intuit. It is
intended that Intuit and Sub will perform such services and training as
described herein.
C. Following the Closing of the Merger, Intuit, Sub and CheckFree also
desire to enter into certain business and licensing arrangements with each
other, all pursuant to the terms and conditions described herein.
D. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, the parties to this Agreement agree as follows:
1. DEFINITIONS
1.1 "Assignment and License Agreement" means that certain Assignment
Agreement, dated of even date herewith, by and between Intuit and Sub.
1.2 " Authorization Agreement" means a written agreement between Intuit
and a Bank or Financial Institution authorizing a Financial Institution or Bank
to provide Electronic Banking and Billpay Services through Intuit Front End
Products.
1.3 "Bank Agreements" means the agreements between Sub and certain
financial
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institutions (each, a "Bank", and collectively, the "Banks"), as listed in
Exhibit A hereto. "Banks" means only those financial institutions listed in
Exhibit A.
1.4 "CheckFree Direct" means the xxxx payment services offered directly
by CheckFree to end users via features in the Intuit Front-End Products.
1.5 "CheckFree Marks" means CheckFree trademarks, trade names, logos
and designations.
1.6 "CheckFree Protocols" means the data standards and transport
mechanisms for xxxx payment transactions used by CheckFree at the Effective
Time.
1.7 "Confidential Information" means: (i) CheckFree SECAPL Technology,
Intuit Technology, Sub Technology, Intuit Product User Information; (ii) any
business or technical information of any party, including but not limited to any
information relating to any party's product plans, designs, costs, product
prices and names, finances, marketing plans, business opportunities, personnel,
research, development or know-how that is designated by the disclosing party to
the receiving party hereto as "confidential" or "proprietary" and, if orally
disclosed, reduced to writing by the disclosing party within thirty (30) days of
such disclosure; (iii) Intuit's Sub Direct customer list provided to CheckFree
under the terms of Section 3.8 and any information concerning the names and
addresses of the Sub Direct customers held by Sub, and (iv) the terms and
conditions of this Agreement. Confidential Information shall not include
information that: (a) is or becomes generally known or available by publication,
commercial use or otherwise through no fault of the receiving party; (b) is
known to the receiving party at the time of disclosure without violation of any
confidentiality restriction and without any restriction on the receiving party's
further use or disclosure; (c) is independently developed by the receiving
party; or (d) is received from a third party not under an obligation of
non-disclosure with respect to such information.
1.8 "Connectivity Term" means the period beginning with an initial term
of three (3) years from the Effective Time, and continuing thereafter for
consecutive one (1) year terms, unless either party notifies the other at least
six (6) months prior to the end of any term that it desires to terminate the
Services.
1.9 "Cooperative Marketing Agreement" means that certain agreement,
dated as of September 1, 1996, between CheckFree and Intuit attached hereto as
Appendix 1.
1.10 "Current Term" means the initial term (or current renewal term as
of the Effective Time), but not any subsequent terms, of a Bank Agreement.
1.11 "Customer Database" is defined in Exhibit B hereto.
1.12 "Derivative Works" means: (i) for copyrightable or copyrighted
material, any
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translation, abridgment, revision, modification, 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 laws.
1.13 "Direct Costs" means the direct costs and allocated facilities
costs associated with the performance of any services performed by any party to
any other party pursuant to this Agreement, including but not limited to the
reasonable costs and expenses incurred to retain any employees and/or
consultants necessary to provide services pursuant to Sections 4 and 5 below (if
the Receiving Party consents to such additional costs), but excluding any
indirect management and administrative overhead costs.
1.14 "Electronic Banking and Billpay Services" means services
substantially similar to and including the bank demand deposit account data
access and downloads, credit card data access and downloads and xxxx payment
services provided by Sub and CheckFree as of the Effective Time thereto.
1.15 "Effective Date" is defined in Section 2.3 of the Agreement.
1.16 "Effective Time" means the date of consummation of the Merger by
the filing of a properly executed certificate of merger with the Secretary of
State of the State of Delaware.
1.17 "Financial Institutions" means all FDIC chartered institutions,
all FSLIC chartered institutions, all investment banking and brokerage houses
and mutual funds providing financial services to individuals, and any entities
related to such institutions, houses and funds.
1.18 "Guaranteed Obligations" means (i) all payments and other charges
due Intuit from Sub pursuant to Section 8 of the Agreement, and (ii) any and all
obligations under this Agreement that may result in the payment of moneys by Sub
to Intuit, and (iii) all costs and expenses of Intuit (including reasonable
attorneys' fees and expenses) incurred in enforcing CheckFree's obligations to
pay such amounts as set forth in Section 8 of the Agreement.
1.19 "Indemnified Party" means the party entitled to receive
indemnification from the other party under Section 10 of the Agreement.
1.20 "Indemnifying Party" means the party obligated to provide
indemnification to the other party under Section 10 of the Agreement.
1.21 "Intellectual Property Rights" means patent rights (including
patent applications and disclosures), rights of priority, copyrights, mask work
rights, Moral Rights, trade names, trademarks, service marks and registrations
and applications therefor, trade secrets, know-how, mask work rights, rights in
trade dress and packaging, goodwill and all other intellectual property
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rights and proprietary rights recognized in any country or jurisdiction in the
world.
1.22 "Interfaces" means PC-based and World Wide Web-based user
interfaces developed by Intuit.
1.23 "Intuit Customers" means end users excluding Financial
Institutions and CheckFree Direct customers
1.24 "Intuit Front-End Products" means current and future versions of
software products and services marketed, distributed or made available by Intuit
that enable a user to obtain Electronic Banking and Billpay Services, including
but not limited to "Quicken," "QuickBooks" and "BankNOW."
1.25 "Intuit Product User Information" means any information about the
users of Intuit's products that Sub obtains or is able to obtain as a result of
the services it is providing Intuit under this Agreement, including all
information provided pursuant to paragraph 3.3.7, below, including but not
limited to users' names, addresses, financial information and purchasing
patterns. Intuit Product User Information shall be owned exclusively by Intuit.
Sub and CheckFree shall be authorized to use such Intuit Product User
Information only for purposes of supporting Electronic Banking and Billpay
Services provided through Intuit Front-End Products.
1.26 "Intuit Protocols" means all relevant data standards and transport
mechanisms (including both real time and batch protocols) for banking data and
transactions, investment data and transactions, and xxxx payment and presentment
data and transactions used or under development by Intuit at the Effective Time
and the OpenExchange.
1.27 "Intuit Protocols Technology" means all technology and technical
information necessary for Sub and CheckFree to develop products and services
using the Intuit Protocols.
1.28 "Intuit Technology" means the software, source code and object
code, technology, designs, know-how, algorithms, procedures, techniques,
solutions, and work-arounds embodied by, incorporated in or relating to any
assets, products or services of Intuit owned by or licensed to Intuit.
1.29 "Investor Insight" is defined in Exhibit C hereto.
1.30 "MarketPlace" is defined in Exhibit D hereto.
1.31 "Moral Rights" means any right to claim authorship to a work or to
object to any distortion, mutilation or other modification or other derogatory
action in relation to a work, whether or not such would be prejudicial to the
author's reputation, and any similar right, whether existing under common or
statutory law of any country in the world or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a "moral
right."
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1.32 "OpenExchange" means the World Wide Web-based protocol intended to
be developed by Intuit for commercial use [* Portions have been omitted and
filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.].
1.33 "PPU" means the "Personal Portfolio Update" as described in
Exhibit E hereto.
1.34 "Performing Party" means the party providing the services it is
required to perform under this Agreement.
1.35 "Processing Systems" means back-end processing systems developed
by CheckFree and Sub.
1.36 QAC" means the "Quicken Affinity Card" service, as described in
Exhibit F hereto.
1.37 "QFN" means the "Quicken Financial Network" World Wide Web-based
service, as described in Exhibit G hereto.
1.38 "Receiving Party" means the party receiving the services to be
performed under this Agreement.
1.39 "S&P XxxXxxxx Feed" is defined in Exhibit I.
1.40 "SECAPL" means the World Wide Web-based securities portfolio
tracking service, as described in Exhibit K hereto.
1.41 "Services" means all of the services to be provided by Intuit and
Sub as described in Section 3 of the Agreement.
1.42 "Sub Direct" means the xxxx payment services offered directly by
Sub to end users via features in the Intuit Front-End Products.
1.43 "Sub Interface Technology" means all technology and technical
information necessary for Intuit to develop Intuit Front-End Products
incorporating interfaces to the Sub Processor.
