EXHIBIT 10.18
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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by and between
INTUIT INC.
and
XXXXXX.XXX INC.
Dated
May 14, 1999
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This ("Agreement") is entered into as of the 14th day of
May, 1999 ("Effective Date"), by and between Intuit Inc. a Delaware corporation,
located at 0000 Xxxxxx Xxx., Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Intuit"), and
Xxxxxx.xxx Inc., a Delaware corporation, located at 0000 00xx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxxx, XX 00000-0000 ("Client").
RECITALS
A. Intuit maintains sites on the Internet at xxxx://xxx.xxxxxxx.xxx (the
"Xxxxxxx.xxx Site") and at xxxx://xxx.xxxxxxxxxx.xxx (the "QuickBooks
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Site"), and owns, manages or is authorized to place advertising on the
following affiliated Web sites worldwide xxxx://xxx.xxxxxxx.xxxxxx.xxx
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("Excite Money & Investing Site"), xxxx://xxx.xxxxxxx.xxxxxxxxxx.xxx
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("WebCrawler Money & Investing Site"), and xxxx://xxx.xxxxxxx.xxx.xxx
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("XXX.xxx Personal Finance Site") (all such sites, including the
Xxxxxxx.xxx Site and QuickBooks Site, collectively referred to as the
"Intuit Sites"). Within the Intuit Sites, content is organized into topical
channels ("Channels").
B. Intuit maintains the Quicken'99 software product into which Banner
Advertisements are served ("Quicken Software").
C. Client is engaged in the business of the sale and delivery of electronic
postage at its Web site located at xxxx://xxx.xxxxxx.xxx (the "Client
Site").
D. Client wishes to promote its business to users of the Intuit Sites through
promotions and advertising in various portions of the Intuit Sites.
Therefore, the parties agree as follows:
1. ADDITIONAL DEFINITIONS
1.1 "Above-the-Fold" means the portion of a page that is designed to be visible
on a standard computer screen with a resolution of 640 pixels by 480 pixels
without requiring the user to scroll horizontally or vertically through the
page.
1.2 "Banner Advertisement" means advertisements consisting of billboard-like
graphics displayed in a standardized specific location on the Intuit Sites,
which advertisements click-through to the Client Site, or such other
address mutually agreed upon by the parties from time to time.
1.3 "Channel Home Page" means, with respect to any Channel the introductory or
welcome page for such Channel.
1.4 "Client Competitor" means any of the entities listed on Exhibit A to this
Agreement, as such list may be amended by mutual agreement by the parties,
[***].
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1.5 "Client Graphic" means those mutually agreed upon graphics, artwork, logos,
descriptions and other material provided by Client for use on the Intuit
Sites.
1.6 "Impression" is generated where a User's browser software requests a file
via the World Wide Web service of the Internet, where such file contains a
Banner Advertisement or Link.
1.7 "Launch Date" means [***].
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[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
1.8 "Link" means a hypertext text and/or graphic link from the Intuit Sites to
the Client's Site.
1.9 "Net Transaction Revenues" means the aggregate amount of transaction fees
received by Client during the Term from a New Customer for the purchase of
U.S. postage from Client by such New Customer, less amounts attributable to
taxes, shipping, returns, bad debt, handling, credit card charges and
similar charges (collectively, "Deductions"). Notwithstanding the
foregoing, such Deductions, with the exception of credit card charges,
shall not exceed [***].
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1.10 New Customer" means a User who [***]
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1.11 "Sponsor Client Graphic" means a Client Graphic which indicates Client as
a "Sponsor" with respect to the sale or delivery of electronic postage,
which graphics click-through to the Client Site, or such other address
mutually agreed upon by the parties from time to time.
1.12 "User" means any person or entity that accesses one or more pages on the
Intuit Sites and is transported via the World Wide Web from the Intuit Site
to the Client's Site.
2. SMALL BUSINESS CHANNEL PROMOTION
2.1 Promotions. Commencing on the Launch Date and continuing throughout the
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Term, Intuit shall promote Client on the "Small Business" Channel of the
Xxxxxxx.xxx Site, Excite Money & Investing Site and WebCrawler Money &
Investing Site as follows:
2.1.1 A Sponsor Client Graphic [***] shall be rotated amongst the
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following pages (or their successor pages, if any): (1) "Starting a
Business" page, (2) "Managing your Business" page, (3) "Marketing"
page, (4) "Legal Issues" page, and (5) "Taxes & Accounting" page.
