1
EXHIBIT 10.17
MASTER AGREEMENT
BETWEEN INTUIT INC. AND MODUS MEDIA INTERNATIONAL, INC.
ARTICLE I
PARTIES
Section 1.1 Parties to the Agreement
THIS MASTER AGREEMENT (herein "Master Agreement" or "Agreement") for
services, effective August 31, 1999 (herein the "Effective Date") is between
INTUIT Inc. (herein "INTUIT"), a Delaware corporation located at 0000 Xxxxxx
Xxxxxx, Xxxxxxxx Xxxx, XX 00000 , and Modus Media international, Inc.,
incorporated in Delaware (herein "MODUS MEDIA"), located at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00000.
In consideration of the mutual covenants contained herein, the parties
hereby agree as follows:
ARTICLE 2
SERVICES
Section 2.1 Enterprise Members
Under this Agreement, INTUIT shall mean Intuit Inc. and any "Enterprise
Member," which is defined as, individually and collectively, Venture Finance
Software Corp. and all subsidiaries and related companies, that Intuit controls
by ownership of 45% or greater equity interest, or controls the day-to-day
management of such companies by contract or otherwise, solely in connection with
INTUIT's relationship with such entity, provided such related company is not a
direct competitor of MODUS MEDIA. See Schedule A for the comprehensive list of
the Enterprise Members, which may be amended from time to time by written notice
from INTUIT to MODUS MEDIA.
Section 2.2 Statement of Work
INTUIT, in its sole discretion, may engage MODUS MEDIA to perform
services under a statement of work agreed to and signed by the parties (herein
"Statement of Work"). MODUS MEDIA will provide the services (herein "Services")
as outlined in the Statement of Work. MODUS MEDIA will also provide such
additional related services as are set out in such Statement of Work (herein
"Related Services"). All terms and conditions contained in this Master Agreement
apply to the Statement of Work. Any new Statement of Work introduced during the
Term of this Agreement may be incorporated into this Agreement if both parties
agree in writing to do so.
Section 2.3 Approved Facility
For business based in the United States and Canada, MODUS MEDIA will
utilize a U.S. based facility or facilities (herein "Approved Facility") for
delivery of Services for the Statement of Work. The Facility will be equipped
with telephone systems, computer systems, and various MODUS MEDIA support tools,
such as documentation and knowledge bases, to be used in the delivery of
Services.
1
2
For business based in the Asia/Pacific Rim region, MODUS MEDIA may
utilize a facility in Singapore. For European based business, MODUS MEDIA may
utilize its facility located in Apeldoorn, The Netherlands and/or Kildare,
Ireland. The parties may add, delete, or change an Approved Facility at any time
through a signed Amendment to this Master Agreement.
Section 2.4 Quarterly Reviews
Both parties agree to conduct quarterly business reviews to analyze the
ability of MODUS MEDIA to meet INTUIT's service requirements. These reviews will
be conducted in a mode (conference call, personal visit., etc.) agreed upon by
both parties. Specific dates and times for the Reviews will be scheduled at
least one month prior to the event. These reviews will also be utilized to
assist INTUIT in improving the overall service levels that they provide for
their customers.
ARTICLE 3
SERVICES
Section 3.1 Orders
An order (herein "INTUIT Order") is defined as a single request for
services under any Statement of Work. To order Services under a Statement of
Work, INTUIT shall issue a purchase order under the referenced Statement of Work
for the Services to be performed by MODUS MEDIA. The terms and conditions of
this Master Agreement and the referenced Statement of Work shall govern the
Services and any printed terms and conditions on the purchase order or
acceptance forms shall not apply. MODUS MEDIA shall examine the INTUIT Order and
shall ask INTUIT for clarification if there is any ambiguity. MODUS MEDIA shall
not perform Services without an INTUIT Order and without proper instructions.
Services shall commence on the date indicated in the INTUIT Order.
Section 3.2 Changes
INTUIT may order changes in the Services under a Statement of Work. All
changes shall be evidenced by an executed Change Order form referencing the
original purchase order number and Statement of Work. If adjustments to
compensation are required, they shall be described in the Change Order. The
terms and conditions governing the Services shall continue in full force and
effect except as expressly amended in the Change Order. If INTUIT knows it will
experience a delay after the date Services are scheduled to commence and
requests MODUS MEDIA to remain on standby during that delay, INTUIT will
reimburse MODUS MEDIA for reasonable standby costs as agreed to by the parties
prior to commencement of the delay and described in a Change Order.
