Exhibit 10.41



 



EXHIBIT 10.41






INTUIT

MASTER SERVICES AGREEMENT



THIS AGREEMENT (“Agreement”) is made and entered into as of the date of the
later signature below (the “Effective Date”) by and between Intuit Inc., a
Delaware corporation, with offices at 2535 Garcia Avenue, Mountain View, CA
94043, on behalf of itself, and its Enterprise Members (as defined below and
for whom Services (as defined below) may be performed as set forth on
applicable Statements of Work) (“Intuit”), and Arvato Services, Inc. (including
for all purposes of this Agreement any of its employees and/or
Intuit-authorized subcontractors performing services hereunder) (“Contractor”),
as further identified in Exhibit A, which Exhibit A may be amended by
Contractor from time to time. For the purposes of this Agreement, Enterprise
Members shall include all affiliates, subsidiaries and related companies that
Intuit controls by ownership of fifty percent (50%) or greater equity interest,
or directly controls the day-to-day management by management contract. Intuit
shall be responsible for the performance or non-performance of any such
Enterprise Members in connection with this Agreement. Contractor and Intuit
hereby agree as follows:


1.          Independent Contractor. In accordance with the mutual intentions of Intuit
and Contractor, this Agreement establishes between them an independent
contractor relationship, and all of the terms and conditions of this Agreement
shall be interpreted in light of that relationship. The parties do not intend
to create an employer-employee relationship between Intuit and Contractor, and
nothing in this Agreement shall be construed to create that type of
relationship between the parties.


2.          Services.


(a)       From time to time during the Term, Intuit may request Contractor to perform
certain services (collectively, the “Services”) pursuant to Statement(s) of
Work, which will expressly incorporate the terms and conditions of this
Agreement and which shall be substantially in the form of the representative
Statement of Work set forth in Exhibit B or such other form as may be mutually
agreed upon by the parties. Each Statement of Work will, at a minimum,
specify: (i) Contractor’s specific obligations, including all deliverables,
improvements, and tasks the Contractor shall perform, develop or provide in the
course of performing the Services; (ii) the performance schedule relating to
such Services; (iii) the applicable fees, discounts and payment terms for the
Services; (iv) any responsibilities of Intuit; (v) certain assumptions on which
Contractor’s performance of Services or provision of deliverables is based; and
(vi) any other pertinent terms and conditions. Neither Intuit nor Contractor
will be obligated to enter into any Statement of Work, and Contractor will not,
and will not be obligated to, perform any Services or provide any deliverables
not specifically set forth in a Statement of Work. In the event of a conflict
between the provisions of this Agreement and the specific provisions set forth
in a Statement of Work, the provisions of this Agreement shall control except
to the extent the provisions of the Statement of Work specifically reference
the provisions of this Agreement that are inconsistent therewith, in which case
the Statement of Work shall control for that engagement only.


(b)       Contractor agrees to use commercially reasonable efforts to perform the
Services in accordance with the terms and conditions of this Agreement.
Contractor owns or leases, or intends to purchase or lease or otherwise obtain
at its own expense (subject to change control as set forth in Section 2(f)),
all the equipment and tools it requires to perform the Services. Contractor’s
performance of the Services must comply with the terms and conditions of this
Agreement (including without limitation any applicable Statement of Work);
however, Contractor shall determine the means and methods of performing these
Services. Contractor acknowledges that time is of the essence with respect to
Services that result in deliverables to be provided to Intuit’s customers and
as set forth in a Statement of Work. The parties acknowledge and agree that
the Services under any Statement of Work may be dependent upon the timely and
satisfactory completion of conditions or provision of resources by Intuit
(“Dependencies”). In the event any Dependencies have not been satisfied,
Contractor may, solely to the extent an activity or obligation of Contractor is
directly and materially adversely impacted by such failure and only for the
duration that such failure is not rectified, or only for the duration of any
unavoidable material adverse impact as a result of such failure, as applicable,
suspend or delay the materially impacted activities or obligations under the
applicable Statement of Work, and if applicable, proceed in accordance with the
change control procedure described in Section 2(f) or as otherwise set forth in
the applicable Statement of Work. Delays that either party becomes aware of
shall be reported immediately to the other party’s Project Manager (as defined
in Section 2(c)). The parties agree that any suspension or delay by Contractor
pursuant this Section 2(b) shall be limited solely to activities or obligations
that the parties mutually and in good faith agree cannot or should not proceed
absent completion of the Dependency or substantial increased or additional cost
or other resources. The right to delay or suspend Services under this Section
2(b) shall not apply to any failure to pay for Services within the agreed upon
time period.


(c)       Each party shall designate a “Project Manager” who shall be the principal
point of contact between the parties for all matters relating to Services
provided hereunder and under a particular Statement of Work. Each Statement of
Work shall contain an initial designation of a Project Manager for each party.
A party may designate a new Project Manager by written notice to the other
party. The Project Managers shall have the responsibilities set forth in a
particular Statement of Work.


(d)       Each party shall at all times take commercially reasonable precautions and
use commercially reasonable efforts to conduct all operations under this
Agreement in a manner to avoid the risk of loss, theft, or damage by vandalism,
sabotage or other means to any property of either party. Each party shall use
commercially reasonable efforts to periodically inspect all its work,
materials, and equipment facilities to discover and determine any of the
above-described conditions and except to the extent of any condition caused by
the other party’s negligence or fault, each party shall be solely responsible
for discovery, determination and correction of any such conditions. Each party
shall cooperate with the other party on all security matters and shall use
commercially reasonable efforts to promptly comply with any project security
requirements established by the other party with respect to the Services.
Compliance with these security requirements shall not relieve either party of
its responsibility for maintaining adequate security, nor shall such compliance
be construed as limiting either party’s obligation to undertake reasonable
action as required to comply with the terms and conditions of this Agreement.
Each party shall prepare and maintain accurate reports of incidents of loss,
theft or vandalism and shall furnish these reports to the other party in a
timely manner. Each party is solely responsible for the safety of its own
personnel. Each party shall comply with all applicable laws, ordinances and
regulations, including, but not limited to, permits required by federal, state,
country or municipal


 






 


ordinances, regulations and law, the Occupational Health and Safety Act (OSHA)
of 1970, Consumer’s Product Safety Act of 1972 and any and all Environmental
Protection Act ordinances, regulations and rules. Contractor agrees to adhere,
at all times during the Term, to Intuit’s Rules of Conduct for Onsite Service
Providers, the current version of which is attached hereto as Exhibit C. The
applicability to this Agreement and to Contractor of any material amendment to
Exhibit C is subject to Contractor’s prior written approval.


(e)       In the event that Intuit authorizes Contractor to use Intuit’s resources in
performing the Services hereunder, Contractor agrees to use such resources
solely in connection with the performance of the Services hereunder, or to
reasonably compensate Intuit for any use not in connection therewith as may be
agreed upon in good faith by the parties.


(f)       During the term of any Statement of Work, if any change in the scope of the
Services being performed under such Statement of Work occurs, either party may
propose a change or addition to the work. Such changes may affect the scope or
duration of the Services relating to any such Statement of Work, including
changes in the specifications and changes in any deliverables to be delivered.
The following procedures shall apply to any proposed change. Contractor
promptly shall assign a member of its team to define and describe the change
(an “Assessment”), and to notify Intuit of the cost and/or the impact on the
schedule set forth in the applicable Statement of Work if Contractor believes
that an adjustment in the fees to be paid to Contractor with respect to the
applicable Statement of Work, or an adjustment to the applicable performance or
delivery schedule, is required. If such change is initiated or caused by
Intuit, Contractor shall invoice Intuit for the work described in the
immediately preceding sentence at the rate of the applicable team member and
approved in writing by Intuit, all as set forth in such Statement of Work. In
the event Contractor initiates or causes such a change, Contractor shall not
charge Intuit for such Assessment. Intuit also may request a change in the
schedule without changing the scope of the Services relating to the applicable
Statement of Work. In either case, the parties shall follow the above
procedures and negotiate in good faith a reasonable and equitable adjustment in
the applicable fees, schedule and specifications. Once the scope of the change
has been determined, the parties shall determine jointly whether the change
should be implemented, deferred until a later phase or project, or abandoned.
In the event the parties tentatively agree upon a present or future
implementation of a change, such agreement shall take effect only as set forth
in a written amendment to the applicable Statement of Work executed by both
parties. Contractor shall continue work pursuant to the existing Statement of
Work, and shall not be bound by any change requested by Intuit, until such
change has been agreed upon in writing by the parties as specified herein.


(g)       No Exclusivity. The parties acknowledge and agree that this Agreement does
not create an exclusive relationship between the parties. Contractor may
provide similar Services to its other clients and Intuit may obtain similar
Services from service providers other than Contractor. The parties further
acknowledge and agree that Intuit is not obligated to procure any specific
amount of Services under this Agreement and shall be obligated to procure only
those quantities for which Intuit has submitted a specific order pursuant to a
Statement of Work.