Each such Sponsor Client Graphic shall be Above the Fold.
2.1.2 A Sponsor Client Graphic [***] where a sponsorship strip exists.
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2.1.3 A text Link to be located [***] on the "Small Business" Channel home
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page of the Xxxxxxx.xxx Site, Excite Money & Investing Site and
WebCrawler Money & Investing Site .
2.1.4 A text Link on the [***] of the "Small Business" Channel Home Page
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of the Xxxxxxx.xxx Site, Excite Money & Investing Site and
WebCrawler Money & Investing Site.
2.1.5 A Sponsor Client Graphic [***], will appear on the "Small Busines
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Mailing/Shipping, OnLine Postage" page in the "Small Business"
Channel, when such page is made publicly available on the applicable
Intuit Sites. Such graphic shall be displayed in a position mutually
agreed upon by the parties.
2.2 Email Promotions. Intuit will place a Sponsor Client Graphic [***]. For
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the avoidance of doubt, it is understood that the [***] shall not contain
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[***].
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2.3 Additional Banner Advertisements. Commencing on the Launch Date and
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continuing throughout the Term, Intuit will include on the Xxxxxxx.xxx
Site, Banner Advertisements [***].
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2.4 Total Small Business Impressions. Intuit [***] Impressions of Client's
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Banner Advertisements, Client Graphics and Links described in this Section
2 during the entire Term of this Agreement. Intuit acknowledges it is
Client's preference to have Intuit deliver such Impressions as follows:
[***]
---
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
2
If Intuit fails to deliver such Impressions during the [***] period
---
following the Launch Date, Intuit agrees to run such promotions in
equivalent areas and placement, as mutually agreed upon by the parties,
until such Impressions have been delivered.
3. [***] PROMOTION
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3.1 Promotions. [***]
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3.1.1 A Sponsor Client Graphic of [***] shall be rotated throughout the
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[***]. Each such Sponsor Client Graphic shall be [***]
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3.1.2 A Sponsor Client Graphic [***] to be found [***]
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3.2 Additional Banner Advertisements. Commencing on the Launch Date and
--------------------------------
continuing throughout the Term, Intuit will include on the Xxxxxxx.xxx
Site, Excite Money & Investing Site, WebCrawler Money & Investing Site, and
XXX.xxx Personal Finance Site, Banner Advertisements [***].
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3.3 Total [***] Impressions. Intuit [***] Impressions of Client's Banner
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Advertisements and Client Graphics described in this Section 3 during the
entire Term of this Agreement. Intuit acknowledges it is Client's
preference to have Intuit deliver such Impressions as follows:
[***]
---
If Intuit fails to deliver such Impressions during [***] following the
---
Launch Date, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties, until such Impressions
have been delivered.
4. XXXXXXX.XXX SITE HOME PAGE PROMOTION
4.1 Promotions. Commencing on the Launch Date and continuing for [***]
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throughout the Term, as mutually agreed by the parties, Intuit shall
promote Client on the Xxxxxxx.xxx Site home page, with a Sponsor Client
Graphic [***].
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4.2 Total Impressions. Intuit [***] Impressions of Client's Sponsor Graphics
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described in this Section 4 during the period agreed upon by the parties.
If Intuit fails to deliver such Impressions during the agreed upon time
period, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties until such Impressions
have been delivered.
5. QUOTES PLUS TAB EXCITE MONEY & INVESTING SITE PROMOTION
5.1 Promotions. Commencing on the Launch Date and continuing for [***]
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throughout the Term, as mutually agreed by the parties, Intuit shall
promote Client on the "Quotes Plus" tab within the "Investment" Channel of
the Excite Money & Investing Site with a Sponsor Client Graphic[***].
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5.2 Total Impressions. Intuit [***] Impressions of Client's Sponsor Graphics
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described in this Section 5 during the period agreed upon by the parties.