ARTICLE 4
Section 4.1 Insurance
MODUS MEDIA shall at all times for the duration of this Agreement and
until all Services
2
3
are performed by MODUS MEDIA, at its own expense, maintain comprehensive
property damage and liability insurance, affording it coverage consistent with
good business practice for the size and type of business operated by MODUS
MEDIA. Additional insurance requirements may be imposed in connection with a
Statement of Work. MODUS MEDIA shall provide INTUIT such certificates or other
evidence as INTUIT may request as proof of such insurance. (name INTUIT as
"additional insured" or "loss payee"?).
ARTICLE 5
INVOICING AND PAYMENT
Section 5.1 Invoicing and Payment
MODUS MEDIA will provide INTUIT with a monthly invoice of the previous
month's Services performed under a Statement of Work. MODUS MEDIA will provide
separate invoices (do we want separate invoices?) for operations in Lindon,
Utah, and Fremont, California, and any other operating divisions performing
services for INTUIT. (Will there be separate invoices for separate Statements of
Work?) If a location is providing support for more than one region (?), separate
invoices must be issued for each region. In addition, MODUS MEDIA will xxxx and
INTUIT will pay for Related Services and such other charges as are provided for
herein on an as-incurred basis. Charges for Related Services not specifically
provided for in this Agreement or the Statement of Work MUST be approved by
INTUIT in advance of being incurred, otherwise INTUIT is under no obligation to
pay unapproved expenses. INTUIT will pay net thirty days from its receipt of the
invoice in its Accounts Payable Department. If INTUIT is delinquent in the
payment of any undisputed invoice, and fails to remedy the delinquency within
thirty (30) days after receiving written notice from MODUS MEDIA, MODUS MEDIA
may charge INTUIT interest on the unpaid balance at the rate of twelve percent
(12%) per annum until such delinquency is remedied. In the event of a disputed
invoice, INTUIT will pay the portion of the invoice that is not disputed, and
will promptly pay the disputed portion once resolved.
SECTION 5.2 Applicable Sales Tax
Invoices will include local, state or federal sales, use or other
similar taxes or duties, if applicable. MODUS MEDIA will be responsible for the
proper computation and invoicing of sales taxes. Once submitted to INTUIT,
INTUIT shall be responsible for the payment of any such taxes.
ARTICLE 6
TERM AND TERMINATION
Section 6.1 Term
This Agreement shall become effective on the Effective Date and shall
continue until either party provides at least ninety (90) days notice of its
intent to terminate this Agreement.
3
4
Section 6.2 Termination Based on Non-Performance
6.2.1 If MODUS MEDIA falls to perform the Services described in the
referenced Statement of Work under an INTUIT Order in a timely manner or falls
to perform any material provision of the Master Agreement or Statement of Work,
MODUS MEDIA shall immediately take appropriate steps to perform such Services or
to cure such failure. If MODUS MEDIA falls to cure the failure immediately and
such failure produces an emergency or a serious situation causing a major impact
on INTUIT's business operations, INTUIT will provide a written warning to MODUS
MEDIA. MODUS MEDIA will provide INTUIT reasonable assurances of future
performance in writing within one (1) day and continue to work on the problem
until it is resolved within seven (7) days or INTUIT may immediately terminate
this Agreement and/or any Statement of Work upon written notice to MODUS MEDIA.
If the failure cannot reasonably be cured within seven (7) days, MODUS MEDIA
shall commence to cure the failure immediately and diligently and in good faith
continue to cure the failure. Notwithstanding any cure period, if INTUIT deems
it necessary, in its sole discretion, INTUIT may move the Services to another
vendor without liability to MODUS MEDIA during the cure period until such
failure is cured.
6.2.2 If the failure to perform the Services described in the applicable
Statement of Work under an INTUIT Order or breach of a provision of the Master
Agreement or Statement of Work causes a minor impact on INTUIT's business
operations, INTUIT shall give MODUS MEDIA written warning of such breach, and
MODUS MEDIA must cure and maintain such cure within thirty (30) days of the
receipt of the notice by MODUS MEDIA. If the failure cannot reasonably be cured
within thirty (30) days, MODUS MEDIA shall commence to cure the failure
immediately and diligently and in good faith continue to cure the failure.
Notwithstanding any cure period, if INTUIT deems it necessary, in its sole
discretion, INTUIT may move all or part of the Services to another vendor
without breach of this Agreement or liability to MODUS MEDIA during the cure
period until such failure is cured. INTUIT may terminate this Agreement and/or
any Statement of Work upon written notice if MODUS MEDIA falls to cure such
breach after notification.
6.2.3 MODUS MEDIA shall have the right to charge interest at the rate of
twelve percent (12%) per annum under this Agreement until INTUIT remedies any
payment delinquency. MODUS MEDIA may terminate this Agreement upon forty-five
(45) days written notice if INTUIT falls to pay an undisputed invoice on two or
more occasions within one (1) year or if INTUIT otherwise commits a material
breach of this Agreement and does not remedy such breach within thirty (30) days
of receipt of Written notice from MODUS MEDIA.