3.          Testing and Acceptance. To the extent a particular Statement of Work
specifically identifies Services or deliverables for which Intuit’s acceptance
is required, Intuit may, in accordance with any additional terms set forth in
an applicable Statement of Work, conduct acceptance tests to verify whether the
Services and/or the deliverables substantially conform to the applicable
specifications set forth in the applicable Statement of Work or any written
documentation provided by Contractor for the Services and/or deliverables.
Intuit shall have fifteen (15) days after completion of the applicable
Services, or such other period as may be mutually agreed upon as set forth in
the applicable Statement of Work (the “Acceptance Period”), to perform such
tests. If Intuit notifies Contractor of any material non-conformities with
such specifications in any of the Services and/or the deliverables (each, a
“Nonconformity” and collectively, the “Non-conformities”) in writing within the
applicable Acceptance Period, Contractor promptly shall either demonstrate to
Intuit that no such Non-Conformities exist or use commercially reasonable
efforts to correct such Non-conformities at its own expense and notify Intuit
in writing when such corrections are complete. Intuit then shall have the
right to test the corrected Services and/or deliverables, as upon the initial
completion of the applicable Services as set forth above. If Intuit accepts
the Services and/or deliverables, as determined by Intuit as set forth above,
Intuit shall sign the acceptance certificate, attached hereto as Exhibit D. If
Intuit does not sign the acceptance certificate or notify Contractor of any
material Non-conformities within the applicable Acceptance Period, Intuit shall
be deemed to have “Rejected” the Services and/or the deliverables and the
parties will address any such Rejection as set forth in the applicable
Statement of Work. Should Contractor fail to correct a Nonconformity within
sixty (60) days after receiving written notice thereof from Intuit, or such
longer period as may be mutually agreed upon in the applicable Statement of
Work, Intuit may terminate the applicable Statement of Work, without prejudice
to its rights and remedies hereunder and without any further obligation to
Contractor other than the payment to Contractor of any and all fees incurred by
Contractor through the effective date of such termination pursuant to the
applicable Statement of Work.


4.          Compensation and Payment.


(a)       Subject to the next sentence, Intuit will pay Contractor for the
performance of the Services in the amounts and otherwise in accordance herewith
and with the schedule specified in the applicable Statement of Work. As may be
set forth in a Statement of Work, certain payments may be subject to Intuit’s
acceptance in accordance with Section 3. No compensation shall be paid for
services rendered by Contractor unless the Services are set forth in a
Statement of Work or otherwise authorized in accordance with the change order
procedures in Section 2(f) and/or in a Statement of Work.


(b)       Contractor will submit monthly reports as reasonably requested by Intuit
and monthly invoices to Intuit, accompanied by reasonably detailed descriptions
of the Services performed during the preceding month, the fees related thereto,
prior approved disbursements and out-of-pocket expenses then due. If permitted
in a Statement of Work, Contractor shall invoice Intuit for travel expenses in
accordance with Intuit’s then-current reimbursable expenses guidelines. Unless
reimbursement for travel expenses is expressly stated in a Statement of Work,
however, Contractor shall bear all travel expenses of its employees and/or
agents. The current version of such expense guidelines is attached hereto as
Exhibit G. Intuit will provide reasonable advance written notice to Contractor
of any material amendment to Exhibit G. Contractor will mail these invoices to
Intuit Inc., Attn: AP-01, 6220 Greenwich Drive, San Diego, California
92122-5988, or such other address as Intuit shall designate in writing from
time to time. All invoices must reference the number and date of the relevant
Statement of Work and must be received by Intuit within six (6) months after
the completion of any Statement of Work. Unless otherwise set forth in a
Statement of Work or otherwise agreed by the parties, any invoices not received
within such six (6) month time period shall be deemed forgiven by Contractor.


(c)       All undisputed payments will be made by Intuit within twenty (20) days
after the receipt by Intuit of any invoice, and mailed to Contractor at its
address specified in the invoice. If Intuit pays any invoice within ten (10)
days of receipt by Intuit of such invoice, such invoice shall be discounted by
Contractor by


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one percent (1%) of the total amount of the invoice. Any applicable discounts
shall be calculated from the later of the receipt of the invoice by Intuit or
the date any deliverable is received by Intuit at the designated Intuit
location with respect to any Statement of Work executed under this Agreement.
In the event that Intuit in good faith disputes any invoice rendered or amount
paid, Intuit will notify Contractor in writing and the parties shall work
together to resolve such dispute expeditiously, all in accordance with Section
14(c) of this Agreement and the time for payment of the disputed invoice shall
be extended until resolution of the dispute.


(d)       Contractor shall detail in each invoice provided under this Agreement taxes
for goods and services, and shall separately state the different types of taxes
by the type of tax Intuit shall pay on products and services, if any, sold or
provided by Contractor to Intuit (sales, use, etc.). Intuit shall bear all
taxes, duties, levies, and other similar charges (and any related interest and
penalties), however designated, imposed as a result of the existence or
operation of this Agreement, including but not limited to any tax which Intuit
is required to withhold or deduct from payments to Contractor. Intuit will
reimburse and indemnify Contractor for any such taxes and contributions and
interest and penalties that Contractor may be compelled to pay on account of
Intuit’s non-payment.


(e)       Except for any lien, claim or encumbrance arising as a result of Intuit’s
failure to pay hereunder (“Intuit Lien”), Contractor shall keep Intuit’s
property free and clear of all liens, claims, and encumbrances arising from the
performance of the Services provided under this Agreement by Contractor. If
any lien other than an Intuit Lien is filed, Contractor shall use commercially
reasonable efforts to promptly procure the release of such lien. Contractor
shall have the right to contest the validity or amount of any such lien;
however, pending the discharge of any such lien of record, Intuit may retain
out of any monies that are due and payable to Contractor in an amount
sufficient to discharge such lien. Except in connection with any Intuit Lien,
Contractor agrees to reimburse Intuit for all monies paid and expenses incurred
by Intuit in discharging such liens or otherwise incurred in connection with
any action or proceeding for the removal or enforcement of the lien. Intuit
agrees to reimburse Contractor for all monies paid and expenses incurred by
Contractor in discharging, removing or enforcing any Intuit Lien. Contractor
shall include a provision satisfying the requirements of this Section 4(e) as
part of any and all subcontracts entered into for the work or any portion of
the Services.


(f)       Each party will maintain complete and accurate records relating to any fees
and payments charged or made in connection with the Services provided under
this Agreement or any transactions upon which such fees are based or
calculated. Either party may, upon not less than thirty (30) days prior
written notice to the other party, cause an independent Certified Public
Accountant to inspect such other party’s relevant records upon which such fees
or payments are based during normal business hours and without material
interruption of business operations. The determination by such independent
Certified Public Accountant shall be binding upon the parties. The fees
charged by such Certified Public Accountant in connection with the inspection
will be paid by the auditing party, unless the payments made by Intuit are
determined to have been more than five percent (5%) in excess of the payments
actually owed to Contractor, in which case Contractor will be responsible for
the payment of the fees for such audit, or unless the payments made by Intuit
are determined to have been less than five percent (5%) of the payments
actually owed to Contractor, in which case Intuit will be responsible for the
payment of the fees for such audit. In addition, Contractor shall promptly
remit payment to Intuit for the full amount of any disclosed overcharges and
Intuit shall promptly remit payment to Contractor for the full amount of any
disclosed shortfalls. The audit rights set forth herein shall not be
exercisable more than twice annually (unless an audit results in a finding of
payment in excess of five percent (5%) of the amount


+


due, in which case they shall be exercisable three (3) times a year) and shall
continue for one (1) year following the termination of this Agreement for
any reason.


5.          If Intuit notifies Contractor in writing, in good faith and in sufficient
detail, of its belief of a material problem with any personnel of Contractor,
Contractor will address such problem in good faith in a timely manner
consistent with industry standards.


6.          Term/ Termination.


(a)       Unless otherwise terminated in accordance with this Agreement, the term of
this Agreement shall begin on the Effective Date and will continue for a period
of three (3) years after the Effective Date (the “Term”). Upon mutual written
agreement of the parties, this Agreement will be renewed for additional agreed
upon periods of time.


(b)       Either party may terminate this Agreement or an applicable Statement of
Work (i) due to a material breach of this Agreement or such applicable
Statement of Work by the other party if such material breach remains uncured
for a period of twenty (20) days or as may otherwise be set forth in a
Statement of Work, following receipt by the breaching party of written notice
by the non-breaching party; or (ii) by giving (30) days’ written notice to the
other party in the event of: (A) any sale or transfer of all or substantially
all of such other party’s assets; or (B) any acquisition of a controlling
interest in such other party’s voting stock.


(c)       Either party may terminate a Statement of Work any time after twelve (12)
months from the effective date of such Statement of Work, without cause, upon
ninety (90) days’ written notice to the other party.