If Intuit fails to deliver such Impressions during the agreed upon time
period, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties until such Impressions
have been delivered.
6. QUICKBOOKS SITE PROMOTION
6.1 Banner Advertisements. Commencing on the Launch Date and continuing
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throughout the Term, Intuit will include Banner Advertisements [***] on the
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QuickBooks Site.
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
6.2 Total Impressions: Intuit [***] Impressions of Banner Advertisements
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described in this Section 6 during the Term of this Agreement. Intuit
acknowledges it is Client's preference to have Intuit deliver such
Impressions as follows:
[***]
---
If Intuit fails to deliver such Impressions during [***]
---
following the Launch Date, Intuit agrees to run such promotions in
equivalent areas and placement, as mutually agreed upon by the parties,
until such Impressions have been delivered.
7. QUICKEN SOFTWARE PROMOTION
7.1 Banner Advertisements. Commencing on the Launch Date and continuing
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throughout the Term, Intuit will serve Banner Advertisements [***] into the
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Quicken Software.
7.2 Total Impressions: Intuit [***] Impressions of Banner Advertisements
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described in this Section 7 during the Term of this Agreement. Intuit
acknowledges it is Client's preference to have Intuit deliver such
Impressions as follows:
[***]
---
If Intuit fails to deliver such Impressions during [***] following the
---
Launch Date, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties, until such Impressions
have been delivered.
8. LAUNCH DATE, RESPONSIBILITY FOR INTUIT SITES AND REPORTING
8.1 Client Obligations. Client will use reasonable efforts to assist Intuit in
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implementing the promotional placements and advertising described in the
Agreement. The parties recognize that the Launch Date can be met only if
Client provides final versions of all Client Graphics, text, Banner
Advertisements and other promotional media and valid URL links necessary to
implement the promotional placements and advertising described in this
Agreement (collectively, "Impression Material") to Intuit at least ten (10)
days prior to the Launch Date.
8.2 Untimely Delivery Options. In the event that Client fails to provide the
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Impression Material to Intuit at least ten (10) days in advance of the
Launch Date, Intuit may, at its sole discretion (i) reschedule the Launch
Date to the earliest practicable date according to the availability of
Intuit's engineering resources after delivery of the complete Impression
Material or (ii) commence delivery of Impressions based on Impression
Material in Intuit's possession at the time and/or reasonable placeholders
created by Intuit.
8.3 Intuit Sites. Intuit will have sole responsibility for providing, hosting
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and maintaining, at its expense, the Intuit Sites. Subject to the terms
and conditions set forth herein, including without limitation, the
obligations of Intuit set forth in Sections 2-7, Intuit will have sole
control over the "look and feel" of the Intuit Sites including, but not
limited to, the display, appearance and placement of the parties'
respective names and/or brands and the promotional links. Notwithstanding
the above, Client acknowledges that the Banner Advertisements may be served
by a third party authorized by Intuit ("Authorized Advertisement Server")
8.4 Reports. Intuit or its Authorized Advertisement Server will provide Client
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with monthly reports ("Usage Reports") substantiating the number of
Impressions of Client's Banner Advertisements, Client Graphics, Sponsor
Client Graphics and Links displayed on the Intuit Sites, the total number
of click-throughs generated by each such advertisement or graphic, and such
other information as the parties shall mutually agree.
8.5 Records/Audit. Intuit will maintain accurate records with respect to the
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calculation of Impressions delivered pursuant to this Agreement. Client
may, upon no less than thirty (30) days prior written notice to
[**]Confidential treatment has been requested for the racketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
Intuit, cause an independent Certified Public Accountant to inspect all
relevant records of Intuit upon which the calculation of Impressions under
the Usage Reports are based during Client's normal business hours. The fees
charged by such Certified Public Accountant in connection with the
inspection will be paid by Client unless the number of Impressions are
determined to have been less than ninety-five percent (95%) of the
Impressions due to Client, in which case Client will be responsible for the
payment of the reasonable fees for such inspection. In addition, if the
audit reveals such shortfall in the number of Impressions generated, Intuit
shall continue to display Client's Banner Advertisements, Client Graphics,
Sponsor Client Graphics and Links on the Intuit Sites as set forth herein.