6.2.4 Notwithstanding anything to the contrary in this Agreement, INTUIT
may, at any time and at its sole convenience, with or without cause, terminate
all or a portion of the Services in a particular INTUIT Order for Services under
a Statement of Work by giving written notice to MODUS MEDIA specifying the date
of termination. Should INTUIT terminate an INTUIT Order, MODUS MEDIA shall
immediately stop its performance required under such Order and shall immediately
cause any of its suppliers or subcontractors to cease such work as soon as
practicable. Upon receipt and verification of MODUS MEDIA's invoice, INTUIT
shall pay MODUS MEDIA all amounts properly due and owing up to that date,
including the fees for the Order under the Statement of Work reflecting the work
in process begun prior to the effective date of termination plus actual direct
costs resulting from such termination. MODUS MEDIA shall not be paid for any
work done after the effective date of termination nor for any costs of MODUS
MEDIA or of its suppliers or subcontractors which MODUS MEDIA could reasonably
have avoided. If INTUIT provides MODUS MEDIA with a written request to perform
tasks as are necessary to demobilize the Services
4
5
after the termination date, MODUS MEDIA will perform such tasks and be
compensated accordingly, as agreed to by both parties.
Section 6.3 Termination Without Cause
Either party shall have the right to terminate this agreement without
cause, for any reason, by providing one hundred and twenty (120) days' notice to
the other party.
Section 6.4 Termination due to Bankruptcy
Either party shall also have the right to terminate this Agreement for
cause if the other party becomes insolvent, files or has filed against it a
petition under applicable bankruptcy or insolvency laws which is not dismissed
within sixty (60) days, proposes any dissolution, composition or financial
reorganization with creditors, makes an assignment for the benefit of creditors,
or if a receiver, trustee, custodian or similar agent is appointed or takes
possession with respect to any property or business of the defaulting party.
Notwithstanding anything to the contrary in this Agreement, if MODUS
MEDIA shall file for protection under the bankruptcy laws, or if an involuntary
petition shall be filed against MODUS MEDIA and not removed within ten (1 0)
days, or if the MODUS MEDIA shall become insolvent, be adjudicated bankrupt, or
if it should make a general assignment for the benefit of creditors, or if a
receiver shall be appointed due to its insolvency, INTUIT may, without prejudice
to any other right or remedy, terminate this Agreement, any Statement of Work
and any INTUIT Order and, at its option, may take possession of the "Work in
Process" and finish the manufacture by whatever appropriate method INTUIT may
deem expedient. MODUS MEDIA will fix appropriate notices or labels on the Work
in Process to indicate ownership by INTUIT. To the extent reasonably possible,
materials and Work in Process pertaining to the Services shall be stored
separately from other stock and marked conspicuously with labels indicating
ownership by INTUIT.
To secure INTUIT's progress payments prior to the shipment of the
product, title to and first security interest in the product, any Work in
Process, and materials required for the execution of MODUS MEDIA's obligations
under this Agreement, and any work which MODUS MEDIA may subcontract in the
support of the performance of its obligations under this Agreement, shall vest
in INTUIT to the extent INTUIT had made progress payments under this Agreement.
The parties hereby agree that this Agreement shall constitute the
Security Agreement required by the Uniform Commercial Code of the appropriate
state. Each party will execute promptly any financing statement required to
perfect and protect the interests of the other as defined in this Agreement.
Section 6.5 Obligations Upon Termination or Expiration.
The termination or expiration of this Master Agreement shall in no way
relieve either party from its obligations to pay the other party any sums
accrued hereunder prior to such termination or expiration or affect the
limitation of liability. All warranties and confidentiality provisions shall
remain in effect for their stated duration.
5
6
Section 6.6 Disaster Recovery.
Notwithstanding any provision to the contrary, INTUIT and the Enterprise
Members shall have the right to take whatever reasonable actions are necessary,
without liability to MODUS MEDIA, except for Services actually performed, in the
event of a disaster (a) for the duration of a disaster and (b) for the purpose
of keeping its business functioning. Disaster shall mean an unplanned
interruption (a) in the ability of INTUIT and/or Enterprise Members to use the
Services of MODUS MEDIA due to a cause beyond the control of INTUIT and/or an
Enterprise Member, which at the time of occurrence can reasonably be projected
to last over four (4) hours or (b) in telecommunications to or from one or more
of INTUIT's and/or the Enterprise Member's facilities due to a cause beyond the
control of INTUIT and/or an Enterprise Member, which at the time of occurrence
can reasonably be projected to last over four (4) hours.