1.44 "Sub Marks" means Sub trademarks, trade names, logos and
designations.
1.45 "Sub Processor" means the Unix Hub, Tandem and all other hardware
and software operated by Sub to allow Sub to process Electronic Banking and
Billpay Services and other similar services. Sub Processor does not include any
of CheckFree's processing services in existence as of the Effective Time,
including but not limited to the CheckFree xxxx payment service.
1.44 "Sub Protocols" means the data standards and transport mechanisms
(including
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both real time and batch protocols) for banking data and transactions,
investment data and transactions, and xxxx payment and presentment data and
transactions used by and/or under development by Sub at the Effective Time.
1.45 "Sub Interface Technology" means all technology and technical
information necessary for Intuit to develop Intuit Front-End Products
incorporating interfaces to the Sub Processor.
1.46 "Support Period" means the period beginning with the expiration of
the Connectivity Term and ending two years thereafter.
1.47 "Transferred Direct Customer" means a CheckFree Direct user who
has changed to a Sub Direct user during the term of the Cooperative Marketing
Agreement.
1.48 "Tandem" means the Tandem servers operated by Sub and used by Sub
to process Electronic Banking and Billpay Services and other similar services.
1.49 "Unix Hub" means the bank of Unix servers operated by Sub and used
by Sub to process Electronic Banking and Billpay Services and other similar
services.
2. RELATIONSHIP OF THE PARTIES AND EFFECTIVE DATE
2.1 Independent Contractors. Each party is an independent contractor to
the other parties and is not an agent or employee of, and has no authority to
bind, any other party by contract or otherwise. Each Performing Party will
perform its services under this Agreement under the general direction of the
Receiving Party (or parties), but the Performing Party will determine, in its
sole discretion, the manner and means by which the Services are accomplished,
subject to the requirement that at all times the Performing Party comply with
applicable law and that the services are all performed according to written
specifications for such services. No Requesting Party has any right or authority
to control the manner or means by which the services are accomplished.
2.2 Agreement to Cooperate in Good Faith; Certain Obligations.
2.2.1 General. The parties recognize that each party will not
be able to receive the benefit of the bargain of this Agreement unless all
parties cooperate in good faith with each other regarding the provision of the
services contracted for herein. Each party agrees that it will use good faith
efforts to (i) advise as soon as reasonably practicable the other parties, as
applicable, regarding such party's plans to terminate, significantly increase or
significantly decrease any services that such party provides or contracts for
hereunder, (ii) not unreasonably withhold or delay any consents that are
required hereunder and (iii) take any other actions to prevent the other parties
from not receiving the full benefit of the services such parties will
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receive hereunder, including but not limited to resolving any ambiguity
regarding the interpretation of this Agreement.
2.2.2 Services to be Provided Pursuant to Section 4 and 5. The
parties recognize that to prevent interruptions in businesses and services
currently being provided by Intuit and Sub, each of Intuit and Sub must continue
to provide services to the other for certain periods following the Effective
Time, as described in Sections 4 and 5. The parties desire to allow the
Receiving Party to determine how long and to what extent such services will be
provided. To prevent any interruption to the business of the Performing Party,
the parties agree as follows:
(i) As described in Sections 4 and 5, the services to
be provided thereunder will continue after the Effective Time to be provided at
the levels they currently are being provided (or are scheduled to be provided
pursuant to Intuit's budget for its fiscal year ending July 31, 1997), unless
otherwise requested by the Receiving Party. If a Receiving Party desires to
change the level of services to be provided (other than insignificant changes),
it must notify the Performing Party at least sixty (60) days prior to the
effective date of the desired change. The parties then will cooperate in good
faith to determine how best to effectuate the desired change. In no event will a
Receiving Party be obligated to reimburse a Performing Party for any services at
any levels greater than those agreed to be provided under this Agreement without
the Receiving Party's approval.
(ii) After the Agreement Date, a Performing Party
will not hire any additional employees who will provide any services pursuant to
Sections 4 and 5 unless it has received the approval of the Receiving Party, and
such approval will not be unreasonably withheld or delayed. Notwithstanding the
foregoing, a Performing Party may hire any additional employees if it does not
receive the approval of the Receiving Party, but in such a case the Receiving
Party will not be obligated for the costs and expenses associated with such
employee pursuant to paragraph 2.2.2(iv)(A), below unless the Receiving Party
requests any such employee to provide it services.
(iii) In no event may a Receiving Party require a
Performing Party to change any service levels by reducing the number of the
Performing Party's employees providing services to the Receiving Party. This
provision shall not prevent the parties from agreeing in good faith to reduce
the number of employees providing any services pursuant to Sections 4 and 5.
(iv) From the Effective Time through July 31, 1997, a
Receiving Party will be obligated to reimburse the Performing Party for the
costs and expenses associated with (A) the number of the Performing Party's
employees providing services at the Agreement Date and any additional employees
providing services if such employees were approved pursuant to paragraph
2.2.2(ii), above and (B) any fixed expenses associated with the services to be
provided
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(i.e., expenses that would not be eliminated if the services to be provided were
diminished, modified or terminated).
(v) No later than April 30, 1997, each Receiving
Party will provide the corresponding Performing Party with a reasonably detailed
description of the services it desires to continue to receive after July 31,
1997. The description of such services should include proposed dates for any
change in the level of service, including complete termination of the service.
2.2.3 Employees. After the Agreement Date, each Receiving
Party shall have the right, but not the obligation, to solicit any employee of
the Performing Party providing services to the Receiving Party pursuant to this
Agreement to become an employee of the Receiving Party. Each party agrees that,
except as provided in the foregoing sentence, until the first (1st) anniversary
of the Effective Time, it will not solicit any employee of the other parties to
become an employee of such party, provided nothing herein shall prevent Sub and
CheckFree from soliciting each other's employees.
2.2.4 Controlling Provision. To the extent of any conflict
between any provision in this Section 2 and any provision in any other section
of this Agreement, the provision in this Section 2 shall control.
2.3 Effective Date. Except for Sections 2.2 and 4.10, which shall
become effective at the Agreement Date, and as otherwise provided herein, this
Agreement shall become effective at and as of the Effective Time. This Agreement
shall be void if and when the Plan is terminated for any reason.
3. CONNECTIVITY RELATIONSHIP
3.1 Sub and CheckFree Services and Obligations. Intuit recognizes that
CheckFree and Sub may alter their business relationship in the future whereby
certain businesses and services currently performed or currently proposed to be
performed by Sub may be performed by CheckFree, or alternatively, certain
businesses and services currently performed or currently proposed to be
performed by CheckFree may be performed by Sub. Intuit agrees that if Sub on the
one hand, and CheckFree, on the other hand, is unable to perform any of its
affirmative obligations (but not its negative covenants) pursuant to Sections
3.3 and 3.5 (and any corresponding obligations under this Agreement),
respectively, as a result of a change in the business relationship between Sub
and CheckFree, such affirmative obligations may be performed by CheckFree and
Sub, respectively.
3.2 Description of Business Relationship. Intuit and Sub desire to
continue the current relationship between the parties whereby users of Intuit's
products have the ability to obtain Electronic Banking and Billpay Services from
Sub or CheckFree. Intuit, Sub and
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CheckFree also desire to cooperate to develop mutually beneficial business
relationships, all pursuant to the following sections:
3.3 Sub Services and Obligations. Unless otherwise specified in this
Agreement, during the Connectivity Term, Sub will provide the following:
3.3.1 Processing Services. Sub will continue to provide
Electronic Banking and Billpay Services through the Intuit Protocols and any
enhancements thereto that Sub supports pursuant to paragraph 3.3.2, below, to
users of Intuit Front-End Products. Sub will provide the Electronic Banking and
Billpay Services at a high level of quality, which in no event may be lower than
(i) the level of quality Sub is providing to such users during the ninety (90)
day period ending at the Effective Time and (ii) the level of quality Sub
provides to any third parties for similar or identical services during the
Connectivity Term.
3.3.2 Support of Intuit Technology. Sub will take the
following actions to support the proprietary technology of Intuit:
(a) Until the earlier of (i) the termination of the
Connectivity Term or (ii) the fifth (5th) anniversary of the Effective Time, Sub
will implement and support in the Sub Processor (or such other processor used by
Sub to provide Electronic Banking and Billpay Services), as soon as practicable,
the Intuit Protocols.