The audit rights set forth herein shall continue for one (1) year following
the termination of this Agreement for any reason. No such audit may occur
more than once a year during the Term.
9. EXCLUSIVITY
[***].
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10. FEES
10.1 Sponsorship, Advertising and Exclusivity Fees. Client will pay Intuit
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sponsorship and advertising fees of $2,644,010 and an exclusivity fee of
$661,003. Such fees shall be paid to Intuit as follows. An initial fee of
$[***] shall be due and payable on the Effective Date. The remaining
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balance of $[***] shall be paid to Intuit [***]. Each [***] should be
--- --- ---
payable in advance and due no later than [***].
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10.2 [***]. Separate and apart from the fees in Subsection 10.1 above, at such
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time [***]. Client will [***]. Within fifteen (15) days after the end of
--- ---
each month, Client will provide a [***].
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10.3 Records/Audit. Client will maintain accurate records with respect to the
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calculation of all Transaction Fees due under this Agreement. Intuit may,
upon no less than thirty (30) days prior written notice to Client, cause an
independent Certified Public Accountant to inspect all relevant records of
Client upon which the calculation of such payments are based during
Client's normal business hours. The fees charged by such Certified Public
Accountant in connection with the inspection will be paid by Intuit unless
the payments made to Intuit are determined to have been less than ninety-
five percent (95%) of the payments actually owed to Intuit, in which case
Client will be responsible for the payment of the reasonable fees for such
inspection. In addition, Client shall immediately remit payment to Intuit
for the full amount of any disclosed shortfalls. The audit rights set
forth herein shall continue for one (1) year following the termination of
this Agreement for any reason. No such audit may occur more than once a
year during the Term.
10.4 Cost and Expenses. Unless otherwise provided in this Agreement, each
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party shall bear its own costs and expenses in connection with its
activities performed under this Agreement.
11. PUBLICITY
Unless required by law, neither party will make any public statement, press
release or other announcement relating to the terms of or existence of this
Agreement without the prior written approval of the other. Notwithstanding
the foregoing, the parties agree to issue a mutually acceptable initial
press release regarding the relationship between Intuit and Client, within
thirty (30) days of the Effective Date unless agreed otherwise by the
parties.
12. TERM AND TERMINATION
12.1 Term. Unless otherwise terminated as specified in this Section 12, the
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term of this Agreement shall begin on the Effective Date and will not end
until the later of (a) [***] in accordance with the terms set forth herein
---
("Term").
[***]Confidential treatment has been requested for the bracketed potions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
12.2 Termination. Either party may terminate this Agreement if the other party
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materially breaches a material obligation hereunder and such breach remains
uncured for thirty (30) days following the notice to the breaching party of
the breach and the notifying party's intention to terminate. All
undisputed payments that have accrued prior to the termination or
expiration of this Agreement for any reason will be payable in full within
thirty (30) days thereof. In addition, upon the termination of this
Agreement by Client for any reason, a pro-rata amount of the [***] shall be
---
refunded to Client calculated as follows: the [***] less the cost of the
---
Impressions displayed for such month as of the effective date of the
termination, calculated on an average CPM basis.
12.3 Survival. The provisions of Section 6.5, Section 10.3, Section 12.3,
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Section 13.1, Section 14, Section 15, Section 16, Section 17, and Section
18 will survive any termination or expiration of this Agreement.
12.4 Renewal. If Intuit elects to provide advertising, sponsorship or other
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promotional space on all or any portion of the Intuit Sites for a Client
Competitor, Intuit agrees [***].
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13. TRADEMARK OWNERSHIP AND LICENSE
13.1 Ownership. Client will retain all right, title and interest in and to its
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trademarks, service marks and trade names worldwide, subject to the limited
license granted to Intuit hereunder. Intuit will retain all right, title
and interest in and to its trademarks, service marks and trade names
worldwide, subject to the limited license granted to Client hereunder.
13.2 License. Each party hereby grants to the other a non-exclusive, limited
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license to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding advertising and
trademark usage as shall be established or changed from time to time in
each party's sole discretion. Upon the expiration or termination of this
Agreement, each party will cease using the trademarks, service marks and/or
trade names of the other except as the parties may agree in writing or to
the extent permitted by applicable law.