(d)       In the event of an early termination of this Agreement, Intuit shall
compensate Contractor in accordance with Section 4 for the Services and
deliverables provided on or before the effective date of the termination and
shall compensate Contractor for all disbursements and out-of-pocket expenses
reasonably incurred by Contractor in connection with this Agreement and
pre-approved by Intuit in writing. Upon termination or expiration of this
Agreement or any Statement of Work, or at any prior time upon the request of
either party, the other party will promptly deliver to such party, all
Confidential Information or other memoranda, notes, records, drawings, manuals,
disks, documents, media, equipment, papers or other information, obtained by
the other party from such party or otherwise pertaining to such party’s
business, including all copies thereof, provided however, that Intuit agrees
that if such delivery by Contractor reasonably would interfere with
Contractor’s ability to perform hereunder or under any Statement of Work, such
situation shall be deemed, and treated as, a Dependency hereunder and under an
applicable Statement of Work. Each party acknowledges that all such materials
are the property of the other party and each party agrees not to retain any
copies of such materials after the termination or expiration of this Agreement
or of any Statement of Work.


(e)       Upon termination or expiration of this Agreement or any Statement of Work
hereunder, Contractor shall (i) remove all of its equipment and materials, and
any and all debris and waste material created by Contractor on any Intuit
premises during the Contractor’s performance of the Services under this
Agreement, (ii) leave such Intuit premises in a condition reasonably
satisfactory to Intuit, and (iii) provide Intuit with reasonable transition
assistance at the rates and to the extent the parties may agree upon through
good faith negotiations.


(f)       The provisions of Sections 4, 6(d), 6(e), 6(f), 8 through 11, 13 and 14 as
well as corresponding provisions of


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any of the Exhibits, will survive any termination or expiration of this
Agreement.


7.          No Marketing Obligation. Intuit reserves the right to acquire, license,
develop, manufacture, market and/or distribute products and/or services that
are similar to or may compete with Contractor’s Services rendered or
deliverables delivered hereunder.


8.          Ownership and Licenses.


(a)       The parties acknowledge and agree that each party may own or have rights to
data, technology, methods and methodologies, processes, know-how, ideas,
techniques, models, templates, development tools, software code, algorithms,
documentation, tools, software and other materials (in the case of Contractor
collectively, the “Contractor Materials” and in the case of Intuit
collectively, the “Intuit Materials”). Each party acknowledges and agrees that
except as expressly set forth in this Section 8 or in a Statement of Work (i)
no rights to the Contractor Materials are granted to Intuit and no rights to
the Intuit Materials are granted to Contractor and (ii) Contractor shall own
all intellectual property rights in and to the Contractor Materials and Intuit
shall own all intellectual property rights in and to the Intuit Materials.
Without limiting the foregoing, the parties expressly understand and agree that
Contractor shall not receive any rights to any Intuit customer data Intuit may
provide Contractor, other than the right to use such data solely to the extent
necessary for Contractor to provide the Services. Contractor further
acknowledges and agrees that it shall have no right to retain any Intuit
customer data after the termination of this Agreement nor to use such data,
including using such data in the aggregate, for any purpose other than to
provide the Services.


(b)       To the extent Contractor provides any Contractor Materials or deliverables
to Intuit hereunder or under any Statement of Work, Contractor hereby grants to
Intuit a non-transferable, non-exclusive, revocable (except to the extent any
tangible Contractor Materials are incorporated into and necessary for use of a
finished Intuit product already or to be provided directly or indirectly by
Contractor to Intuit’s customers hereunder, in which case, and solely to such
extent, irrevocable), limited license to use such Contractor Materials and
deliverables solely as necessary to receive the Services. To the extent Intuit
provides any Intuit Materials to Contractor hereunder or under any Statement of
Work, Intuit hereby grants to Contractor a non-transferable, non-exclusive,
revocable, limited license to use such Intuit Materials solely as necessary to
provide the Services. Neither Intuit, nor any third party, shall remove,
obscure or alter Contractor’s copyright notices, trademarks or other
proprietary rights or notices affixed to or contained in the Contractor
Materials and neither Contractor, nor any third party, shall remove, obscure or
alter Intuit’s copyright notices, trademarks or other proprietary rights or
notices affixed to or contained in the Intuit Materials.


9.          Confidential Information.


(a)       For the purposes of this Agreement, “Confidential Information” means the
Contractor Materials, the Intuit Materials, the terms and conditions of this
Agreement (including all Statements of Work and any other related documents),
customer data and all non-public information about the disclosing party’s (or
its suppliers’) business or activities that is proprietary and confidential,
which shall include all business, customer, financial, technical and other
information of either party, whether or not it is marked or designated by such
party as “confidential or “proprietary” at the time of disclosure.
Confidential Information will not include information that: (i) 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.


(b)       Each party agrees that: (i) it will not disclose to any third party any
Confidential Information disclosed to it by the other party except as expressly
permitted in this Agreement; (ii) it will not use any Confidential Information
disclosed to it by the other party except as necessary to perform its
obligations under this Agreement; and (iii) 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. Notwithstanding the foregoing, each party may disclose
Confidential Information to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by law,
provided that such party uses reasonable efforts to request confidential
treatment or a protective order before such disclosure; or on a “need-to-know”
basis under an obligation of confidentiality to its legal counsel and
accountants.


(c)       Each party acknowledges and agrees that its breach or threatened breach of
the provisions under this Section 9 or under Section 8 will result in
irreparable harm to the other party and that either party will have the right
to enforce Section 8 and Section 9(a) through (d) of this Agreement by
injunction, specific performance and/or other equitable relief without
prejudice to any other rights and remedies that such party may have.


(d)       Nothing in this Agreement shall relieve any party of any of its obligations
under any separate non-disclosure agreement between the parties, including any
obligation with respect to procedures for handling customer data or other
similarly sensitive information.


(e)       Notwithstanding anything to the contrary contained in this Agreement,
Contractor agrees to comply with the Intuit Privacy Policy attached as Exhibit
E and the Intuit Security Requirements attached as Exhibit F).


10.          Representations and Warranties.


(a)       Each party to this Agreement represents and warrants that: (i) it is a
corporation duly incorporated, validly existing and in good standing; (ii) it
has all requisite right, corporate power and authority to execute, deliver and
perform its obligations hereunder; (iii) it is duly licensed, authorized or
qualified to do business and is in good standing in every jurisdiction in which
a license, authorization or qualification is required for the ownership or
leasing of its assets or the transaction of business of the character
transacted by it except when the failure to be so licensed, authorized or
qualified would not have a material, adverse effect on its ability to fulfill
its obligations hereunder; (iv) it shall comply with all laws and regulations
applicable to the performance of its obligations hereunder and shall obtain all
applicable permits and licenses required of it in connection with its
obligations hereunder; and (v) it is not a party to any agreement with or
committed in any other manner to, a third party, the performance of which is
reasonably likely to affect adversely its ability or the ability of the other
party to perform fully its respective obligations hereunder.


(b)       Contractor represents and warrants that any and all Services rendered under
this Agreement shall be performed by Contractor, including its employees or its
subcontractors, in a workmanlike fashion and in accordance with the standards
of competence within Contractor’s industry. Each party shall be liable for the
performance of its employees who will perform services hereunder and agrees
that those employees shall be bound by the terms of this Agreement. In the
event Contractor


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desires to use any subcontractor to provide Services to Intuit, Contractor
shall obtain Intuit’s prior written approval as to the identity of such
subcontractor and as to the estimated scope and duration of the Services to be
provided by such subcontractor, provided, however, that Intuit uses reasonable,
good faith and expedited efforts in issuing such approval, that Intuit conducts
meaningful consultation with Contractor prior to any decision of non-approval
and provides to Contractor its good faith basis for any such non-approval, and,
provided further, however, that notwithstanding the foregoing in this sentence,
Intuit hereby approves Contractor’s use of BeMusic, Inc. as a subcontractor
hereunder. Each party shall also be liable for any subcontractor it hires to
perform hereunder or in connection herewith, and covenants that such
subcontractors shall, prior to performance, agree in writing to be bound by the
terms of this Agreement. Any delegation of either party’s duties to any
subcontractor shall not relieve such party of its obligations under this
Agreement.


(c)       EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT
MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.