ARTICLE 7
INDEMNIFICATION
Section 7.1 Patent and Copyright Indemnification by INTUIT
7.1.1 "Intellectual Property Rights" means any of INTUIT's patents,
trademarks, trade names, inventions, copyrights, design rights, know-how or
trade secrets and any other intellectual property rights of INTUIT subsisting
anywhere in the world, relating to the origin, design, manufacture, programming,
operation or service of any INTUIT products.
7.1.2 MODUS MEDIA acknowledges INTUIT's representation that all
Intellectual Property Rights throughout the world are vested in INTUIT
absolutely, and acknowledges that MODUS MEDIA has no right or interest in any
Intellectual Property Rights.
7.1.3 The "Territory" consists of the countries in which MODUS MEDIA
performs Services for INTUIT and the countries in which MODUS MEDIA sells or
distributes INTUIT products on INTUIT's behalf, under this Agreement.
7.1.4 INTUIT shall, at its own expense, defend Modus Media against all
claims, suits, losses, expenses and liabilities (including MODUS MEDIA's
reasonable attorney's fees) or arising out of any claim alleging that any INTUIT
product sold or distributed by MODUS MEDIA on INTUIT's behalf hereunder
infringes any duly issued patent or copyright of the United States or the
Territory and shall pay all damages awarded therein against MODUS MEDIA or
agreed upon in settlement by INTUIT; provided that MODUS MEDIA (i) gives INTUIT
notice in writing of any such suit, proceeding or threat thereof, (ii) permits
INTUIT sole control, through counsel of INTUIT's choice, to defend and/or settle
such suit and (iii) gives INTUIT all reasonably necessary information,
assistance and authority, at INTUIT's expense, to enable INTUIT to defend or
settle such suit.
7.1.5 Subsection 7.1.4, above, shall not apply to and INTUIT shall have
no liability or obligation for any infringement arising from: (a) any
modification, servicing or addition made to the INTUIT product by anyone other
than INTUIT or its representative or agent, (b) the use of such INTUIT product
as a part of or in combination with any devices, parts or software not provided
by INTUIT, (c) compliance with MODUS MEDIA's design requirements or
specifications, (d) the use of
6
7
other than the then current unaltered release of the software INTUIT product
available from INTUIT or (e) the use of such INTUIT product to practice any
method or process which does not occur wholly within the INTUIT product. The
above exclusions apply to the extent that the infringement would have been
avoided but for such modifications, combinations, compliance with
specifications, use of other than the current release or practice of such method
or process.
7.1.6 In the event the use or sale of any INTUIT product distributed by
MODUS MEDIA in accordance with the Statement of Work for Fulfillment Services
provided under this Master Agreement is enjoined, or in the event INTUIT wishes
to minimize its potential liability hereunder, INTUIT may, at its sole option
and expense: (i) procure for MODUS MEDIA the right to use or distribute such
INTUIT product; (ii) substitute a functionally equivalent, non-infringing unit
of the INTUIT product; (iii) modify such INTUIT product so that it no longer
infringes but is substantially equivalent in functionality; or (iv) if none of
the foregoing are commercially feasible, take back such INTUIT product and not
distribute the product.
70.1.7 THIS SECTION STATES INTUIT'S TOTAL RESPONSIBILITY AND LIABILITY,
AND MODUS MEDIA'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT FOR ANY INTUIT PRODUCTS DELIVERED HEREUNDER OR ANY
PART THEREOF AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED
OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT.
Section 7.2 General Indemnity by INTUIT
INTUIT shall, at its own expense, defend MODUS MEDIA against all claims,
suits, losses, expenses and liabilities (including MODUS MEDIA's reasonable
attorney's fees) for or arising out of any claim alleging personal injury,
death, or damage to tangible property caused by INTUIT or as the result of the
negligence or intentional wrongful acts or omissions, when there is a duty to
act, of INTUIT or any person for whose actions INTUIT is legally liable. INTUIT
shall pay all damages awarded therein against MODUS MEDIA or agreed upon in
settlement by INTUIT, provided that MODUS MEDIA gives INTUIT immediate notice in
writing of any such suit, proceeding, or threat thereof, and permits INTUIT,
through counsel of its choice, to answer the charges and defend and/or settle
such suit; and MODUS MEDIA gives INTUIT all reasonably necessary information,
that is available to it, and all needed assistance and authority, at INTUIT's
expense, to enable INTUIT to defend or settle such suit.
Section 7.3 Indemnity by MODUS MEDIA
MODUS MEDIA shall, at its own expense, indemnify and defend INTUIT
against all claims, suits, losses, expenses, and liabilities (including INTUIT's
reasonable attorney's fees) for personal injury, death, and tangible property
damage made against INTUIT caused by MODUS MEDIA or as a result of the
negligence, intentional wrongful acts or omissions, or misrepresentations of
MODUS MEDIA or any person for whose actions MODUS MEDIA is legally liable.