(b) Until the earlier of (i) the termination of the
Connectivity Term or (ii) the fifth (5th) anniversary of the Effective Time, Sub
will use best efforts to provide, as soon as practicable, services that support
all of the features of the Intuit Protocols that are supported by Intuit from
time to time in the Intuit Front-End Products.
(c) Sub will use commercially reasonable efforts, if
Sub determines it is in its and/or CheckFree's best interest, to implement and
support (including providing complementary services for) any other data
standards and transport mechanisms (including both real time and batch
protocols) developed by Intuit.
(d) Sub will cooperate with Intuit to implement the
actions it takes pursuant to this Section 3.3.2, provided Intuit cooperates with
Sub and provides Sub with all information reasonably necessary, and within a
reasonable time, to allow Sub to take such actions.
3.3.3 [* Portions have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.]
3.3.4 Technical Information. Sub agrees to provide Intuit with
all Sub Interface
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Technology, as such updates become available from Sub, Sub will provide Intuit
with all Sub Interface Technology and the customer support information necessary
to complete user manual documentation and customer support and on-line help. Sub
agrees to consult with Intuit to assist Intuit with the development and testing
by Intuit of Intuit Front-End Products to utilize Sub's Electronic Banking and
Billpay Services. This paragraph 3.3.4 does not require Sub to perform any
development or other activities on Intuit's behalf.
3.3.5 Customer and Technical Support. Sub shall be responsible
for administering and supporting the Electronic Banking and Billpay Services.
Sub agrees to offer and provide support for users of Intuit products, including
but not limited to Intuit Front-End Products, who subscribe to or otherwise
utilize Sub's Electronic Banking and Billpay Services at least at the same level
and quality, and on terms and conditions (including fees) no less favorable than
those (i) Sub is providing (or is being provided on behalf of Sub) to such users
during the ninety (90) day period ending at the Effective Time and (ii) which
Sub and/or CheckFree provides to other users of Sub's Electronic Banking and
Billpay Services for functionally equivalent services. Notwithstanding the
foregoing, Sub shall have the right to refer customer queries to Intuit's
customer support services.
3.3.6 Marketing. Without imposing any affirmative obligation
for Sub to market the Electronic Banking and Billpay Services functionalities of
Intuit's products and/or services, to the extent that Sub does elect to market
such functionalities, Sub agrees that it will market and promote such
functionalities in a manner no less favorable than Sub's or CheckFree's
promotion of similar functionalities of any products or services from third
parties that are competitive with Intuit's products and/or services.
3.3.7 Reports. Except as otherwise prohibited by law or in any
agreements between Sub (and/or CheckFree) and any third parties that are in
effect at the Effective Time, within fifteen (15) days after each calendar
month, Sub will deliver to Intuit a report detailing the use of the Electronic
Banking and Billpay Services by users of Intuit's products during each such
month. The report will contain the information described in Exhibit B hereto.
3.3.8 Authorized Reseller; [* Portions have been omitted and
filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.]. Sub acknowledges that Intuit intends to
sell Sub's Electronic Banking and Billpay Services, including but not limited to
Sub Direct, to Intuit Customers whereby Intuit Customers would contract with
(and agree to pay) Intuit to receive such Electronic Banking and Billpay
Services, and Intuit then would contract with (and agree to pay) Sub for Sub to
make such services available to the Intuit Customers. Intuit would not act as a
"finder" for Sub, and Sub would not enter into agreements directly with the
Intuit Customers for such services. Sub agrees that it will take all actions
necessary to assist Intuit to provide such services to Intuit Customers, and in
furtherance thereof Sub hereby (i) authorizes Intuit, directly or indirectly, to
re-sell (or otherwise solicit persons and entities to use) all Electronic
Banking and Billpay Services offered at anytime by Sub to Intuit Customers, but
such direct or indirect re-sale shall exclude Financial Institutions and
CheckFree
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Direct users and (ii) agrees that it will make available and sell to Intuit
[*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.]. For any
and all of the foregoing, Sub shall be solely responsible and liable for all
applicable regulatory compliance obligations required of providers of such
services. The provisions of this paragraph 3.3.8 shall apply to all current and
future Sub-Direct users, except Sub agrees that it will continue to contract
with all current and future Sub-Direct users until such time as Sub and Intuit
mutually agree that Intuit shall contract directly with future Sub-Direct users.
Unless otherwise agreed to between Sub and Intuit, no Sub-Direct users who
contract directly with Sub will be required to contract directly with Intuit at
anytime. The provisions of this Section 3.3.8 are not intended to modify or
limit in any manner the noncompetition provisions of the Plan.
3.3.9 Provision of Sub's Electronic Banking and Billpay
Services to Third Parties Using Intuit Products or Services. Sub agrees that it
will make available and sell to any and all third parties, including but not
limited to Financial Institutions using (or whose customers use) Intuit
Front-End Products, all Electronic Banking and Billpay Services offered at
anytime by Sub [*Portions have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.].
3.3.10 No Disparagement. Sub will not disparage Intuit's
products or services in connection with Sub's marketing, promotion, advertising
or otherwise.
3.4 Intuit Services and Obligations. Unless otherwise specified in this
Agreement, during the Connectivity Term, Intuit will provide the following:
3.4.1 Support of Sub and CheckFree Technology. Intuit will
take the following actions to support the proprietary technology of Sub and
CheckFree:
(a) Intuit will implement and support in all versions
of Quicken containing Electronic Banking and Billpay Services features to be
released in the fall of 1997 the Sub Protocols and the CheckFree Protocols.
Notwithstanding the foregoing, Intuit will have no obligation to take any
actions with respect to the Sub Protocols and the CheckFree Protocols pursuant
to this paragraph 3.4.1(a), and with respect to the CheckFree Protocols pursuant
to paragraph 3.4.1(b), if Intuit and CheckFree implement and support the
OpenExchange and appropriate user interface features in such versions of Quicken
whereby such protocol and user
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interface features are substantially similar to those that Intuit would have
implemented and supported for the CheckFree Protocols and Intuit includes a
conversion wizard that allows all CheckFree Direct customers upgrading to
versions of Quicken to be released in the fall of 1997 or thereafter to convert
seamlessly to the OpenExchange. The provisions of this paragraph 3.4.1(a) are
not intended to modify or limit in any manner the noncompetition provisions of
the Plan. Nothing in this Agreement, including but not limited to the provisions
of this paragraph 3.4.1(a), shall authorize or otherwise permit CheckFree to
provide CheckFree Direct in new versions of Quicken released after the term of
the Cooperative Marketing Agreement or any extension thereof. The parties agree
that concurrently with the execution of this Agreement the parties shall enter
into the amendment attached hereto as Appendix 2 extending the term of the
Cooperative Marketing Agreement through September 30, 2001. Such amendment shall
also provide that if the Connectivity term terminates prior to September 30,
2001 then (i) CheckFree shall not be entitled to offer CheckFree Direct in new
versions of Quicken released subsequent to such termination, and (ii) the terms
of the Cooperative Marketing Agreement shall only apply to versions of Quicken
in existence at the time of such termination.
(b) Intuit will make all appropriate changes to the
user interface features of the Quicken products described in paragraph 3.4.1(a),
above, to incorporate the features of the Sub Protocols, and the CheckFree
Protocols.
(c) Intuit will use commercially reasonable efforts,
if Intuit determines it is in its best interest, to (i) implement and support
new data standards and transport mechanisms transport mechanisms (including both
real time and batch protocols) used by Sub and/or CheckFree and (ii) make
appropriate changes to user interfaces of Intuit Front-End Products as
necessary.
(d) Intuit will cooperate with Sub and/or CheckFree
to implement the actions it takes pursuant to this Section 3.4.1, provided Sub
and/or CheckFree cooperate with Intuit and provide Intuit with all information
reasonably necessary, and within a reasonable time, to allow Intuit to take such
actions.
3.4.2 [*Portions have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.]
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3.4.3 Technical Information. Intuit agrees to provide Sub
and/or CheckFree with the Intuit Protocols Technology, as such updates become
available from Intuit. Intuit will provide Sub and CheckFree with all Intuit
Protocols Technology and the customer support information necessary to complete
user manual documentation and customer support and on-line help. Intuit agrees
to consult with Sub and CheckFree to assist Sub and CheckFree with the
development and testing by Sub and CheckFree of Sub's and/or CheckFree's
Electronic Banking and Billpay Services. This paragraph 3.4.3 does not require
Intuit to perform any development or other activities on Sub's or CheckFree's
behalf.