11.          Indemnification.


(a)       Contractor agrees to defend, indemnify and hold Intuit and its affiliates,
and all of their respective officers, directors, agents and employees, harmless
from and against any and all claims, including liabilities, losses, damages,
actions, judgments, costs, and expenses and reasonable attorneys’ fees
(collectively “Claims”), asserted by a third party arising out of or related
to, and incurred by such indemnitee in connection with: (i) any infringement or
misappropriation of any patent, invention, trade secret, copyright, trademark,
proprietary information nondisclosure or other proprietary rights alleged to
have occurred because of Services, systems, software or other resources
provided to Intuit by Contractor hereunder (“Contractor Provided Systems”) or
based upon their use by Intuit as permitted hereunder, other than claims based
upon or arising out of any combination, operation or use of Contractor Provided
Systems with systems, software or other resources not provided by Contractor if
combined, operated or used in a manner other than that to which the parties
have agreed; (ii) the damage to or loss or destruction of any real or tangible
personal property in the possession or under the control of Contractor, except
to the extent proximately caused by Intuit or its agents or employees; (iii)
Contractor’s negligent acts, omissions and/or willful misconduct in supplying
the Services under this Agreement; or (iv) the death or bodily injury of any
agent, employee, subcontractor, customer, business invitee or business visitor
of Contractor, except to the extent proximately caused by Intuit or its agents
or employees. Notwithstanding the foregoing, Contractor shall have no duty to
indemnify Intuit for Claims to the extent arising from the Intuit Materials or
any Intuit resources, or any Intuit products, whether provided, distributed or
otherwise used or handled by Intuit or by Contractor on behalf of Intuit.


(b)       Intuit agrees to defend, indemnify and hold Contractor and its affiliates,
and all of their respective officers, directors, agents and employees, harmless
from and against any and all Claims asserted by a third party arising out of or
related to, and incurred by such indemnitee in connection with: (i) any
infringement or misappropriation of any patent, invention, trade secret,
copyright, trademark, proprietary information nondisclosure or other
proprietary rights resulting from the use of any Intuit Materials or Intuit
resources by Contractor in the performance of the Services or provision of any
deliverables, other than claims based upon or arising out of any combination,
operation or use of any Intuit Materials or Intuit resources with systems,
software or other resources not provided by Intuit if combined, operated or
used in a manner other than that to which the parties have agreed; (ii) the
damage to or loss or destruction of any real or tangible personal property in
the possession or under the control of Intuit, except to the extent proximately
caused by Contractor or its agents or employees; (iii) the death or bodily
injury of any agent, employee, subcontractor, customer, business invitee or
business visitor of Intuit, except to the extent proximately caused by
Contractor or its agents or employees; or (iv) the negligent acts, omissions
and/or willful misconduct of Intuit in using the Services provided by
Contractor, or in supplying the Intuit Materials or any Intuit resources, under
this Agreement. Notwithstanding the foregoing, Intuit shall have no duty to
indemnify Contractor for Claims to the extent arising from the Contractor
Materials or Contractor Provided Systems, whether provided, distributed or
otherwise used or handled by Intuit or by Contractor on behalf of Intuit.


(c)       The party seeking indemnification under Section 11(a) or 11(b), as the case
may be (the “Indemnified Party”), will give prompt written notice to the other
party (the “Indemnifying Party”). (The failure by an Indemnified Party to give
notice as provided, above, shall not relieve the Indemnifying Party of its
obligations under this Section 11(c), except to the extent that the failure
results in the failure of actual notice and the Indemnifying Party is damaged
as a result of the failure to give notice.) In addition, the Indemnified Party
will allow the Indemnifying Party to direct the defense and settlement of any
such claim, with counsel of the Indemnifying Party’s choosing, and will provide
the Indemnifying Party, at the Indemnifying Party’s expense, with information
and assistance that is reasonably necessary for the defense and settlement of
the claim. The Indemnified Party shall have the right to employ separate
counsel and to participate in (but not control) any such action, but the fees
and expenses of such counsel shall be at the expense of the Indemnified Party
unless: (i) the employment of counsel by the Indemnified Party has been
authorized by the Indemnifying Party; (ii) the Indemnified Party has been
advised by its counsel in writing that there is a conflict of interest between
the Indemnifying Party and the Indemnified Party in the conduct of the defense
of the action (in which case the Indemnifying Party shall not have the right to
direct the defense of the action on behalf of the Indemnified Party); or (iii)
the Indemnifying Party has not in fact employed counsel to assume the defense
of the action within a reasonable time following receipt of the notice given
pursuant to this Section 11(c), in each of which cases the fees and expenses of
such counsel shall be at the expense of the Indemnifying Party. An
Indemnifying Party shall not be liable for any settlement of an action effected
without its written consent (which consent shall not be unreasonably withheld)
or delayed, nor shall an Indemnifying Party settle any such action that affects
the Indemnified Party’s rights or interests without the written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or
delayed). No Indemnifying Party will consent to the entry of any judgment or
enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the Indemnified Party a
release from all liability with respect to the claim.


12.          Insurance. Contractor will, at Contractor’s expense, maintain its current
insurance policies that cover Contractor’s activities under this Agreement and
the activities of Contractor’s employees, agents and representatives.
Contractor will name Intuit as an additional insured on such policy.
Contractor shall provide Intuit with a certificate of insurance evidencing such
coverage. In addition, Contractor will provide Intuit with written notice of
any cancellation or reduction in coverage or limits.


13.          Limitation of Liability. EXCEPT FOR ANY FEES DUE AND OWING TO CONTRACTOR,
A BREACH OF CONFIDENTIALITY OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 11, ABOVE, IN NO EVENT WILL (i) EITHER PARTY BE
LIABLE TO


5






 


THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, 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,
OR (ii) THE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR DAMAGES OR ALLEGED
DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED
THE GREATER OF (i) FIVE MILLION DOLLARS ($5,000,000) OR (ii) THE AMOUNTS PAID
(OR IN THE CASE OF INTUIT, PAID AND DUE AND PAYABLE) BY INTUIT TO CONTRACTOR
HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.


14.          General.


(a)       Publicity and Advertising. Notwithstanding any other provision of this
Agreement, neither party may issue press releases or endorsements or other
public announcements or statements which reference the other party or include
statements attributable to the other party without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed,
and in the case of Intuit, such consent must include the written approval of
Intuit’s Corporate Communications and Procurement Departments, and in the case
of each party such consent must include the written approval of its legal
counsel. No press release or endorsement which references the other party or
includes a statement by the other party shall be made except as provided above.


(b)       Assignment. Neither party may assign this Agreement, in whole or in part,
without the other party’s prior written consent, which consent shall not be
unreasonably withheld or delayed. Any attempt by either party to assign this
Agreement other than as permitted herein 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.


(c)       Dispute Resolution. Each party agrees to submit in writing to the other
party any dispute arising out of or relating to this Agreement or any Statement
of Work hereunder to upper-level executive representatives designated by each
party, and who will meet by conference or otherwise in an effort to resolve
such dispute, within five (5) days. If after the second day, such dispute
cannot be resolved, than each party’s respective Vice-President, or substantial
equivalent, shall attempt to resolve the dispute. In the event that the Vice
Presidents are unable to resolve any such dispute within twenty (20) days, the
parties shall mutually determine a date and location for a meeting between the
senior management of each Party. Notwithstanding the foregoing, the parties
agree, unless otherwise agreed in writing, (i) to try to resolve any such
dispute within thirty (30) days after the commencement of any such dispute and
(ii) to continue performance of their additional obligations hereunder that are
not the subject of dispute during such period, provided however, that in the
case of Contractor, Intuit has paid or promptly pays for any and all fees due
for or in connection with such continued performance of such undisputed
obligations. Either party may bring an action in any court of competent
jurisdiction if, at the expiration of such thirty (30) day period, the parties
remain unable to resolve such dispute.


(d)       Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflicts of laws principles. If Intuit commences any claim hereunder, the
parties hereby consent to the exclusive jurisdiction and venue in the state and
federal courts in New York County, New York, and if Contractor commences any
claim hereunder, the parties hereby consent to the exclusive jurisdiction and
venue in the state and federal courts in Santa Clara County, California.


(e)       Notice. Unless otherwise stated, all notices required under this Agreement
shall be in writing and shall be considered given (i) when delivered
personally; (ii) five (5) days after mailing, when sent certified mail, return
receipt requested and postage prepaid; (iii) one (1) business day after
dispatch, when sent via a commercial overnight carrier, fees prepaid; or (iv)
upon delivery when sent by facsimile transmission confirmed by telephone and
followed by notice sent in accordance with clause (i), (ii) or (iii) above.
All communications will be addressed as follows (unless changed by notice):


To Contractor:




	 	 	 
	Attn:	 	
President
	Address:	 	
Arvato Services, Inc.
	 	 	
28210 N. Avenue Stanford
	 	 	
Valencia, CA 91355
	Phone:	 	
(661) 257-0584
	Fax:	 	
(661) 257-1986



with a copy to:




	 	 	 
	Attn:	 	
Legal Affairs Department
	Address:	 	
Bertelsmann, Inc.
	 	 	
1540 Broadway
	 	 	
New York, NY 10036-4094
	Phone:	 	
(212) 782-1000
	Fax:	 	
(212) 782-1042




	 	 	 
	To Intuit:	 	 
	 
	Attn:	 	
Tom Harrington, Vendor Manager
	Address:	 	
Intuit Inc.
	 	 	
2650 Casey Avenue
	 	 	
Mountain View, CA 94043
	Phone:	 	
(650) 944-5624
	Fax:	 	
(650) 944-3511



with a copy to:



Intuit Inc.