14. CONTENT OWNERSHIP
Client will retain all right, title and interest in and to the Client Site
worldwide including, but not limited to, ownership of all copyrights, look
and feel and other intellectual property rights therein. Intuit will
retain all right, title, and interest in and to the Intuit Sites worldwide
including, but not limited to, ownership of all copyrights, look and feel
and other intellectual property rights therein.
15. CONFIDENTIALITY AND USER DATA
15.1 Definition. For the purposes of this Agreement, "Confidential Information"
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means this Agreement, and all information about the disclosing party's (or
its suppliers') business or activities that is proprietary and
confidential, which shall include all business, financial, technical and
other information of a party marked or designated by such party as
"confidential or "proprietary" at the time of disclosure. In addition, the
Usage Reports are considered to be confidential to Intuit.
15.2 Exclusions. Confidential Information will not include information that (i)
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is in or enters the public domain without breach of this Agreement, (ii)
the receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure obligation,
(iii) the receiving party rightfully knew prior to receiving such
information from the disclosing party or (iv) the receiving party develops
independent of any information originating from the disclosing party.
15.3 Restrictions. Each party agrees (i) that it will not disclose to any third
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party or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all Confidential
Information of the other party in its possession or control, which will in
no event be less than the measures it uses to maintain the confidentiality
of its own information of similar importance.
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
6
15.4 User Data. All information and data provided to Intuit by users of the
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Intuit Sites or otherwise collected by Intuit relating to user activity on
the Intuit Sites shall be retained by and owned solely by Intuit. All
information and data provided to Client by users of the Client Site or
otherwise collected by Client relating to user activity on the Client Site
shall be retained by and owned solely by Client. Each party agrees to use
such information only as authorized by the user and shall not disclose,
sell, license, or otherwise transfer any such information to any third
party (except as required by law) or use the user information for the
transmission of "junk mail," "spam," or any other unsolicited mass
distribution of information.
15.5 Limitations. Notwithstanding the foregoing, each party may disclose
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Confidential Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by
law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
16. WARRANTY/INDEMNITY/DISCLAIMER OF WARRANTIES
16.1 By Client. Client represents and warrants that (i) it has full power and
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authority to enter into this Agreement; (ii) entering into and performance
of this Agreement by Client does not violate, conflict with, or result in a
material default under any other contract or agreement to which Client is a
party, or by which it is bound; and (iii) it has the right to make
available the services on the Client Site.
16.2 By Intuit. Intuit represents and warrants that (i) it has full power and
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authority to enter into this Agreement; (ii) entering into and performance
of this Agreement by Intuit does not violate, conflict with, or result in a
material default under any other contract or agreement to which Intuit is a
party, or by which it is bound; and (iii) it has the right to make
available on the Intuit Sites the Banner Advertisements, Sponsor Client
Graphics, Links and other advertisements placed hereunder.
16.3 By Client. Client will defend and/or settle any third party claim brought
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against Intuit, its affiliates, officers, directors, employees, consultants
and agents arising from: (1) a breach of Client's representations or
warranties under Section 16.1; (2) any claim that Client's Impression
Materials infringe or violate any third party's copyright, U.S. patent,
trade secret, any patent outside of the US which Client has knowledge of,
or trademark; or (3) content provided by Client for the Client Site or the
products and services of Client offered on the Client Site, and will pay
resulting costs, damages and reasonable attorneys' fees finally awarded,
provided that Intuit promptly notified Client in writing of any and all
such claims. Client has sole control of the defense and all related
settlement negotiations and Intuit reasonably cooperates with Client with
the defense and/or settlement thereof, at Client's expense.
Notwithstanding the foregoing, Client shall not, without Intuit's prior
written consent (which consent shall not be unreasonably withheld or
delayed), make any such settlement that imposes any obligation, financial
or otherwise, upon Intuit. Intuit may not settle or compromise such claim,
action or allegation, except with the prior written consent of Client.
Intuit may have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim, action or allegation, at
Intuit's cost and expense.