MODUS MEDIA shall pay all damages awarded therein against INTUIT or
agreed upon in settlement by MODUS MEDIA relating to this indemnity, provided
that INTUIT gives MODUS MEDIA notice in writing of any such suit, proceeding, or
threat thereof, and permits MODUS MEDIA, through counsel of its choice, to
answer the charges and defend and/or settle such suit; and INTUIT gives MODUS
MEDIA all reasonably necessary information that is available to it, and
7
8
assistance and authority, at MODUS MEDIA's expense, to enable MODUS MEDIA to
defend or settle such suit.
ARTICLE 8
LIMITATION OF LIABILITY
Section 8.1 Limitation of Liability
TO THE FULL EXTENT ALLOWED BY LAW, THE PARTIES EXCLUDE ANY LIABILITY TO
THE OTHER, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR
INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR
FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA,
OR OTHER FINANCIAL LOSS ARISING OUT OF UNDER THIS AGREEMENT.
Section 8.2 Limitation of Damages
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE MAXIMUM
LIABILITY OF EITHER PARTY TO THE OTHER FOR DAMAGES HEREUNDER SHALL NOT EXCEED
THE TOTAL PAYMENTS MADE BY INTUIT UNDER THIS AGREEMENT, EXCEPT THAT THIS
LIMITATION SHALL NOT APPLY TO AMOUNTS OWED FOR SERVICES PROVIDED AND UNPAID
UNDER THIS AGREEMENT.
ARTICLE 9
WARRANTY AND WARRANTY DISCLAIMERS
Section 9.1 Warranty
MODUS MEDIA represents and warrants that the Services furnished under an
INTUIT Order shall comply with and conform to all specifications in the
Statement of Work, will be free of defects in material and workmanship and that
it will provide the Services under this Agreement in a workmanlike manner by
competent personnel and in conformance with generally accepted standards within
its industry. MODUS MEDIA warrants and represents that is shall comply with all
federal, state and local laws. MODUS MEDIA further warrants and represents to
INTUIT that MODUS MEDIA'S equipment and appliances needed to provide Services
under an INTUIT Order will remain fully functional and perform their normal
operations, without interruptions or malfunctions as a result of the transition
from the year 1999 to the year 2000, provided that MODUS MEDIA receives correct
and properly formatted data inputs from all external software and hardware that
exchange data with or provide data to MODUS MEDIA. If any repairs or alterations
must be made at any time to MODUS MEDIA's equipment or appliances in order to
prevent or remedy any such interruptions or malfunctions in the Services or
operations, MODUS MEDIA will immediately undertake such repair or alteration.
Section 9.2 Warranty Disclaimers
TO THE FULL EXTENT ALLOWED BY LAW, MODUS MEDIA DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
8
9
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO ITS SERVICES.
ARTICLE 10
CONFIDENTIALITY AND PUBLICITY
Section 10.1 Confidentiality
During the course of this Agreement, each party may disclose to the
other certain proprietary information (both patentable and unpatentable,
including trade secrets, know how, software, source codes, techniques, future
product plans, marketing plans, customers, inventions, discoveries,
improvements, and research and development data) ("Confidential Information") of
a character regarded by the disclosing party as confidential. Each party and
each of its employees or consultants to whom disclosure is made shall hold all
Confidential Information and the terms of this Agreement in confidence, and
shall not disclose such information to any third party or apply it to uses other
than the recipient's performance of this Agreement.
Such Confidential Information if disclosed in writing shall be marked or
identified as confidential or a similar designation, or if orally or visually
disclosed, shall be identified as the confidential information of the disclosing
party at the time of disclosure and then summarized in writing and provided to
the recipient in such written form within thirty (30) days after such oral or
visual disclosure.
(a) Obligation of Confidentiality. Each party agrees that for a
period of three (3) years from receipt of Confidential
Information from the other party hereunder, it shall use the
same degree of care that it utilizes to protect its own
information of a similar nature, but in any event not less than
reasonable care, to prevent the unauthorized use or the
disclosure of such Confidential Information to third parties.
The Confidential Information shall be disclosed only to
employees and consultants of a recipient with a "need to know"
who are instructed to and agree in writing to not disclose third
party confidential information, and who shall use the
Confidential Information only for the purpose set forth above. A
recipient may not alter, decompile, disassemble, reverse
engineer, or otherwise modify any Confidential Information
received hereunder and the mingling of the Confidential
Information with information of the recipient shall not affect
the confidential nature or ownership of the same as stated
hereunder.
(b) Ownership of Confidential Information. All Confidential
Information is, and shall remain, the property of the disclosing
party. Nothing herein shall be construed as granting or
conferring any rights by license or otherwise in the
Confidential Information except as expressly provided herein. A
recipient acquires hereunder only a limited right to use the
Confidential Information solely for the purpose of performing
its obligations under this Agreement.