2700 Coast Avenue

Mountain View, California 94043

Attn: General Counsel, Legal Dept.

Phone: (650) 944-6000

Fax:(650) 944-6622


(f)       Force Majeure. Except with respect to delays or failures to the extent
caused by the negligent act or omission of either party, any delay in or
failure of performance by either party 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, terrorism, labor strikes (in which case,
Contractor shall use commercially reasonable efforts to assist Intuit in
finding a workaround), power outages, failures of the Internet, provided that
the party affected by such event shall begin or resume performance as soon as
practicable after the event has abated. In the event that the non-performing
party is not able to resume performance within three (3) months after the force
majeure event has commenced, the other party shall have the right to terminate
this Agreement and/or the applicable Statement(s) of Work immediately upon
written notice to the other party, provided however, that at such time the
non-performing party’s performance is precluded by such force majeure event.


(g)       Severability. If any provision of this Agreement is found illegal or
unenforceable, such provision will be deemed restated, in accordance with
applicable law, to reflect as nearly as possible the original intention of the
parties, and the remainder of the Agreement will continue in full force and
effect.


6






 


(h)       Entire Agreement. This Agreement, together with the Exhibits attached
hereto, and all Statements of Work, is the complete and exclusive agreement
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.


(i)       No Third Party Beneficiaries. This Agreement is intended for the sole and
exclusive benefit of the signatories and is not intended to benefit any third
party. Only the parties to this Agreement may enforce it.


(j)       Counterparts. This Agreement may be executed in counterparts, each of
shall constitute an original, and all of which shall constitute one agreement.


(k)       Headings. The headings in this Agreement are for convenience of reference
only and have no legal effect.


(l)       Party’s Rights Cumulative. Unless otherwise specified herein or in a
Statement of Work, the rights and remedies of each party under this Agreement
are cumulative and not exclusive of any rights or remedies to which a party is
entitled by law or at equity. The exercise by either party of any right or
remedy under this Agreement or under applicable law will not preclude such
party from exercising any other right or remedy under this Agreement or to
which it is entitled by law or equity.


          IN WITNESS WHEREOF, the authorized representatives of the parties have
executed this Agreement as of the date of the later signature below.




	 	 	 	 	 	 	 
	CONTRACTOR	 	INTUIT INC.
	 	 	 	 	 	 	 
	By:	 	
/s/ Schmitz
	 	By:
	 	/s/ K. R. Mudge
	 	


	 	 	

	 	 	 	 	 	 	 
	Name:	 	
Schmitz
	 	Name:
	 	K. R. Mudge
	 	 	 	 	 	 	 
	Title:	 	
President
	 	Title:
	 	VP Supply Chain
	 	 	 	 	 	 	 
	Date:	 	
5/28/03
	 	Date:
	 	5/28/03



7






 



Exhibit A


Independent Contractor Details:



Name of Contractor (Company): BeMusic, Inc.



	 	 	 
	Contractor’s Mailing Address:	 	
110 Hidden Lake Circle
	 
	 	 	
Duncan, S.C. 29334



Contractor’s Telephone Number: (864) 433-5101



Contractor’s Facsimile Number: (864) 433-5170



	 	 	 
	
Form and Ownership of Contractor’s Business: (check all that apply)
	    Form of Entity Questions:	 	
Minority/Small/Women Ownership Questions:
	    x Corporation (state of incorporation: Pennsylvania)	 	
o Minority Owned: Specify:
	    o Partnership	 	
o Women-Owned
	    o Individual/Sole Proprietor	 	
o Small Business
	    o U.S. Government Agency	 	 
	    o Other  — please specify:	 	 



Tax ID Information:



Please provide Federal Tax ID Number: 23-2813867


Or, if applicable, Social Security Number (SSN):



8










 



Exhibit B


STATEMENT OF WORK NO. ____



This Statement of Work No.      is entered into between Intuit Inc., and its
Enterprise Members (“Intuit”) and                
(“Contractor”) as further identified below as of the date of the later signature below. Except as
otherwise provided below, this Statement of Work shall be governed by the terms
and conditions of the Master Technology Services Agreement entered into by the
parties on           , 200     (the “Agreement”). Capitalized terms not defined
herein shall have the same meanings set forth in the Agreement.



	1.	 	Contact Information:




	 	 	 	 	 	 	 	 	 
	 	 	“Intuit”	 	“Contractor”
	 	 	
	 	

	Contact Name:
	Address:
	Telephone No.:




	2.	 	Term: The Services to be rendered under this Statement of Work shall
commence on                and shall be completed no later than
               .
	 
	3.	 	Location of performance of the Services:
	 
	4.	 	Project Scope and Detailed Description of the “Services”:
	 
	5.	 	Timetable for Transition Phase and Services:
	 
	6.	 	Payment Terms: The following payment terms apply to this Statement of
Work (check those that are applicable and list the rates and charges):




	 	 	 	 	 	 	 	 	 
	 	 	a.	 	Hourly
bill rate (Time and
Materials):  

	 	 	Hourly
Bill Rate: 

	 	 	 	 	 	 	 	 	 
	 	 	
b
	 	Fixed
Price: 
	 	 	Total Project Cost:


	 	 	 	 	 	 	 	 	 
	 	 	c.	 	Completion
of Services by Milestones: 
	 	 	List all milestones and the cost for each milestone.
	 	 	 	 	 	 	 	 	 
	 	 	
d
	 	Other:

	 	 	Describe.



	Total amount payable for Services
under this Statement of Work: $	 	





	7.	 	Project Managers and Responsibilities:
	 
	8.	 	Intuit Responsibilities/Intuit resources:
	 
	9.	 	Assumptions:
	 
	10.	 	Additional Terms and Conditions.




	 	a.	 	Service level agreements:
	 
	 	b.	 	Reporting requirements:
	 
	 	c.	 	Scope of Services For Enterprise Members:




	 	 	 
	Intuit Inc.:	 	
Contractor:
	 	 	 
	Name:	 	
Name:
	
	 	

	Title:	 	
Title:
	
	 	

	Date:	 	Date:
	
	 	





9










 



Exhibit C


RULES OF CONDUCT FOR ONSITE SERVICE PROVIDERS



These rules shall apply to all Independent Contractors, Consultants, Service
Companies, and other Vendors that provide services on Intuit’s sites. All
parties including their respective employees and/or agents shall hereafter be
referred to as “Contractor” regardless of actual title. It is Contractor’s
responsibility to thoroughly orient and instruct its employees and agents as to
the contents of this policy. These regulations are intended to cover standard
situations under the applicable Agreement or purchase order. As the scope of
work becomes more clearly defined and as non-standard conditions arise,
Contractor shall contact Intuit for clarifications and/or exceptions.



	1.	 	Responsibilities: Contractor shall:



          a.     Conform to all local, state, and federal safety requirements,
particularly those requirements in OSHA and the Code of Federal Regulations
applicable to the services performed by Contractor.



          b.     Establish its own appropriate safety, health, and work procedures for
the services being performed.



          c.     Properly instruct all employees and agents in the execution of their
job duties.
Enforce its own safety rules, with Intuit’s rules governing, in the event of a
conflict with such rules.
Provide positive proof of liability and workers’ compensation insurance to the
appropriate group at Intuit as indicated in the terms and conditions of the
Agreement.




	2.	 	Procedure: Access



          a.     Contractor shall provide Intuit with the names of its employees and
agents who will be working at Intuit’s site. All employees or agents shall
sign in at the reception desk.



          b.     While working, Contractor must stay in the area where the job at hand
is being performed. In no case shall Contractor tamper with or handle any
equipment, which does not pertain to the particular job.



          c.     All drivers of Contractor-related vehicles must observe the posted
traffic regulations while on the property where Intuit’s site is located.



          d.     Neither the Landlord of the property where Intuit’s site is located nor
Intuit is responsible for damage to Contractor’s vehicles, regardless of cause.
Intuit will, however, make all reasonable attempts to prevent damage to such
vehicles from occurring.



          e.     The following primary background checks will be required for all of
Contractor’s employees needing a badge or electronic access to Intuit:




	 
	i.     Criminal Conviction History
	 
	Misdemeanor and felony convictions based on 7 years of residence history.
Maiden, alias, and other names will be checked. International criminal
history (unless unlawful, or unavailable).
	 
	ii.     Social Security Number Address History
	 
	
Address information used to determine criminal conviction history checks.
International equivalent (unless unlawful, unavailable or not
applicable).




	3.	 	Safety Rules



          a.     Contractor must properly dispose of its debris, trash and waste such as
lunch scraps and drinking cups.



          b.     Contractor is responsible for ensuring that when not in use, its tools,
materials, and equipment are stored neatly, securely, and safely. Intuit is
not responsible for the theft or damage to such equipment, although it will do
everything possible to prevent such loss from occurring.



          c.     Contractor agrees that it will not store its material, tools, and
equipment so as to obstruct aisles, stairs, halls, roads, entrances, or exits.
At no time shall Contractor’s tools, materials, or equipment obstruct the
passageways to fire extinguishers or any safety equipment.



          d.     Contractor shall provide its employees and agents with approved safety
equipment or eye protection, if required in the execution of the work.