16.4 By Intuit. Intuit will defend and and/or settle any third party claim
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brought against Client, its affiliates, officers, directors employees,
consultants and agents arising from (1) a breach of Intuit's
representations or warranties under Section 16.2; or (2) any claim arising
from the Intuit Sites other than content or services provided by Client,
and will pay resulting costs, damages and reasonable attorneys' fees
finally awarded, provided that Client promptly notifies Intuit in writing
of any and all such claims. Intuit has sole control of the defense and all
related settlement negotiations, and Client reasonably cooperates with
Intuit with the defense and/or settlement thereof at Intuit's expense.
Notwithstanding the foregoing, Intuit shall not, without Client's prior
written consent (which consent shall not be unreasonably withheld or
delayed), make any such settlement that imposes any obligations, financial
or otherwise, upon Client. Client may not settle or compromise such claim,
action or allegation, except with the prior written consent of Intuit.
Client may have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim, action or allegation, at
Client's costs and expense.
7
16.5 DISCLAIMER. EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
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WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT
LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
17. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 15 AND 16, IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES
HEREUNDER (EXCEPT UNDER SECTIONS 15 AND 16), WHETHER IN CONTRACT, TORT OR
ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO
BE PAID BY CLIENT TO INTUIT HEREUNDER.
18. GENERAL
18.1 Assignment. Neither party may assign this Agreement, in whole or in part,
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without the other party's written consent (which will not be unreasonably
withheld or delayed); provided however, that either party may assign its
rights and obligations hereunder in the event of a sale of all, or
substantially all of such party's assets related to this Agreement, whether
by merger, reorganization, operation of law or otherwise, or (2) either
party's assignment and/or delegation of its rights and responsibilities
hereunder to a wholly-owned subsidiary or joint venture in which the
assigning party holds an interest. Any attempt to assign this Agreement
other than as permitted above will be null and void. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the
benefit of both parties, their successors and permitted assigns.
18.2 Applicable Law and Jurisdiction. This Agreement and the performance of
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the parties under this Agreement shall be governed by and construed in
accordance with the laws of the State of California, U.S.A., except that
body of law concerning conflicts of laws. In any action relating to the
parties, the parties consent to jurisdiction in a state or federal court in
Santa Xxxxx County, California.
18.3 Notice. Unless otherwise stated, all notices required under this Agreement
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shall be in writing and shall be considered given (i) when delivered
personally, (ii) within five (5) days of mailing, certified mail, return
receipt requested and postage prepaid (iii) one (1) day after deposit with
a commercial overnight carrier, or (iv) when delivered by facsimile
transmission. All communications will be addressed as follows (unless
changed by notice):
To Client: Xxxxxx.xxx
0000 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000-0000
Attn: Vice President, Business Development
To Intuit: If hand delivered or faxed:
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Intuit Inc.
0000 Xxxxxx Xxxxxx MS 2550
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Phone: 000.000.0000
Fax: 000.000.0000
If mailed:
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Intuit Inc.
X.X. Xxx 0000 XX 0000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: General Counsel
8
18.4 No Agency. The parties are independent contractors and will have no power
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or authority to assume or create any obligation or responsibility on behalf
of each other. This Agreement will not be construed to create or imply any
partnership, agency or joint venture.
18.5 Force Majeure. Any delay in or failure of performance by either party
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under this Agreement will not be considered a breach of this Agreement and
will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts of
God, power outages, failures of the Internet, and Client's failure to
obtain any necessary governmental approval required in connection with the
performance of its obligations hereunder.
18.6 Severability. In the event that any of the provisions of this Agreement
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are held to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
18.7 Entire Agreement. This Agreement is the complete and exclusive agreement
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between the parties with respect to the subject matter hereof, superseding
any prior agreements and communications (both written and oral) regarding
such subject matter. This Agreement may only be modified, or any rights
under it waived, by a written document executed by both parties.
9
18.8 Counterparts. This Agreement may be executed in counterparts, each of
------------
which will serve to evidence the parties' binding agreement.
Client: Xxxxxx.xxx Inc. Intuit Inc.
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By: By:
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Name: Name:
--------------------------- ---------------------------
Title: Title:
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Date: Date:
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10
EXHIBIT A
CLIENT COMPETITORS
E-Stamp
Pitney Xxxxx
Neopost
[***].
---
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
11