3.4.4 Customer and Technical Support. Intuit shall be solely
responsible for supporting Intuit Front-End Products, but excluding those
features therein which relate to Sub's and/or CheckFree's Electronic Banking and
Billpay Services accessible through such products. Intuit agrees to offer and
provide support for users of Intuit Front-End Products, who subscribe to or
otherwise utilize Sub's and/or CheckFree's Electronic Banking and Billpay
Services at least at the same level, and on terms and conditions (including
fees) no less favorable than those (i) Intuit is providing (or is being provided
on behalf of Intuit) to such users during the ninety (90) day period ending at
the Effective Time and (ii) which Intuit provides to users of Intuit's products
and/or services who subscribe to or otherwise utilize Electronic Banking and
Billpay Services provided by any entity other than Sub or CheckFree.
Notwithstanding the foregoing, Intuit shall have the right to refer customer
queries to Sub's and/or CheckFree's customer support services.
3.4.5 [*Portions have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.]
3.4.6 No Disparagement. Intuit will not disparage Sub's or
CheckFree's products or services in connection with Intuit's marketing,
promotion, advertising or otherwise.
3.5 CheckFree Obligations. Unless otherwise specified in this
Agreement, during the Connectivity Term, CheckFree will provide the following:
3.5.1 [*Portions have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.]
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3.5.2 Authorized Reseller; [*Portions have been omitted and
filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.]. CheckFree acknowledges that Intuit intends
to sell CheckFree's Electronic Banking and Billpay Services to Intuit Customers
whereby Intuit Customers would contract with (and agree to pay) Intuit to
receive such services, and Intuit then would contract with (and agree to pay)
CheckFree for CheckFree to make such Electronic Banking and Billpay Services
available to the Intuit Customers. Intuit would not act as a "finder" for
CheckFree, and CheckFree would not enter into agreements directly with the
Intuit Customers for such services. CheckFree agrees that it will take all
actions necessary to assist Intuit to provide such services to Intuit Customers,
and in furtherance thereof CheckFree hereby (i) authorizes Intuit, directly or
indirectly to re-sell solely to Intuit Customers (or otherwise solicit Intuit
Customers to use) all Electronic Banking and Billpay Services offered at anytime
by CheckFree, and (ii) agrees that it will make available and sell to Intuit,
[*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.]. In no
event shall Intuit's right to re-sell CheckFree's Electronic Banking and Billpay
Services on an indirect basis enable Intuit to re-sell such services to
Financial Institutions. For any and all of the foregoing, CheckFree shall be
solely responsible and liable for all applicable regulatory compliance
obligations required of providers of such services. The provisions of this
paragraph 3.5.2 shall not apply to any current or future CheckFree Direct users
except as provided in paragraph 3.5.3 below. The provisions of this paragraph
3.5.2 are not intended to modify or limit in any manner the noncompetition
provisions of the Plan and or any provision of the Cooperative Marketing
Agreement.
[*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.]
3.5.3 Conversion of CheckFree Direct Customers . Upon the
earlier of (i) the termination of the Cooperative Marketing Agreement due to
CheckFree's breach or (ii) the expiration of the term of the amended Cooperative
Marketing Agreement (September 30, 2001) all of the then existing CheckFree
Direct users will be converted to Intuit Customers (the "Converted Direct
Customers") in accordance with the provisions of paragraph 3.5.2 above.
CheckFree agrees that it will continue to contract with all Converted Direct
Customers until such time as CheckFree and Intuit mutually agree that Intuit
shall contract directly with such Converted Direct Customers. Unless otherwise
agreed to between CheckFree and Intuit, Converted Direct users who contracted
directly with CheckFree will not be required to contract directly with Intuit at
anytime. Intuit shall have the option of requiring Converted Direct Customers to
pay Intuit directly, or of requiring CheckFree to receive such payments on
Intuit's behalf and remitting to Intuit an amount equal to the payments received
less fees due
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CheckFree for processing services. In the latter case, payment will be made by
CheckFree to Intuit within thirty (30) days after the end of each calendar month
for which a payment is due and shall be accompanied by a detailed report
describing the basis for the payment.
3.5.4 Provision of CheckFree's Electronic Banking and Billpay
Services to Third Parties Using Intuit Products or Services. CheckFree agrees
that it will make available and sell to any and all third parties, including but
not limited to Financial Institutions using (or whose customers use) Intuit
Front-End Products, all Electronic Banking and Billpay Services offered after
the Effective Time by CheckFree [*Portions have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.].
3.5.5 No Disparagement. CheckFree will not disparage Intuit's
products or services in connection with CheckFree's marketing, promotion,
advertising or otherwise.
3.6 Exclusivity. Provided neither Sub nor CheckFree is in material
breach of any of its respective obligations arising under this Section 3, Intuit
agrees that it will not [*Portions have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.]. As used in this Section 3.6, the words "version" or "versions"
include any interim releases to such version or versions of software.
3.7 Non-Solicitation. Sub and CheckFree agree that, [*Portions have
been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.], neither Sub nor CheckFree
will [*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.].
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Intuit agrees that, [*Portions have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.] it will not [*Portions have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.].
3.8 Treatment of Transferred CheckFree Direct Customers. If a CheckFree
Direct Customer becomes a Transferred Direct Customer, CheckFree shall, through
the remainder of the term, continue to receive the revenues from such
Transferred Direct Customer's use of the same or similar Electronic Banking and
BillPayment Services used by such customer at the time of such change (revenues
for any additional services or increased functionality in such Electronic
Banking and BillPayment Services after the date of change shall belong to
Intuit). CheckFree acknowledges that the fees paid by Transferred Direct
Customers may differ from those paid by such customers when they were CheckFree
Direct customers. CheckFree shall pay Intuit a fee of [*Portions have been
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.]. These fees shall represent
fees that would otherwise be due under the Cooperative Marketing Agreement if
such Transferred Direct Customers had remained CheckFree Direct customers, and
CheckFree shall have no further payment obligations under the Cooperative
Marketing Agreement for such customers. All Transferred Direct Customers shall
be converted to Intuit Customers at the same time that all existing CheckFree
Direct Users are converted to Intuit Customers pursuant to Section 3.5.3. above.
Intuit shall provide CheckFree with a current list of Sub Direct customers
within fifteen (15) days of the Effective Time and shall update the list each
month during the term of the Cooperative Marketing Agreement. Within the fifteen
(15) day period following each month, CheckFree shall compare the list of Sub
Direct customers with its CheckFree Direct customer list and notify Intuit in
writing of the number of Transferred Direct Customers for such month. Within
fifteen days (15) of Intuit's receipt of such notice, Intuit shall remit to
CheckFree all revenues collected from such identified Transferred Customers less
the fees due from CheckFree. Thereafter, Intuit shall have the option of (i)
requiring Sub to collect payments on behalf of CheckFree from the identified
Transferred Direct Customers and requiring CheckFree to pay the above fees in
accordance with the payment terms of the Cooperative Marketing Agreement, or
(ii) receiving such payments on behalf of CheckFree and remitting to CheckFree
an amount equal to the payments received less fees due from CheckFree. In the
latter case, the payment will
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be made by Intuit to CheckFree within thirty (30) days after the end of each
month in which a payment is due and shall be accompanied by a detailed report
describing the basis for the payment.
Intuit's Sub Direct customer list and all updates thereto shall be
treated as Confidential Information under Section 11 and shall be used for no
other purpose except as described in this Section 3.8.
3.9 Connectivity Indemnification.
3.9.1. Duty to Indemnify. Each of Intuit, Sub and CheckFree
will indemnify, defend and hold harmless the other parties from and against all
claims, damages, losses, costs, liabilities and expenses, including court costs
and reasonable fees and expenses of attorneys, expert witnesses and other
professionals, arising out of, resulting from or attributable to any of the
services provided by such party (or the failure of such party to provide such
services where such party is obligated under this Agreement) directly or
indirectly to any end user customer pursuant to this Section 3, except to the
extent of the negligence of the party requesting indemnification pursuant to
this Section 3. In no event will any party be entitled to seek indemnification
from any other party under this Section 3 for any claim by an end user where
such party is not liable to such end user for such claim.
3.9.2 Indemnity Conditions. The indemnity conditions of
Section 10.2, below shall apply to the indemnification obligations of Intuit and
Sub pursuant to this Section 3.9.