	4.	 	Other Rules



4.1     Weapons: Weapons may not be brought onto the property (including the
parking lot) either on a person or in a vehicle.


4.2     Personal Conduct: The same type of rules of personal conduct governing
Intuit’s employees shall also govern Contractor’s employees.


          a.     No person under the influence of intoxicants, narcotics or any other
mind-altering substance will be allowed on the property, nor shall any person
have in his or her possession any intoxicants, narcotics or mind-altering
substances.



          b.     Unprofessional conduct such as horseplay, wrestling, fighting,
gambling, fighting, threatening, etc., will not be permitted.



          c.     Intuit strictly prohibits sexual harassment or any other type of
harassment of any kind, including harassment on the basis of sex, race, color,
religion, gender, age, mental or physical disability, medical condition,
national origin, marital status, veteran status, sexual orientation, or other
characteristic protected under federal or state law or local ordinance.
Contractor shall not harass any other person by verbal, physical, visual means
or in any manner.



4.3     Cameras: Contractor may not bring cameras onto the jobsite for the purpose
of taking pictures unless authorized by the authorized representative of
Intuit.


4.4     Smoking: For reasons of safety, legal compliance, and other concerns,
smoking is prohibited inside Intuit buildings. Smoking is permitted outside of
buildings in designated smoking areas approved by site management.


10






 



Exhibit D


CERTIFICATE OF ACCEPTANCE



This Acceptance Certificate is to certify that on the      day of
     200     , the Services, and/or any and all deliverables required for
Statement of Work No.      have been accepted by Intuit as having met the
specifications set forth in such Statement of Work.



	 	 	 
	 
	Signed By	 	 
	 	 	


	 
	Printed Name	 	 
	 	 	


	 
	Title	 	 
	 	 	


	 
	Company Name	 	 
	 	 	





11






 



Exhibit E


Intuit Service Provider Privacy Exhibit



1.     INTRODUCTION



	 	 	 
	1.1.	 	
This Intuit Privacy Exhibit (“Exhibit”) governs the manner in which
specified customer-related information may be collected, used, or
disclosed by Service Provider to the extent related to Services
specified in an applicable Statement of Work. Intuit may impose
different or additional restrictions in connection with any Intuit
business conducted outside of the United States.



2.     DEFINITIONS



	 	 	 
	2.1.	 	
“Affiliate Companies” shall mean any companies controlling, being
controlled by, or under common control with another company.
	 	 	 
	2.2.	 	
“Intuit” shall mean Intuit Inc. and its Affiliate Companies.
	 	 	 
	2.3.	 	
“Intuit Customer Data” shall mean any data — whether Personally
Identifiable Information or aggregate or anonymous information — either
disclosed by Intuit to Service Provider, or to which Service Provider
has otherwise obtained access by virtue of its relationship with Intuit.
Such Data shall include information pertaining to both customers and
prospective customers of Intuit.
	 	 	 
	2.4.	 	
“Intuit Suppression” shall mean the process of matching or merging
marketing lists with all relevant Intuit Do Not Contact lists,
including, as applicable, “Do Not Mail,” “Do Not E-mail,” and “Do Not
Call” lists, for purposes of purging from such marketing lists or
otherwise suppressing Intuit Customer Data of those included on such Do
Not Contact lists.
	 	 	 
	2.5.	 	
“Opt-out” shall mean the opportunity afforded to Consumers to decline
to have their Intuit Customer Data used for purposes other than as
necessary to provide the product or service for which the Intuit
Customer Data is collected.
	 	 	 
	2.6.	 	
“Service Provider” shall mean the party entering into an agreement
with Intuit, into which this Exhibit has been incorporated by reference.
	 	 	 
	2.7.	 	
“Personally Identifiable Information” (“PII”) shall mean any
information (i) that identifies or can be used to identify, contact, or
locate the person to whom such information pertains, or (ii) from which
identification or contact information of an individual person can be
derived. PII includes, but is not limited to: name, address, phone
number, fax number, email address, financial profiles, medical profile,
social security number, and credit card information. Additionally, to
the extent unique information, not itself PII, such as, but not
necessarily limited to, a personal profile, unique identifier, biometric
information, and/or IP address is associated with PII, then such unique
information will also be considered PII.



3.     SERVICE PROVIDER RESPONSIBILITIES – GENERAL



	 	 	 
	3.1	 	
Service Provider shall comply with this Exhibit and all applicable
laws, rules and regulations relating to the collection or use of Intuit
Customer Data, and agrees to impose and enforce compliance of this
Exhibit on all third party service providers with access to Intuit
Customer Data.
	 	 	 
	3.2	 	
Service Provider shall ensure that only those employees or authorized
agents who are trained in the proper handling of Intuit Customer Data
and who are subject to an obligation to maintain the confidentiality of
such information shall have access to Intuit Customer Data.
	 	 	 
	3.3	 	
Service Provider shall under no circumstances collect, access, use,
reproduce or disclose Intuit Customer Data other than as either
specifically authorized by, or clearly necessary in order to perform
services pursuant to, the agreement this Exhibit is incorporated into.
Specifically, Service Provider shall not use Intuit Customer Data on its
own behalf. Should Service Provider become legally obligated to
disclose Intuit Customer Data other than as permitted by this Exhibit,
it shall, unless legally prohibited from doing so, first provide notice
to Intuit. Notwithstanding the foregoing, Service Provider may use
aggregate or anonymous information for its own internal business
processes (e.g., to track order flows and customer habits for future
service requirements) in Service Provider’s sole discretion.
	 	 	 
	3.4	 	
The constraints imposed by this Exhibit on the collection, use or
disclosure of Intuit Customer Data shall specifically apply to Social
Security numbers.
	 	 	 
	3.5	 	
Service Provider shall, as directed, perform an Intuit Suppression
prior to engaging in any marketing activities (e.g., e-mail,
telemarketing or direct mail marketing) on behalf of Intuit. In
addition, Service Provider shall comply with the rules of the Direct
Marketing Association’s Mail Preference Service and Telephone Preference
Service in connection with all such marketing activities. Such
obligations shall be in addition to performing any other legally
required suppressions, including legally-mandated Do Not Mail or Do Not
Call procedures. Service Provider shall employ measures as directed by
Intuit to ensure that Opt-out requests received in connection with such
marketing activities are provided to Intuit in a form permitting Intuit
to incorporate them into suppression files or other databases.
Suppression lists or files provided to Service Provider by Intuit shall
be used solely for purposes of performing an Intuit Suppression and
shall be returned or destroyed when no longer needed for such authorized
purposes.
	 	 	 
	3.6	 	
Service Providers conducting telemarketing on Intuit’s behalf shall
comply with Intuit’s Do-Not-Call Policy, as follows:



12






 




	 	 	 
	 	 	
This written policy for maintaining a Do-Not-Call list of individuals
who do not wish to receive telephone solicitations made by Intuit Inc.
or on behalf of Intuit Inc. (by its service providers) is available
upon request.



Do-Not-Call Policy




	 	 	 
	 	 	
Intuit maintains a Do-Not-Call list of individuals, including their
telephone numbers, who have requested not to receive telephone
solicitations from Intuit.
	 	 	 
	 	 	
Intuit’s Do-Not-Call list applies to Intuit and all its subsidiaries.
	 	 	 
	 	 	
Neither Intuit nor its service providers shall make telephone
solicitations to the homes of individuals on Intuit’s Do-Not-Call
list.
	 	 	 
	 	 	
If an individual states that he or she does not want to receive
telephone solicitation calls, the individual’s name and telephone
number must be added to Intuit’s Do-Not-Call list.
	 	 	 
	 	 	
Intuit must keep a record of an individual’s Do-Not-Call request for
ten (10) years from the time the customer makes the request.




	 	 	 
	3.7	 	
Service Provider shall maintain such records as are necessary to
demonstrate its compliance with this Exhibit and shall permit Intuit, or
a third party chosen by Intuit and reasonably acceptable to Service
Provider, to audit Service Provider’s records and practices relating to
its obligations under this Exhibit upon reasonable notice and during
regular business hours, and at Intuit’s expense, at the locations where
such records and data are maintained, for purposes of verifying Service
Provider’s compliance. Intuit shall be provided with a description of
all data flows and use of data upon request, and all such data flows and
use of data are subject to approval by Intuit in accordance with this
Exhibit and any applicable Statement of Work.
	 	 	 
	3.8	 	
Service Provider shall immediately report to Intuit any failure to
treat or protect — including specifically any unauthorized use or
disclosure of — Intuit Customer Data as set forth in this Exhibit or
the agreement it is incorporated into, including any related complaints
about Service Provider’s information and collection practices, and to
consult with Intuit as to correction thereof.
	 	 	 