(c) Return of Confidential Information. Upon the written request of
the disclosing party, or upon the expiration or any earlier
termination of this Agreement, the recipient shall promptly
return all copies of the Confidential Information, in whatever
form or media, to the disclosing party or, at the direction of
such party, destroy the same. The recipient
9
10
shall certify in writing to the other such return or destruction
within thirty (30) days thereafter.
(d) Exceptions to Obligation of Confidentiality. This Agreement
shall impose no obligation of confidentiality upon a recipient
with respect to any portion of the Confidential Information
received hereunder which:
(i) now or hereafter, through no unauthorized act or failure
to act on recipient's part, becomes generally known or
available;
(ii) is lawfully known to the recipient without an obligation
of confidentiality at the time recipient receives the
same from the disclosing party, as evidenced by written
records,
(iii) is hereafter lawfully furnished to the recipient by a
third party without restriction on disclosure;
(iv) is furnished to others by the disclosing party without
restriction on disclosure; or
(V) is independently developed by the recipient without use
of the disclosing party's Confidential Information.
Nothing in this Agreement shall prevent the receiving party from
disclosing Confidential Information to the extent the receiving party is legally
compelled to do so by any governmental investigative or judicial agency pursuant
to proceedings over which such agency has jurisdiction; provided, however, that
prior to any such disclosure, the receiving party shall:
(a) assert the confidential nature of the Confidential Information
to the agency;
(b) immediately notify the disclosing party in writing of the
agency's order or request to disclose; and
(c) cooperate fully with the disclosing party in protecting against
any such disclosure and/or obtaining a protective order
narrowing the scope of the compelled disclosure and protecting
its confidentiality.
Section 10.2 Publicity
Neither party shall disclose, advertise or publish the terms or
conditions of this Agreement without the prior written consent of the other
party, except as may be required by law or pursuant to a lawful request of a
government agency in which event the party required to make such disclosure
shall notify the other party and provide the other party with reasonable
opportunity to prevent such disclosure. This Section shall survive the
expiration or termination of this Master Agreement.
ARTICLE 11
GENERAL PROVISIONS
Section 11.1 Relationship of Parties
10
11
MODUS MEDIA is an independent contractor and represents INTUIT solely
for the purpose of performing its obligations on behalf of INTUIT as stated in
this Master Agreement. MODUS MEDIA does not have the authority to bind INTUIT
except as expressly stated herein. No provision of this Agreement or any act of
the parties under this Agreement shall be construed to express or imply a joint
venture, partnership, or relationship other than vendor and purchaser of the
Services described in this Agreement.
Except as expressly noted herein, no employee, agent, or representative
of either party shall have the authority to bind the other party in any way. No
employee, agent or other representative of either party shall at any time be
deemed to be under the control or authority of the other party, or under the
Joint control of both parties. Each party shall be fully liable for all workers'
compensation premiums and liability, federal, state and local withholding taxes
or charges with respect to its respective employees, and each agrees to
indemnify and defend the other from any claims brought against the other with
respect to such claims.
Section 11.2 Compliance with Laws
MODUS MEDIA understands and acknowledges that, in performing any
Services under an INTUIT Order, it may act only on instructions from INTUIT, and
shall take appropriate technical and organizational measures against
unauthorized or unlawful processing of confidential information and against
accidental loss or destruction of, or damage to, confidential information.
MODUS MEDIA shall perform its obligations under this Master Agreement in
compliance with all applicable laws and regulations, including Generally
Accepted Accounting Principles (GAAP).
Each party acknowledges and agrees that the Software, all documentation
and other technical information delivered hereunder ("Technical Data") are
subject to export controls imposed by the United States Export Administration
Act of 1979, as amended (the "Act") (or any future export control law) and the
Export Administration Regulations ("EAR") promulgated thereunder. MODUS MEDIA
agrees not to export, reexport, or transmit, directly or indirectly, any
Technical Data outside the United States or Canada without complying with the
Act and without the prior written consent of the Bureau of Export Administration
of the U.S. Department of Commerce, or such other governmental entity as may
have jurisdiction over such export or transmission. MODUS MEDIA certifies that
neither the Technical Data nor its direct product: (a) is intended to be used
for any purpose prohibited under the Act or EAR including, without limitation,
nuclear related activities or chemical or biological weapons or missiles; or (b)
is intended to be shipped, exported or transmitted, either directly or
indirectly to any foreign national or to any foreign destination outside the
United States or Canada. This section shall survive any termination or
expiration of this Agreement. INTUIT and MODUS MEDIA represent and warrant all
products provided to MODUS MEDIA hereunder, including commodities, technology,
and software, will be imported or exported in accordance with applicable laws
and regulations including specifically U.S. laws and regulations. Diversion
contrary to U.S. law is prohibited. Resale or reexport to Iraq, Sudan, Iran,
Syria, Cuba, Libya or North Korea is prohibited. Transfer or resale to nuclear,
missile, chemical or biological weapons end users or end uses is prohibited.