3.10 Connectivity Term. Intuit and Sub will provide the Services during
the period of the Connectivity Term. During the Support Period, Intuit and Sub
will continue to provide the Services for all versions of Intuit Front-End
Products in existence at the termination of the Connectivity Term, provided
however, that any Service that was by its terms to be provided for a maximum of
5 years shall not be continued beyond such period. The [*Portions have been
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.] shall only apply to versions
of Intuit Front End Products in existence at such termination and shall not be
applied to compare Intuit's actions concerning such existing versions with its
actions concerning new versions released during the Support Period.
3.11 Strategic Relationship. Intuit, Sub and CheckFree will endeavor to
cooperate to build complementary products and services that offer end-to-end
solutions to end-users and Financial Institutions. Intuit will endeavor to
develop Interfaces. CheckFree and Sub will endeavor to develop Processing
Systems. Intuit, Sub and CheckFree will cooperate to identify opportunities that
will allow the parties to develop and market solutions that incorporate
Interfaces and Processing Systems, including Intuit's Interfaces for CheckFree's
Bank Street and PAWWS activities. In particular, Intuit will solicit advice from
and allow CheckFree to cooperate with and provide input to Intuit during
Intuit's development of the OpenExchange.
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4. SUB SERVICES
4.1 Facilities Support of QFN. From the Effective Time until the first
(1st) anniversary of the Effective Time, or such earlier date as determined
pursuant to Section 4.9, below, Sub will continue to provide all facilities
support for QFN, as described in Exhibit G.
4.2 Facilities Support of Investor Insight. From the Effective Time
until the first (1st) anniversary of the Effective Time, or such earlier date as
determined pursuant to Section 4.9, below, Sub will continue to provide all
facilities support for Investor insight, as described in Exhibit C.
4.3 S&P XxxXxxxx Feed. Intuit and Sub currently receive certain
financial information from S&P XxxXxxxx via a satellite receiver located at
Sub's facilities in Xxxxxx'x Grove, Illinois pursuant to an agreement between
Intuit and S&P XxxXxxxx. Intuit hereby agrees that it will continue to
sublicense to Sub at no cost to Sub the right to use such information until the
earlier to occur of (i) the date that Sub ceases to support the Sub Processor at
Sub's facilities or (ii) the date on which the initial term ceases of that
certain License Agreement for Home Banking Services, dated July 24, 1996,
between Sub and Microsoft Corporation. Until the earlier to occur of (x) such
time as Intuit removes the satellite receiver from Sub's facilities or (y) the
date on which the above sublicense will terminate, Sub agrees that it will
continue to provide facilities maintenance and support for the satellite
receiver and other hardware supporting the S&P XxxXxxxx Feed located at Sub's
facilities, as described in Exhibit I.
4.4 Support of QAC. From the Effective Time until the termination of
the Connectivity Term, or such earlier date as determined in good faith between
Sub and Intuit or pursuant to Section 4.9, below, Sub will continue to provide
all processing and related services for QAC, including but not limited to the
maintenance of the CompuServe connection and diskette manufacturing, to the same
extent as Sub provides similar services for Intuit Front-End Products, as
described in Exhibit F.
4.5 Support of PPU. From the Effective Time until the date that is the
last day of the eighteenth (18th) full month after the Effective Time, or such
earlier date as determined pursuant to Section 4.9, below, Sub will continue to
provide all facilities and systems operations support for PPU, as described in
Exhibit E.
4.6 Support of Customer Database. From the Effective Time until the
date that is the last day of the eighteenth (18th) full month after the
Effective Time, or such earlier date as determined pursuant to Section 4.9,
below, Sub will (i) continue to provide all facilities and operations support
for the Customer Database and (ii) provide Intuit with the Intuit Product User
Information, all as described in Exhibit B.
4.7 Support of MarketPlace. From the Effective Time until the date that
is the last
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day of the eighteenth (18th) full month after the Effective Time, or such
earlier date as determined pursuant to Section 4.9, below, Sub will continue to
provide all facilities and system operations support for MarketPlace, as
described in Exhibit D.
4.8 Administrative Support of and Access by Employees. For so long as
any assets of Intuit remain at Sub's premises, Sub will make its premises
reasonably available to Intuit employees and will provide reasonable support and
protection for such assets, subject to reasonable restrictions to protect the
ownership and confidentiality of all Confidential Information.
4.9 Early Termination of Sub Services.
4.9.1 By Intuit. At Intuit's sole discretion and for any
reason, Intuit may request Sub to terminate any or all of the services Sub
provides to Intuit under this Section 4 at any time prior to the termination
dates described above. For any such early termination, Intuit will provide Sub
notice at least sixty (60) days prior to the requested early termination date.
At the requested early termination date, Sub will discontinue providing the
terminated service and will take all other actions with respect to such service
described herein.
4.9.2 By Sub. If Sub discontinues operating the Unix Hub, Sub
may discontinue providing Intuit the services described in Sections 4.5 through
4.7, above, at the time Sub discontinues operating the Unix Hub, provided Sub
notifies Intuit at least sixty (60) days prior to the date Sub will discontinue
operating the Unix Hub. For purposes of the foregoing sentence, Sub shall not be
deemed to have discontinued operating the Unix Hub if Sub discontinues operating
the Unix Hub equipment at its current site but continues providing Electronic
Banking and Billpay Services through Unix Hub architecture.
4.10 Development of Sub Processor Enhancements. Beginning at the
Effective Time, Sub will use best efforts to complete the enhancements to the
Sub Processor, as described in Exhibit H. Sub acknowledges that time is of the
essence with respect to completion of these development efforts. Between the
Agreement Date and the Effective Time, Sub will use commercially reasonable
efforts to perform the planned and proposed enhancements to the Sub Processor as
set forth in Exhibit H.
5. INTUIT SERVICES TO SUB
5.1 Support of Unix Hub. Intuit and Sub recognize that as a result of
the Merger, it is in each party's respective interest to discontinue support of
the Unix Hub software currently being performed by Intuit and its licensors. To
prevent any interruption in Sub's use of the Unix Hub for Sub's services, both
Intuit and Sub desire that Intuit and its licensors continue to perform all
maintenance and support of the Unix Hub software until such time as Sub notifies
Intuit that Sub is able to perform this support itself (subject to certain third
party software maintenance and
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support agreements). This transition may begin prior to the Effective Time;
provided, however, if any CheckFree employees or consultants participate in the
training prior to the Effective Time, such employees and consultants shall
execute Intuit's standard non-disclosure agreement before accessing any Intuit
proprietary or confidential information. The parties desire to effectuate this
transition as follows:
5.1.1 Intuit Support and Training During Transition. During
the transition, Intuit will (i) support and maintain the Unix Hub software and
(ii) train Sub and CheckFree employees to support and maintain the Unix Hub
software, all as described in Exhibit J. Intuit and Sub acknowledge that time is
of the essence with respect to completion of the training.
5.1.2 Termination of Transition. Intuit and Sub anticipate
that the transition will take approximately one (1) year to complete after it
commences. The parties agree to use best efforts and cooperate closely with each
other to complete the transition as soon as possible. Sub shall have the sole
authority and obligation to determine when the transition has ended, and must
provide Intuit with notice at least sixty (60) days prior to the termination
date. After the termination of the transition, Intuit will have no obligation to
provide Sub with any additional support or training pursuant to this Section
5.1.
5.2 Marketing. From the Effective Time until July 31, 1997, Intuit will
provide marketing activities in a manner to be determined solely by Intuit on
behalf of Sub's Electronic Banking and Billpay Services. [*Portions have been
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.]
5.3 Customer and Technical Support. From the Effective Time until July
31, 1997, Intuit will continue to provide the customer and technical support it
currently is providing and plans to provide (as indicated in Intuit's budget for
the fiscal year ending July 31, 1997) on behalf of Sub's Electronic Banking and
Billpay Services.
5.4 Development of Enhancements to Intuit Front-End Products. Intuit
will use best efforts to complete the enhancements currently being developed for
the Intuit Front-End Products, as described in Exhibit H.
5.5 Administrative Support of and Access by Employees. For so long as
any assets of Sub remain at Intuit's premises, Intuit will make its premises
reasonably available to Sub employees and will provide reasonable support and
protection for such assets, subject to reasonable restrictions to protect the
ownership and confidentiality of all Confidential Information.
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6. CHECKFREE SECAPL SERVICES TO INTUIT
From the Effective Time until the fifth (5th) anniversary of the Effective Time,
CheckFree will provide the SECAPL Services described in Exhibit K.