	3.9	 	
Service Provider shall provide Intuit with a contact name and contact
information for communications related to this Exhibit, including
compliance with or any breaches thereof.
	 	 	 
	3.10	 	
Intuit may amend this Exhibit from time to time as may be required by
law, provided however, that any such amendment that results in any
modification of the Services as performed by Contractor shall be
addressed by the parties in accordance with the change control
procedures in Section 2(f) and as may be set forth in an applicable
Statement of Work, and Intuit shall reimburse Contractor for any costs
incurred by Contractor in connection with such amendment, and further
provided however, that if Contractor is not willing or able to change
practices in accordance with such amendments, Contractor shall be given
ninety (90) days to terminate any applicable Statement of Work.
	 
	Last Revised July 4, 2002.





13









 



Exhibit F


INTUIT SECURITY REQUIREMENTS



Definitions



For the purposes of this Exhibit, the following definitions shall apply.



	 	 	 	Confidential Information: Information (i) which is proprietary to a specific
person or company; (ii) the continued confidential treatment of which gives
the specified person or company some competitive business advantage or the
opportunity of obtaining such advantage, or the disclosure of which could be
detrimental to the interests of the specified person or company; (iii) is
designated as Confidential Information by the specified person or company, or
from all the relevant circumstances should reasonably be assumed by the
receiving party to be confidential and proprietary to the specified person or
company.
	 
	 	 	 	The following subcategories of Confidential Information are also defined:




	 	 	 	Secret Information: Information that is used to protect other Confidential
Information. Generally, Secret Information is not disclosed to outside
parties under any circumstances.
	 
	 	 	 	Sensitive Information: Any information that could be misused in such a way
as to jeopardize the financial or legal position of its owner, or of the
person or company described by the information.
	 
	 	 	 	Restricted Information: Information that is not Secret or Sensitive, but
whose permissible use has been restricted by its owner.




	 	 	 	Confidential Information includes, but is not limited to, the following types
of information and other information of a similar nature (whether or not
reduced to writing or designated as Confidential):




	 	a.	 	Personally-Identifiable Information. Information that
identifies or can be used to identify, contact, or locate the person
to whom such information pertains. It includes, without limitation,
the following information:
	 
	 	 	 	Secret Information: Customer passwords, private encryption keys, and
private signature keys.
	 
	 	 	 	Sensitive Information: Customer account numbers, Social Security
numbers, taxpayer identification numbers, account balances, account
activity, financial information, medical records, legal records, and
records of customer services and other data relating to the products
and services offered, received, or purchased by customers of Intuit or
the Contractor.
	 
	 	 	 	Restricted Information: Customer names, customer street or e-mail
addresses, customer telephone numbers.
	 
	 	b.	 	Confidential Corporate Information, consisting of any of the
following:
	 
	 	 	 	Secret Information: Computer account IDs, passwords for computer or
database systems, private encryption keys, SSL keys, computer source
code relating to encryption/decryption, special access privileges,
known security vulnerabilities, the results of security audits and
reviews, and any information explicitly designated Secret by Intuit or
by Contractor.
	 
	 	 	 	Sensitive Information: Any of the following:




	 	(i)	 	Work Products: Work product resulting from or related
to work or projects performed or to be performed for Intuit or
the Contractor, or for customers of Intuit or the Contractor
(including all media on which such information is contained);
	 
	 	(ii)	 	Business Operations: Internal Intuit or Contractor
personnel and financial information, names and other information
about Service Providers (including without limitation Service
Provider characteristics, services and agreements), purchasing
and internal cost information, internal services and operational
manuals, and the manner and methods of conducting Intuit’s or the
Contractor’s business;
	 
	 	(iii)	 	Marketing and Development Operations: Marketing and
development information regarding Intuit’s or the Contractor’s
operations (including without limitation marketing and
development plans, price and cost data, price and fee amounts,
pricing and billing policies, quoting procedures, marketing
techniques and methods of obtaining business, forecasts and
forecast assumptions and volumes, and future plans and potential
strategies of Intuit or the Contractor which have been or are
being discussed);
	 
	 	(iv)	 	Other Proprietary Data: Information relating to
Intuit’s or the Contractor’s proprietary business information
(including without limitation information pertaining to business
transactions and financial performance) or proprietary rights
prior to any public disclosure thereof, and information regarding
acquiring, protecting, enforcing and licensing proprietary rights
(including without limitation patents, copyrights and trade
secrets).
	 
	 	(v)	 	Designated Information: Notwithstanding the above, any
information explicitly designated as Sensitive by Intuit or by
Contractor.




	 	 	 	Restricted Information: Aggregated or anonymous customer information
(any customer information other than Personally Identifiable Customer
Information), contractual information or obligations not designated as
Sensitive, and any information explicitly designated as Restricted by
Intuit or by Contractor.




	A.	 	Controlling Access to Confidential Information




	 	 	 
	1.	 	
Access to Confidential Information stored on Contractor’s systems
must not be granted to members of Contractor’s staff, subcontractors, or
other agents, unless the following conditions are met:




	 
	a)     The staff member, subcontractor, or other agent requesting the access
can be uniquely identified (e.g., by a unique User ID), with the exception
of “root” password access provided by the Contractor to its core system
administration team;
	 
	b)     The staff member, subcontractor, or other agent requesting the access
has entered a correct password or other authorizing token to indicate that
he/she is the authorized user of this account. If passwords are the only
method used for authentication, they must satisfy certain minimal
standards mutually agreeable to Intuit and Contractor (e.g., 8 characters
minimum length, required use of special- and/or mixed-case characters, no
words that could be found in a dictionary, and required to be changed
every 90 days) that make them sufficiently robust to effectively resist
both educated guessing and brute-force attacks.
	 
	c)     In all cases, access permissions must be established in a manner that
allows only for the minimum access level(s) required for each staff
member, subcontractor, or other agent to perform his or her job function.
The ability to read, write, modify or



14






 




	 
	delete Confidential Information must be limited to those individuals who
are specifically authorized to perform those data maintenance
functions.
	 
	d)     The date, time, requestor, and nature of the access (i.e., read-only or
modify) has been recorded in a log file.




	 	 	 
	2.	 	
Confidential Information stored on Contractor’s systems must be
stored behind firewalls with access to such data limited as described in
the preceding requirement.
	 	 	 
	3.	 	
Secret Information must never be stored in clear text on Contractor’s
systems. At a minimum, financial services industry-standard encryption
techniques must be employed to safeguard Secret Information in
Contractor’s systems from retrieval by unauthorized persons. Contractor
should strive to adopt best industry practices where appropriate.
Whenever possible, message digest algorithms such as SHA-1 or MD5 should
be used to hash and verify the user’s password, and “salt” should be
added to the input string prior to encoding to ensure that the same
password text chosen by different users will yield different encodings.
	 	 	 
	4.	 	
Passwords used to control Contractor’s staff, subcontractors, or
other agents’ access to Confidential Information must at a minimum
conform to the password policies described in paragraph A.1.b above.
Passwords used by Contractor’s Customers are not required to conform to
these policies; however, Contractor must ensure that Customers do not
have access to Confidential Information other than that which pertains
to them.
	 	 	 
	5.	 	
Procedures must be in place to modify or revoke access permissions to
Confidential Information when staff members leave the Contractor or when
their job responsibilities change.
	 	 	 
	6.	 	
Printed material that contains Confidential Information must be
stored in secured areas to which access is limited to those staff
members who have a business need to access it. It must also be disposed
of in a secure manner. At a minimum, financial services
industry-standard protections must be employed to ensure the secure
storage and destruction of Secret and Sensitive Information. Whenever
possible, secure disposal alternatives such as on-site shredding prior
to recycling or placement in publicly-accessible trash bins with
subsequent off-site shredding by a licensed contractor should be
implemented.




	B.	 	Transmitting Confidential Information




	 	 	 
	1.	 	
Unless restricted by law, Contractor must not electronically transmit
Secret or Sensitive Information over publicly-accessible networks
without using 128-bit SSL or another mechanism that affords similar or
greater security and confidentiality. If legal restrictions limit the
use of 128-bit SSL encryption technology, Contractor must use the
strongest encryption technology permitted.
	 	 	 
	2.	 	
Confidential Information must never be passed in a URL (e.g., using a
Get method) in a manner that potentially exposes the information to
third parties and causes such information to appear in log files.




	C.	 	Maintaining a Secure Environment




	 	 	 
	1.	 	
To protect the accuracy and integrity of Confidential Information,
all such data must be backed up regularly (no less often than weekly),
and the backups stored in secure, environmentally-controlled,
limited-access facilities.
	 	 	 
	2.	 	
Contractor must promptly install any security-related fixes
identified by its hardware or software vendors, if the security threat
being addressed by the fix is one that threatens the privacy or
integrity of any Confidential Information covered by this Agreement.
Such upgrades must be made as soon as they can safely be installed and
integrated into Contractor’s existing architecture and systems.
	 	 	 