Resale or reexport to Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia,
Estonia, Georgia, Kazakhstan, Kyrgystan, Laos, Latvia, Lithuania, Moldova,
Mongolia, People's Republic of China (excluding Hong Kong), Romania, Russia,
Tajikstan, Turkmenistan, Ukraine, Uzbekistan, or Vietnam without approval of the
U.S. Government is
11
12
prohibited. MODUS MEDIA shall subscribe to the publications "Denied Parties,
Specifically Designated Nationals" and "The Entity List", (the "Lists") from a
qualified service such as OCR. RegData or other regulatory provider approved by
INTUIT. All Customer Orders should be screened against said Lists at initiation
of order. MODUS MEDIA shall retain documentation, entering the dates of the
screenings, the name of the person(s) performing the screenings, and the date of
the list used to perform the screening, in an electronic file. This log or file
MUST BE MAINTAINED FOR AUDIT PURPOSES for a period of 6 years, after which MODUS
MEDIA will notify INTUIT before destroying. If a Customer appears on any of the
Lists, MODUS MEDIA shall immediately cancel all pending orders and stop any
in-transit shipments to the Customer, to the extent legally possible, and shall
promptly notify INTUIT of such Customer.
MODUS MEDIA is responsible for obtaining the required licenses, paying
permit fees, duties and customs fee in order to perform its obligations under
this contract. INTUIT is responsible for providing MODUS MEDIA with an Export
License Requirement Matrix, outlining the commodity Name, ECCN, Schedule B and
License Requirement by Country Group for all products and technology being
exported. MODUS MEDIA is responsible for preparing and submitting all required
documentation in connection with the invoicing of INTUIT products. If MODUS
MEDIA delivers products to any customer in accordance with INTUIT's direction,
INTUIT agrees to indemnify MODUS MEDIA for any consequent direct or indirect
violation of the applicable export control laws. MODUS MEDIA will retain for a
period of 6 years, documents and other evidence sufficient to enable INTUIT to
support governmental reviews or audits. MODUS MEDIA further agrees to assist
INTUIT, upon request, in any appropriate legal or administrative proceeding
regarding the validity of such licenses, fees and taxes.
Section 11.3 Work Product
Work product MODUS MEDIA has developed to provide the Services in this
Agreement is the exclusive property of MODUS MEDIA. Information contained within
the work product which is INTUIT confidential, relates to INTUIT's customer
information, and purchases, and INTUIT inventory standard cost, is the exclusive
property of INTUIT and will be surrendered to INTUIT upon demand.
Section 11.4 Validity
If any of the provisions of this Agreement are declared to be invalid,
such provisions shall be severed from this Agreement and the surviving
provisions shall remain in full force and effect.
Section 11.5 Waiver
A waiver of any default hereunder or of any of the terms and conditions
of this Agreement shall not be deemed to be a continuing waiver or a waiver of
any other default or of any other term or condition, but shall apply solely to
the instance to which such waiver is directed. The exercise of any right or
remedy provided in this Agreement shall be without prejudice to the right to
exercise any other right or remedy provided by law or equity.
Section 11.6 Assignability
This Agreement shall not be assigned by either party without the prior
written consent of the other party, which shall not be unreasonably withheld or
delayed; provided that the assignee is of the
12
13
same or greater creditworthiness as the assignor. Notwithstanding the preceding
sentence, INTUIT and MODUS MEDIA may assign their rights and obligations
hereunder to any subsidiary or affiliate or in connection with a merger or other
business combination in which it is not the surviving entity, the assignee is a
competitor of the nonassigning party. Any such attempted assignment in violation
of this provision shall be null and void.
Section 11.7 Governing Law
THE VALIDITY, PERFORMANCE, CONSTRUCTION, AND INTERPRETATION OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING
CONFLICTS OF LAWS PRINCIPLES AND EXCLUDING THE UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
Section 11.8 Dispute Resolution
The parties will attempt in good faith to promptly resolve any
controversy or claim arising out of or relating to this Master Agreement or
Statement of Work, except for matters pertaining to Intellectual Property,
through negotiations between the parties before resorting to other remedies
available to them. Any such dispute shall be referred to appropriate senior
executives of each party who shall have the authority to resolve the matter. If
the senior executives are unable to resolve the dispute within ten (10) business
days from the date the senior executives receive notification of the dispute in
writing, the parties may by agreement refer the matter to an appropriate forum
of alternative dispute resolution ranging from mediation to arbitration. If the
parties cannot resolve the matter or if they cannot agree upon an alternative
form of dispute resolution, then either party may pursue resolution of the
matter through litigation.