7. LICENSES
7.1 Intuit Licenses to Sub.
7.1.1 Intuit Technology License. Subject to the terms and
conditions of this Agreement, Intuit hereby grants to Sub a non-exclusive,
limited, royalty-free license during the Connectivity Term and Support Period to
use internally any Intuit Technology provided by Intuit to Sub specifically for
purposes of this Agreement solely for the purposes of performing Sub's
obligations under this Agreement. This license shall terminate at the
termination of the Support Period.
7.1.2 Trademark License. Intuit hereby grants Sub a
non-exclusive, worldwide, royalty-free license during the Connectivity Term and
Support Period to use any Intuit trademarks, trade names, logos and designations
(collectively, the "Intuit Marks") provided by Intuit to Sub solely in
connection with Sub's performance of its obligations under this Agreement, and
subject to and in accordance with the Intuit Xxxx usage guidelines to be
provided by Intuit to Sub, which guidelines may be modified from time to time in
writing by Intuit. This license shall terminate at the termination of the
Support Period.
7.1.3 License to Connect to Intuit Front-End Products. Intuit
hereby grants to Sub and CheckFree a limited, worldwide license right to connect
Sub's and CheckFree's Electronic Banking and Billpay Services to end users
through Intuit Front-End Products subject to the following limitations and
restrictions:
(i) To any end user who receives xxxx payment
services via Sub Direct or CheckFree Direct during the term of the service
agreement between such user and Sub or CheckFree; provided, however, that
CheckFree shall not be permitted to provide CheckFree Direct after the
termination of the Cooperative Marketing Agreement on September 30, 2001;
provided however, that if the Connectivity term terminates prior to September
30, 2001, CheckFree shall not be entitled to offer CheckFree Direct in new
versions of Quicken released subsequent to such termination, but may continue to
offer CheckFree Direct in versions of Quicken existing at the time of such
termination;
(ii) To any Bank for resale to end users, and the end
user customers of such Bank, pursuant to a Bank Agreement during the Current
Term (i.e., prior to any subsequent renewal term) of such Bank Agreement;
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(iii) To any Financial Institution or Bank for resale
to end users, and the end user customers of such Financial Institution or Bank,
provided (A) such Financial Institution or Bank has entered into an
Authorization Agreement with Intuit and (B) such connection is only during the
term authorized by Intuit pursuant to such agreement.
Sub and CheckFree shall not continue to provide Electronic Banking and Billpay
Services to any Bank following the Current Term unless such Bank is providing
Electronic Banking and Billpay Services pursuant to an effective Authorization
Agreement at the end of the Current Term. Sub and CheckFree acknowledge and
agree that they may only provide Electronic Banking and Billpay Services through
Intuit Front-End Products pursuant to this Section 7.1.3. This license shall
terminate at the termination of the Support Period.
7.2 Sub Licenses to Intuit.
7.2.1 Sub Technology License. Subject to the terms and
conditions of this Agreement, Sub hereby grants to Intuit a non-exclusive,
limited, royalty-free license during the Connectivity Term and Support Period to
use internally any Sub Technology provided by Sub to Intuit specifically for
purposes of this Agreement solely for the purposes of providing Intuit's
obligations under this Agreement. This license shall terminate at the
termination of the Support Period.
7.2.2 Trademark License. Sub hereby grants Intuit a
non-exclusive, worldwide, royalty-free license during the Connectivity Term and
Support Period to use any Sub Marks provided by Sub to Intuit solely in
connection with Intuit's performance of its obligations under this Agreement,
and subject to and in accordance with any Sub Xxxx usage guidelines to be
provided by Sub to Intuit, which guidelines may be modified from time to time in
writing by Sub. This license shall terminate at the termination of the Support
Period.
7.3 CheckFree License to Intuit.
7.3.1 SECAPL License to Intuit. Subject to the terms and
conditions of this Agreement, CheckFree hereby grants to Intuit a non-exclusive,
worldwide, license to make available and otherwise use the SECAPL and any
Derivative Works thereto, in whole or in part, for the purposes and subject to
the conditions described in Exhibit K.
7.3.2 Trademark License to Intuit. CheckFree hereby grants
Intuit a non-exclusive, worldwide, royalty-free license to use any CheckFree
Marks provided by CheckFree to Intuit solely in connection with Intuit's
performance of its obligations under this Agreement, and subject to and in
accordance with any CheckFree Xxxx usage guidelines to be provided by CheckFree
to Intuit, which guidelines may be modified from time to time in writing by
CheckFree. This license shall terminate at the termination of the Support
Period.
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8. FEES AND COSTS
8.1 Sub Fees to Intuit
8.1.1 Connectivity Fees. As partial consideration for the
services to be performed and the obligations undertaken by Intuit pursuant to
Section 3.4, including but not limited to 3.4.5, Sub agrees to pay Intuit the
following fees:
(a) Ten million U.S. dollars (US$10,000,000) to
be paid to Intuit at the Closing; and
(b) An additional Ten million U.S. dollars
(US$10,000,000) to be paid to Intuit on
October 1, 1997 or such later time as
[*Portions have been omitted and filed
separately with the Securities and Exchange
Commission pursuant to a request for
confidential treatment.].
8.1.2 Sub Direct Fee. In consideration of the right to provide
current and future Sub Direct customers with Sub's xxxx payment services, for
which Sub collects Intuit's revenue directly from such users, Sub agrees to
remit to Intuit an amount equal [*Portions have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]. Within thirty (30) days after the end of each calendar
month for which a payment is due, Sub will pay Intuit the amount owed for the
prior month and the payment will be accompanied by a detailed report describing
the basis for the payment.
8.1.3 Intuit Support of Unix Hub. For each calendar month that
Intuit performs the Intuit support and training services for the Unix Hub
described in Section 5.1.1 and Exhibit J, Sub will reimburse Intuit for all of
Intuit's Direct Costs for such services during such month. Intuit will provide
Sub with a report (including a request for reimbursement itemizing the Direct
Costs incurred and indicating the total amount to be paid) as soon as possible
after the end of the month for which such services were provided, and Sub will
remit payment to Intuit for such total amount within thirty (30) days after
receiving the report.
8.1.4 Intuit Marketing for Sub. Sub will pay Intuit a fee of
[*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.] per month
for each full calendar month (or partial month) that Intuit performs the
marketing activities for Sub described in Section 5.2. For any partial month
that Intuit performs such services, the fee will be payable on a pro rata basis
for the portion of such month that Intuit provided the services. Sub will tender
payment to Intuit no later than the fifth (5th) day of the month for which such
payment is due (or, in the case of any partial month, no later than the fifth
(5th) day after Intuit commences performing such services pursuant to this
Agreement).
8.1.5 Intuit Customer and Technical Support for Sub. For each
calendar month that Intuit performs the customer and technical support for Sub
described in Section 5.3, Sub will
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reimburse Intuit for all of Intuit's Direct Costs for such services during such
month. Intuit will provide Sub with a report (including a request for
reimbursement itemizing the Direct Costs incurred and indicating the total
amount to be paid) as soon as possible after the end of the month for which such
services were provided, and Sub will remit payment to Intuit for such total
amount within thirty (30) days after receiving the report.
8.2 Intuit Fees to Sub.
8.2.1 QFN Support Services. For each calendar month that Sub
performs the QFN Support Services described in Exhibit G, Intuit will reimburse
Sub for Sub's Direct Costs for such services during such month. Sub will provide
Intuit with a report (including a request for reimbursement itemizing the Direct
Costs incurred and indicating the total amount to be paid) as soon as possible
after the end of the month for which such services were provided, and Intuit
will remit payment to Sub for such total amount within thirty (30) days after
receiving the report.
8.2.2 Investor Insight Support Services. For each calendar
month that Sub performs the Investor Insight Support Services described in
Exhibit C, Intuit will reimburse Sub for Sub's Direct Costs for such services
during such month. Sub will provide Intuit with a report (including a request
for reimbursement itemizing the Direct Costs incurred and indicating the total
amount to be paid) as soon as possible after the end of the month for which such
services were provided, and Intuit will remit payment to Sub for such total
amount within thirty (30) days after receiving the report.