	3.	 	
Intuit may, from time to time, advise Contractor of recent security
threats that have come to its attention, and require Contractor to
implement specific modifications to its software, policies, or
procedures that may be necessary to counter these threats at Intuit’s
cost. Contractor must implement these modifications within a
mutually-agreeable time, or must obtain written permission from Intuit
to take some other course of action to ensure that the privacy and
integrity of any Confidential Information is preserved.
	 	 	 
	4.	 	
Contractor must immediately notify Intuit if it knows or suspects
that Confidential Information has been compromised or disclosed to
unauthorized persons, or if there has been any meaningful or substantial
deviation from the requirements contained in the Agreement or this
Exhibit. See Section F for contact information.
	 	 	 
	5.	 	
Notwithstanding the minimum standards set forth in this Exhibit,
Contractor should monitor and periodically incorporate reasonable
industry-standard security safeguards.




	D.	 	Electronic Mail




	 	 	 
	1.	 	
Contractor shall not send any Secret or Sensitive Information in an
e-mail message over publicly-accessible networks unless the e-mail is
encrypted using a previously-approved encryption mechanism or is
otherwise made secure with an approach that has been mutually agreed
upon in advance by Intuit and Contractor.
	 	 	 
	2.	 	
Contractor and its subcontractors and agents must not reveal the
Personally-Identifiable Information of one customer to any other
customer or other third party, in any e-mail or other communication,
except as permitted in writing by the affected person, as deemed
appropriate in light of the interests of the affected person, or as
otherwise required by law.




	E.	 	Reviews, Audits, and Remedies




	 	 	 
	1.	 	
Contractor agrees that Intuit shall have a right to verify
Contractor’s compliance with this Exhibit. Upon 14 days’ prior written
notice to Contractor, Intuit (or its agent) may enter Contractor’s
premises and inspect such of Contractor’s books, records, facilities and
computer systems as Intuit and Contractor shall mutually agree is
necessary to ensure that Contractor complies with the terms, covenants
and conditions of this Exhibit. Intuit or its agent shall comply with
Contractor’s standard policies and procedures that apply to third party
companies that have access to Contractor’s premises, and Intuit or its
agent shall access Contractor’s premises during normal business hours
(Monday through Friday, 8:00 AM to 5:00 PM). Notwithstanding the
foregoing, if Intuit in good faith believes that an imminent threat to
security exists that could affect Confidential Information, the 14 day
notice shall not apply and Contractor must provide Intuit or its agent
access to its premises immediately upon request by Intuit subject to the
terms of this paragraph.
	 	 	 
	2.	 	
Intuit may inspect or employ third parties to conduct studies of
Contractor’s operational processes, systems and computer network
security to determine Contractor’s compliance with this Exhibit. Intuit
agrees to coordinate the scheduling of any such study with Contractor to
minimize disruption to Contractor’s business. Contractor agrees to
cooperate with Intuit to commence such a study within thirty (30) days
from Contractor’s receipt of written notice of Intuit’s intent to
conduct, or to employ a third party to conduct, such a study. At
Contractor’s request, Intuit will require any third party it employs to
conduct such a study to sign Contractor’s standard nondisclosure
agreement pursuant to which it agrees not to disclose any Confidential
Information. Intuit will make the



15






 




	 	 	 
	 	 	
results of any such study available to Contractor and, depending on the
seriousness of any problems found, may require Contractor to remedy any
and all such deficiencies in a timely fashion. Costs of such audits shall
be borne by Intuit, unless Contractor is deemed, as a result of such an
audit, to be in material nonconformity with the Agreement or this Exhibit.
	 	 	 
	3.	 	
Notwithstanding any time-to-cure provision in this Agreement to the
contrary, it shall be completely within Intuit’s discretion to require
correction of any demonstrated security-related problem within a shorter
period of time. Intuit shall provide written notice of the problem to
Contractor, and Contractor must immediately take appropriate steps to
correct the problem. If Contractor fails to correct any demonstrated
security problem within a commercially-reasonable time, factoring in the
work that must be completed to address the problem, and resulting in the
material disclosure or threatened disclosure of Intuit’s Confidential
Information, Intuit may instruct Contractor to take such interim
measures as are reasonably necessary to protect Intuit’s Confidential
Information. If Contractor fails or refuses to take those interim and/or
permanent measures which are necessary to prevent the material
disclosure of Intuit’s Confidential Information within a
commercially-reasonable time, Intuit may terminate any and all affected
agreements between Intuit and Contractor for cause.




	F.	 	Compliance with U.S. Laws and Regulations
	 
	 	 	Contractor shall comply with all applicable federal, state, and local laws
and regulations.
	 
	G.	 	Changes to Requirements
	 
	 	 	Intuit may, in its sole discretion, amend these requirements from time to
time, as required by law, provided however, that any such amendment that
results in any modification of the Services as performed by Contractor shall
be addressed by the parties in accordance with the change control procedures
in Section 2(f) and as may be set forth in an applicable Statement of Work,
and Intuit shall reimburse Contractor for any costs incurred by Contractor in
connection with such amendment, and further provided however, that if
Contractor is not willing or able to change practices in accordance with such
amendments, Contractor shall be given ninety (90) days to terminate any
applicable Statement of Work.
	 
	H.	 	Contact Information
	 
	 	 	The primary business contact person for each party under this Agreement shall
designate a primary and an alternate single point of contact for security
issues for such party (a “Security SPOC”) and provide mail, email, telephone,
home telephone, and pager or portable telephone contact information for such
persons. Both parties agree that either the primary or alternate Security
SPOC will be available at all times (“24/7/365”). Such designation and
information must be given in writing to the other party within ten (10)
business days after the effective date of the Agreement. Any updates to the
same shall be given promptly in writing to the other party.



16






 


Exhibit G


REIMBURSABLE EXPENSE GUIDELINES



Intuit will reimburse Contractor for its reasonable actual expenses, in
accordance with these Reimbursable Expense Guidelines, provided Intuit has
approved such expenses in writing in advance. Contractor shall invoice Intuit
for the expenses twice each month and provide Intuit with the expense reports
and other documentation necessary to substantiate the statement. Such
reimbursable expenses shall not include fixed overhead, salaries and employee
benefit costs associated with Contractor’s professional employees or agents or
wage and employee benefit costs associated with Contractor’s other employees or
agents for hourly work. The following guidelines set forth the standards to
be applied in reimbursing Contractor for the actual cost of expenses incurred
in the performance of Services under this Agreement:


1.     Out-of-State Employees or Contractors. All employees and contractors
assigned by Contractor to provide Services under this Agreement shall be
located in the state where the Services are to be performed unless Intuit has
reviewed the resumes and agreed in writing in advance to the use of
out-of-state employees or contractors. Therefore, Intuit will not pay
Contractor for out-of-state travel expenses, unless Intuit has approved the use
of the out-of-state employees or contractors and the related travel expenses.


2.     Airfare. If air travel is required, Intuit will reimburse Contractor for
coach or economy airfare, provided Intuit authorizes the airfare in advance.
Intuit reserves the right to arrange the airfares through its arrangement with
American Express Travel Agency. Contractor shall submit the used airline
tickets to Intuit for reimbursement.


3.     Ground Transportation. Intuit will reimburse Contractor for travel from
Contractor’s principal place of business, provided Intuit has authorized such
ground transportation in advance. Contractor shall submit car rental vouchers
or receipts, if applicable. Reimbursement shall be provided as follows:


          a.     At the current mileage reimbursement rate set by the Internal Revenue
Service for use of the personal automobile of Contractor’s personnel from
Contractor’s principal place of business to Intuit’s facility, provided however
Intuit will not reimburse Contractor’s personnel for local travel to Intuit’s
facility;



          b.     For reasonable car rental charges from the airport to Intuit’s facility
and during the assignment;



          c.     For use of public transportation, such as bus or rapid transit or for
reasonable taxi usage.



4.     Incidental Transportation Expenses. Intuit will reimburse Contractor for
incidental transportation expenses such as parking fees for travel to and from
Contractor’s principal place of business and Intuit’s facility.


5.     Lodging and Meals. Intuit will reimburse Contractor for reasonable lodging
and meal expenses when Contractor’s personnel are assigned to a work location
requiring an overnight stay or longer, provided such travel is authorized in
advance by intuit. Contractor shall not be entitled to reimbursement for meals
purchased for persons other than Contractor’s personnel assigned to the
project. Unless otherwise authorized by Intuit, meals shall not exceed US
$50.00 per day.


6.     Telephone. Intuit will reimburse Contractor for long distance and toll
telephone calls placed by Contractor in the performance of Services.


7.     Delivery. Intuit will reimburse Contractor for messenger services,
overnight delivery and other express mail type services when such services are
specifically requested by Intuit or are reasonably necessary for Contractor’s
performance of Services.


8.     Entertainment. Intuit will not reimburse Contractor for entertainment
expenses.


In no event shall the total reimbursable expenses exceed 10% of the total
amount paid for a Statement of Work.