Section 11.9 Force Majeure
Neither party shall be liable to the other party for any alleged loss or
damages resulting from delays in performance caused by acts of the other party,
acts of civil or military authority, governmental priorities, earthquake, fire,
flood, epidemic, quarantine, energy crisis, strike, labor trouble, war, riot,
accident, shortage, delay in transportation, service outage of a telephone
provider or public utility, or any other causes beyond the reasonable control of
the party whose performance is so delayed, except that INTUIT shall at all times
be responsible for the prompt payment of all of its financial obligations to
MODUS MEDIA. If MODUS MEDIA's performance of Services is delayed by Force
Majeure, the time for performance shall be extended for the period of Force
Majeure.
Section 11.1O Employee Solicitation Prohibited
Each of the parties hereto recognize that the experience, dedication,
and know-how of their employees represents an important, valuable,
unquantifiable asset and a significant training investment. Therefore, for the
Term of this Master Agreement and for six (6) months after an employee is
involved in any work pursuant to or related to this Agreement, neither party
may, without the prior written permission of the other party, directly solicit
for employment for similar duties as currently performed, any employee of the
other party. For purposes of this Section, "directly solicit" shall be defined
as a party and/or search firm employed by the party and acting on the party's
behalf initiating a discussion with an employee of the other party regarding a
job at the soliciting party, and requesting that the employee of the party
submit a resume and/or interview for the job. "Directly solicit" shall not be
deemed to include public advertising (e.g., in newspapers, trade publications,
or
13
14
solicitation by independent recruiters).
Section 11.11 Authorized Representatives
Each party shall, at all times, designate one representative who shall
be authorized to take any and all action and/or grant any approvals required in
the course of performance of this Agreement. Such representations shall be fully
authorized to act for and bind such party including the approval of amendments
to this Agreement. Until written notice to the contrary (as provided for in
Section 14.12), the authorized representatives of the parties are as follows:
For INTUIT: For MODUS MEDIA:
Xxxx Xxxxxx Xxx Xxxxxxxxx
Xx. Vice President Chief Operating Officer
Intuit Inc. Modus Media International, Inc.
0000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Telephone Number 000-000-0000 Telephone Number 000-000-0000
Copy to: Xxxxxxxxx Xxxxxxxxx, General Counsel Xxxx X. Xxxxxx, General Counsel
The authorized representative's manager and manager's manager, and any
corporate officer shall also have the power to bind the party. No other
employee, agent, or representative has the authority to bind the party.
Section 14.13 Notices
Any notice regarding non-performance, breach, termination, or renewal
required or permitted to be given under this Master Agreement shall be given in
writing and shall be hand delivered or deposited, postage prepaid, registered
or certified mail, in the United States or other country's mail, or sent by
express delivery, addressed to MODUS MEDIA, or INTUIT, as the case may be, at
the address shown below or at such other address as shall be given by either one
to the other in writing. All other notices may be sent by regular mail or
facsimile. All notices shall be deemed to have been given and received on the
earlier of actual delivery or three (3) days from the date of postmark.
For INTUIT: For Modus Media:
Name Xxxx Xxxxxx Xxx Xxxxxxxxx
Title Sr. Vice President President, North America Region
Intuit Inc. Modus Media International, Inc.
0000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Copy to: Xxxxxxxxx Xxxxxxxxx, General Counsel Xxxx X. Xxxxxx, General Counsel
Section 14.14 Entire Agreement
All parties acknowledge having read this Agreement and agree to be bound
by its terms. This Master Agreement and the Schedules and Exhibits attached
hereto contain the complete, final and
14
15
exclusive statement of the terms of the agreement between the parties relating
to the subject matter hereof and supersedes all prior understandings, writings,
proposals, representations or communications, oral or written, relating to the
subject matter hereof. This Agreement may not be modified except in writing
executed by both parties. The terms and conditions of this Agreement shall
prevail notwithstanding any conflict with the terms and conditions of any
Invoice or other form used by MODUS MEDIA, or any purchase order of any other
form used by INTUIT.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
effective date set forth in Section 1.1:
INTUIT INC. APPROVED
Intuit Legal Dept.
By: /s/ XXXXX XXXXXXXXXX Date August 30, 1999
------------------------------------
Its: Vice President By: /s/ XXXXXXX XXXXXXX
Worldwide Operations -------------------------------------
MODUS MEDIA INTERNATIONAL, INC.
By: /s/ XXXXXXX X. XXXXX
Its: Chief Executive Officer
15