8.2.3 QAC Support Services. For each calendar month that Sub
performs the QAC Support Services described in Exhibit F, Intuit will pay Sub
either [*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.]; provided
that Sub may not change the method for determining payment pursuant to the
foregoing sentence and provided further that if Intuit is obligated to pay Sub
pursuant to clause (ii) in the foregoing sentence, Intuit may request that Sub
discontinue performing the CompuServe maintenance and diskette production
delivery portions of such services, to be effective at the end of the second
month in which Sub performs such services and charges Intuit pursuant to clause
(ii). Sub will provide Intuit with a report (including a request for
reimbursement itemizing the Direct Costs incurred and indicating the total
amount to be paid) as soon as possible after the end of the month for which such
services were provided, and Intuit will remit payment to Sub for such total
amount within thirty (30) days after receiving the report.
8.2.4 PPU Support Services. For each calendar month that Sub
performs the PPU Support Services described in Exhibit E, Intuit will reimburse
Sub for Sub's Direct Costs for such services during such month. Sub will provide
Intuit with a report (including a request for reimbursement itemizing the Direct
Costs incurred and indicating the total amount to be paid) as soon as possible
after the end of the calendar month for which such services were provided, and
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Intuit will remit payment to Sub for such total amount within thirty (30) days
after receiving the report.
8.2.5 Customer Database Services. For each calendar month that
Sub performs the Customer Database Services described in Exhibit B, Intuit will
reimburse Sub for Sub's Direct Costs for such services during such month. Sub
will provide Intuit with a report (including a request for reimbursement
itemizing the Direct Costs incurred and indicating the total amount to be paid)
as soon as possible after the end of the calendar month for which such services
were provided, and Intuit will remit payment to Sub for such total amount within
thirty (30) days after receiving the report.
8.2.6 MarketPlace Support Services. For each calendar month
that Sub performs the MarketPlace Support Services described in Exhibit D,
Intuit will reimburse Sub for Sub's Direct Costs for such services during such
month. Sub will provide Intuit with a report (including a request for
reimbursement itemizing the Direct Costs incurred and indicating the total
amount to be paid) as soon as possible after the end of the calendar month for
which such services were provided, and Intuit will remit payment to Sub for such
total amount within thirty (30) days after receiving the report.
8.2.7 S&P XxxXxxxx Feed. For each calendar month that Sub
provides Intuit with the services described in Exhibit I, Intuit will reimburse
Sub for Sub's Direct Costs (including the cost of such feed) for such services
during such month. Sub will provide Intuit with a report (including a request
for reimbursement itemizing the Direct Costs incurred and indicating the total
amount to be paid) as soon as possible after the end of the calendar month for
which such services were provided, and Intuit will remit payment to Sub for such
total amount within thirty (30) days after receiving the report.
8.3 Intuit Fees to CheckFree for SECAPL. For each calendar month that
CheckFree provides the SECAPL Services described in Exhibit K, Intuit will
[*Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.] during
such month. Such [*Portions have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.] as soon as possible after the end of the calendar month for which
such services were provided, and Intuit will remit payment to CheckFree for such
total amount within thirty (30) days after receiving the report.
8.4 Costs. Unless otherwise specified herein or agreed among the
parties, each party will bear its own costs and expenses in connection with the
performance of any of its obligations pursuant to this Agreement.
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8.5 No Offsets. No party may offset or otherwise withhold any fees owed
any other party pursuant to this Section 8 for any reason.
8.6 Payment of Sub's Obligations by CheckFree.
8.6.1 CheckFree Assurances. Intuit desires certain assurances
that Sub will pay the Guaranteed Obligations when and as due under this
Agreement. In the event that Sub fails to pay a Guaranteed Obligation when and
as due under this Agreement, and such failure remains uncured for 60 days after
written notice thereof by Intuit to Sub and CheckFree (provided, that Intuit
shall have no obligation to give such notice if the giving of such notice would
violate, or Intuit is otherwise stayed or prevented from giving such notice
under, applicable law), CheckFree hereby irrevocably agrees to pay the overdue
amount of such Guaranteed Obligation within 10 business days after CheckFree's
receipt of Intuit's written demand therefor. CheckFree's obligations under this
Section shall survive Sub's bankruptcy, dissolution or divestiture and any
subsequent failure of CheckFree to hold all or any of the capital stock of Sub.
8.6.2 Waivers of CheckFree. CheckFree expressly waives any
right to require Intuit to: (a) proceed against Sub (other than making initial
demand to Sub and giving Sub notice) prior to proceeding against CheckFree under
this Section 8.6; (b) proceed against any other party; (c) pursue any other
right or remedy in Intuit's power whatsoever with respect to any Guaranteed
Obligation; or (d) obtain CheckFree's consent or notify CheckFree prior to
agreeing in writing with Sub to renew, extend, accelerate or otherwise change
the time for payment of, or release, settle or compromise, or otherwise change
or modify the terms of, or waive any breach or default by Sub of, any Guaranteed
Obligation. Intuit may, at its election, exercise or refrain from exercising any
right or remedy it may have against Sub without thereby affecting or impairing
in any way CheckFree's liability hereunder. In addition, CheckFree hereby also
waives: (a) any defense arising out of the absence, impairment or loss of any
right of reimbursement or subrogation or other right or remedy of CheckFree
against Sub; (b) except for notices provided for above, all presentments,
demands for performance, notices of nonperformance, protests, notice of protest,
notices of dishonor, and notices of acceptance of CheckFree's obligation
hereunder and of the existence, creation or incurring of new or additional
Guaranteed Obligations or any duty on the part of Intuit to disclose to
CheckFree or to keep CheckFree informed as to any facts or circumstances about
Sub known by Intuit; and (c) any statutory and other defenses of any nature
available to guarantors generally or any other matter, event or circumstance
that may result in the release or exoneration of a guarantor, including without
limitation defenses provided for in or available as a result of noncompliance
with the requirements of Title 13 of the California Civil Code. In no event,
however, will CheckFree have any additional obligation hereunder once the
Guaranteed Obligations are paid in full.
8.6.3 Certain Additional Waivers. In the event that the time
for payment or performance of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of Sub or any other person or entity or
for any other reason ("Event"), all amounts
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provided for under the terms of any agreement or instrument evidencing, securing
or otherwise executed in connection with any Guaranteed Obligations shall become
due and payable by CheckFree as Guaranteed Obligations at the time such amount
would have become payable by Sub under this Agreement absent such Event, subject
only to the notices expressly required by Section 8.6.1 above.
8.6.4 Successors and Assigns. This Section 8.6 shall: (i) be
binding upon Sub, CheckFree and their respective successors and assigns and (ii)
inure to the benefit of, and be enforceable by, Intuit and Intuit's successors
or assigns.
8.7 Inspections and Audits. Each Performing Party shall make and
maintain until the expiration of one (1) year after the last payment under this
Agreement is due, complete books, records and accounts regarding the costs
incurred by such party for performing the services it provides to and charges
each Receiving Party. Each Receiving Party shall have the right not more than
once each year to examine such books, records and accounts during the Performing
Party's normal business hours to verify the Performing Party's reports on the
amount of payments made by the Receiving Party. If any such examination
discloses that the Receiving Party was charged more than ten percent (10%)
during any twelve month period than such Receiving Party should have been
charged, the Performing Party agrees to (x) pay or reimburse the Receiving Party
for the reasonable expenses of the examination, (y) pay the Receiving Party the
amount that the Receiving party was overcharged.
9. REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties. Each party represents and warrants,
severally and not jointly, to each of the other parties that:
(i) such party has full power, right and authority to enter
into this Agreement, to carry out its obligations under this Agreement, to grant
and license the rights that are granted and licensed to any other party under
this Agreement and to provide the services that are provided to any other party
under this Agreement;
(ii) neither the execution and delivery of this Agreement, nor
the performance of any of such party's obligations hereunder, will conflict
with, or result in a termination, breach, impairment or violation of, any
agreement between such party and any third party, or constitute a violation of
any applicable law, regulation or order;
(iii) this Agreement, when duly executed by each party, will
constitute a valid and binding obligation of such party, enforceable in
accordance with its terms; and
(iv) such party has not previously granted or licensed and
will not grant or license any Intellectual Property Rights to any third party on
terms that are inconsistent with the
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rights that are granted and licensed herein.
9.2 No Other Warranties. EXCEPT WITH RESPECT TO SECTIONS 3.3.1 AND
3.4.4, THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE THE SOLE AND EXCLUSIVE
WARRANTIES MADE BY EACH PARTY HEREUNDER AND ARE IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY
OF TITLE, WARRANTIES THAT SUB WILL BE ABLE TO SUPPORT AND OPERATE THE UNIX HUB
SOFTWARE AT THE END OF THE TRANSITION PERIOD AND THAT THE UNIX HUB WILL OPERATE
UNINTERRUPTED AT ANY AND ALL TIMES, ALL OF WHICH ARE HEREBY EXPRESSLY
DISCLAIMED.
9.3 LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO INDEMNIFY UNDER
SECTIONS 3.9 AND 10, BREACH OF THE CONFIDENTIALITY OBLIGATION IN SECTION 11
AND/OR WHERE PROHIBITED BY LAW, REGARDLESS OF WHETHER ANY REMEDY SET FORTH
HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ANY PARTY BE LIABLE TO
ANY OTHER PARTY FOR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR
PUNITIVE DAMAGES OF ANY KIND, WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT
LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.4 Intuit Covenants. To Intuit's knowledge, [*Portions have been
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.].
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10. INDEMNIFICATION
10.1 Duty to Indemnify. Each party will indemnify, defend and hold
harmless the other parties hereto from and against all claims, damages, losses
and expenses, including court costs and reasonable fees and expenses of
attorneys, expert witnesses and other professionals, arising out of or resulting
from any negligent act or omission or willful or reckless conduct of an
Indemnifying Party or its employees or subcontractors which directly results in:
(a) any bodily injury, sickness, disease or death;
(b) any injury or destruction to tangible or intangible
property (including computer programs and data) or
any loss of use resulting therefrom; or
(c) any violation of any statute, ordinance or
regulation;
except to the extent of the negligence of the party requesting indemnification
pursuant to this Section 10 In no event will any party be entitled to seek
indemnification from any other party under this Section 10 for any claim by an
end user where such party is not liable to such end user for such claim.
10.2 Indemnity Conditions. In the event of any such claim for
indemnification hereunder, the Indemnified Party will: (i) promptly notify the
Indemnifying Party of the claim; (ii) provide the Indemnifying Party with all
reasonable information and assistance, at the Indemnifying Party's expense, to
defend or settle such a claim; and (iii) grant the Indemnifying Party authority
and control of the defense or settlement of such claim. The Indemnifying Party
shall not settle any such claim, without the Indemnified Party's prior written
consent, if such settlement would alter, impair or reduce or otherwise limit the
Indemnified Party's exercise of its rights under this Agreement. The Indemnified
Party reserves the right to retain counsel, at its expense, to participate in
the defense and settlement of any such claim.
11. CONFIDENTIAL INFORMATION
During the term of this Agreement, and for a period of five (5) years
after any termination of this Agreement, each party will not use the other
party's Confidential Information, except as expressly permitted under this
Agreement, and will not disclose such Confidential Information to any third
party, except to its employees and consultants with a need to know such
Confidential Information for the performance of this Agreement (and only subject
to binding use and disclosure restrictions at least as protective as those set
forth herein executed in writing by such employees and consultants). However,
each party may disclose Confidential Information of any other party: (i)
pursuant to the order or requirement of a court, administrative agency, or other
governmental body, provided that the disclosing party gives reasonable notice to
the other party to contest such order or requirement; and (ii) on a confidential
basis to its legal or financial
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advisors.
Within ten days (10) of the termination of the Cooperative Marketing Agreement,
CheckFree shall return all copies of Intuit's Sub Direct customer list or
portions of such list to Intuit, destroy and/or erase any written or electronic
media containing information about Intuit's Sub Direct customer list (excluding
any such information that is required by CheckFree to perform Electronic Banking
and Billpay Services on behalf of Intuit), and provide Intuit with a written
certification of such destruction and/or erasure signed by an officer of
CheckFree. Within ten (10) days of the termination of the Support Period, Sub
(or, if applicable, CheckFree) shall, destroy and/or erase any written or
electronic media containing information about Intuit's Sub Direct customers and
provide Intuit with a written certification of such destruction and/or erasure
signed by an officer of Sub (or, if applicable, CheckFree).
12. TERM AND TERMINATION
12.1 Term. Except as otherwise provided in Section 2.3, above, this
Agreement will commence at the Effective Time and will continue in full force
and effect until such time as the parties mutually agree to terminate it or
until terminated earlier in accordance with the terms of this Agreement.
12.2 Survival. The following provisions will survive termination of
this Agreement for any reason: Sections 1 (Definitions); 3.5.3 (Conversion of
CheckFree Direct Customers); 3.8 (Treatment of Transferred CheckFree Direct
Customers); 3.9(Connectivity Indemnification); 5.1.3 (No Warranties); 8 (Fees);
9 (Representations and Warranties); 10 (Indemnification); 11 (Confidential
Information); 12.2 (Survival) and 13 (General Provisions).
13. GENERAL PROVISIONS
13.1 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard to provisions
governing conflicts of law.
13.2 Compliance with Laws. Each party agrees to comply in all material
respects with all applicable laws, rules, and regulations, including but not
limited to all applicable export control laws and regulations, in connection
with its activities under this Agreement.
13.3 Severability. If for any reason a court of competent jurisdiction
finds any provision of this Agreement invalid or unenforceable, that provision
of the Agreement will not be declared void but rather shall be enforced to the
maximum extent legally permissible and the other provisions of this Agreement
will remain in full force and effect.
13.4 Assignment. The rights and liabilities of the parties hereto will
bind and inure to
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the benefit of their successors and assigns. No party may assign or delegate any
of its rights or obligations hereunder, in whole or in part, to any third party
without the prior written consent of each of the other Parties. Notwithstanding
the foregoing, any party may assign this Agreement, in whole or in part, to any
other party hereto (except that CheckFree may not assign its obligation pursuant
to Section 8.6 to any other party hereto) and any party may assign this
Agreement in whole to any third party, or group of third parties, that
acquire(s) substantially all of the voting equity securities or assets of such
party.
13.5 Waiver. The waiver of any breach or default will not constitute a
waiver of any other right hereunder or any subsequent breach or default.
13.6 Notices. All notices required or permitted under this Agreement
will be in writing, will reference this Agreement and will be deemed given: (i)
when sent by facsimile confirmed by registered or certified mail (ii) three (3)
working days after deposit with a commercial overnight carrier, with written
verification of receipt or (iii) five (5) working days after having been sent by
registered or certified mail. All communications will be sent to the addresses
set forth below (or to such other address as may be designated by a party by
giving written notice to the other party pursuant to this Section 13.6).
If to Intuit: If to CheckFree:
Intuit Inc. CheckFree Corporation
0000 Xxxxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: President Attn: President
Copy: General Counsel Copy: General Counsel
Fax: 000-000-0000 Fax: 000-000-0000
If to Sub:
Intuit Services Corporation
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Chief Executive Officer
Fax: 000-000-0000
13.7 Injunctive Relief. Each party acknowledges that any breach of its
obligations under this Agreement arising under Section 11 will cause the other
parties irreparable injury for which there are inadequate remedies at law, and
therefore, each of the other affected parties will
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be entitled to equitable relief in addition to all other remedies provided by
this Agreement or available at law. Each party further agrees that each of the
other parties involved in any litigation concerning this Agreement shall be
entitled to recover reasonable attorneys' fees and court costs expended in
connection with any litigation initiated to enforce the provisions of this
Section. Nothing herein shall be construed to preclude any party from obtaining
injunctive relief in the case of breach of the provisions of any other sections
of this Agreement.
13.8 Force Majeure. If a party's performance of this Agreement or any
of its obligations hereunder is prevented, restricted or interfered with by
reason of fire or other casualty or accident, strikes or labor disputes, war or
other violence, any law, order, proclamation, requisitions, ordinance, demand or
requirement of any government agency, or any other similar act or condition
beyond the reasonable control of such party, then the party so affected, upon
giving prompt notice thereof to the other parties, will be excused from such
performance during the duration of such prevention, restriction or interference.
13.9 Entire Agreement. This Agreement, the Plan, the Assignment and
License Agreement and all exhibits and schedules hereto and thereto are the
complete and exclusive agreement among the parties with respect to the subject
matter hereof, superseding and replacing any and all prior Agreements,
communications, and understandings (both written and oral) regarding such
subject matter. Except as otherwise provided herein, this Agreement may only be
modified, or any rights under it waived, by a written document executed by all
parties hereto.
13.10 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, but both of which together will
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement is hereby executed as of the date
first above written.
INTUIT CHECKFREE
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
---------------------------- ----------------------------------
Title: Vice President Title: Executive Vice President
---------------------------- ----------------------------------
SUB
By: /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
----------------------------
Title: Secretary
----------------------------
[SIGNATURE PAGE TO SERVICES AND LICENSE AGREEMENT]
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