{"id":42393,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/joint-activities-agreement-intuit-inc-and-excite-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"joint-activities-agreement-intuit-inc-and-excite-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/joint-activities-agreement-intuit-inc-and-excite-inc.html","title":{"rendered":"Joint Activities Agreement &#8211; Intuit Inc. and Excite Inc."},"content":{"rendered":"<pre>\n                           JOINT ACTIVITIES AGREEMENT\n\n         THIS JOINT ACTIVITIES AGREEMENT (\"Agreement\") is entered into as of\nJune 25, 1997 (the \"EFFECTIVE DATE\") between Intuit Inc., a Delaware corporation\n(\"INTUIT\"), and Excite, Inc., a California corporation (\"EXCITE\").\n\n                                    RECITALS\n\n         A. Intuit and Excite are parties to that certain Letter Agreement dated\nas of June 11, 1997, relating to the provision of financial content on Excite's\ngeneral purpose Internet search and navigation service and the provision of\nfinancial content for all of Excite's properties and ventures (the \"LETTER\nAGREEMENT\").\n\n         B. As contemplated by the Letter Agreement, this Agreement contains the\ndefinitive agreement of the parties relating to the subject matter of the Letter\nAgreement and shall supersede the Letter Agreement in its entirety as of the\nEffective Date.\n\n                                    AGREEMENT\n\n         1. DEFINITIONS. Capitalized terms used and not otherwise defined in\nthis Agreement shall have the following meanings, respectively:\n\n                  1.1 \"ADVERTISING MARGIN\" means Advertising Revenue, less the\nsum of:\n\n                           (a)      advertising selling costs,\n\n                           (b)      Hosting, Services costs,\n\n                           (c)      payments made to third parties made or\n                                    approved by Intuit for the generation of\n                                    traffic to the Financial Channel to the\n                                    extent such payments are offset by revenues\n                                    resulting from such traffic, and\n\n                           (d)      Bad Debt.\n\n                            1.2 \"ADVERTISING REVENUE\" means the sum of the\naggregate amounts billed for the license or sale of any Advertising Rights, less\nthe sum of:\n\n                           (a)      amounts allocable to any credits granted for\n                                    unused Advertising Rights,\n\n                           (b)      agency, camera-ready art and other discounts\n                                    actually provided,\n\n                           (c)      refunds, rebates, make goods and similar\n                                    credits, and\n\n                           (d)      applicable taxes\n\n\n\n                                       1\n\n\n                  1.3 \"ADVERTISING RIGHTS\" means any advertising, sponsorship,\nlinking and similar promotional rights sold or licensed in connection with the\nFinancial Channel.\n\n                  1.4 \"AFFILIATE\" of any party means any entity that controls,\nis controlled by or is under common control with such party. For purposes of\nthis definition, \"control\" shall mean the possession, directly or indirectly, of\na majority of the voting power of such entity (whether through ownership of\nsecurities or partnership or other ownership interests, by contract or\notherwise).\n\n                  1.5 \"BAD DEBT\" means actual bad debt experienced subject to an\ninitial reserve based on a reasonable estimate not to exceed five percent (5%).\n\n                  1.6 \"CONFIDENTIAL INFORMATION\" means any information of a\nparty disclosed to the other party in the course of this Agreement, which is\nidentified as, or should be reasonably understood to be, confidential to the\ndisclosing party, including, but not limited to, know-how, trade secrets, Data,\ntechnical processes and formulas, source codes, product designs, sales, cost and\nother unpublished financial information, product and business plans,\nprojections, marketing data and this Agreement and all exhibits hereto.\n\"Confidential Information\" shall not include information which: (i) is known or\nbecomes known to the recipient directly or indirectly from a third-party source\nother than one having an obligation of confidentiality to the providing party;\n(ii) is or becomes publicly available or otherwise ceases to be secret or\nconfidential, except through a breach of this Agreement by the recipient; or\n(iii) is or was independently developed by the recipient without use of or\nreference to the providing party's Confidential Information, as shown by\nevidence in the recipient's possession.\n\n                  1.7 \"DATA\" shall have the meaning set forth in Section 7.2\nhereof.\n\n                  1.8 \"DERIVATIVE WORK\" means all \"derivative works\" and\n\"compilations,\" within the meaning of such terms as defined in the U.S.\nCopyright Act (I 7 U.S.C. Section 101 et seq.).\n\n                  1.9 \"DIRECT COST\" means the incremental expenses (i.e., the\nexpenses that would not be incurred but for the relevant activity) incurred by\neither party directly associated with an activity. In the case of personnel\nutilized for an activity, this will include salary, benefits, payroll taxes,\nbonuses, and a proportionate allocation of rent and utilities. All personnel\nfully dedicated to an activity will be automatically included in that activity's\nDirect Costs, and partially-dedicated personnel will be included on a pro-rata\nbasis upon mutual agreement of the parties. In the case of equipment and\nservices utilized for an activity, this will include the cost of additional\nhardware, physical space or services required by the activity, unless such costs\nare included in COPS charges (as defined in Section 5.1.6 below) paid by Intuit\nfor Hosting Services. \"Direct Costs\" will also include all documented direct\nexpenses made or approved by Intuit to third parties incurred to support the\nactivity, including, without limitation, traffic-generation fees and\npercentages, co-promotion and co-branding fees and percentages, royalties,\npromotion and marketing costs, legal and regulatory costs, content generation\nand acquisition costs and development costs. \"Direct Costs\" will not include\nallocations of corporate overhead, direct or indirect, nor costs incurred by\neither party to \n\n\n\n                                       2\n\n\ndevelop or obtain hardware, software or services otherwise primarily utilized\nfor that party's own independent activities; provided, however, that each party\nwill include a ten percent (10%) markup to its calculation of Direct Costs to\ncover administrative overhead.\n\n                  1.10 \"EXCITE BRAND FEATURES\" means Excite's trademarks, trade\nnames, service marks, service names and distinct brand elements that appear in\nthe Excite Properties from time to time and are protected under U.S. copyright\nlaw or as to which Excite has established trademarks or trade dress rights and\nany modifications to the foregoing that may be created during the Term.\n\n                  1.11 \"EXCITE BRAND GUIDELINES\" means the guidelines for use of\nthe Excite Brand Features, which are attached to this Agreement as Exhibit A, as\namended by Excite from time to time during the Term.\n\n                  1.12 \"EXCITE PROPERTIES\" means all properties, ventures and\nservices worldwide marketed under the Excite Brand Features, including, without\nlimitation, those services currently known as \"Excite,\" \"WebCrawler,\" and\n\"Magellan,\" and Excite's component of the \"AOL NetFind by Excite\" Services, and\nall properties, ventures, and services in which Excite owns a fifty percent\n(50%) or greater interest during the Term.\n\n                  1.13 \"FINANCIAL CHANNEL\" means the Financial Content\n(excluding tax and small business content that is not located on the Jointly\nBranded Pages or the Multi-Category Personalized Pages, Intuit Desktop Products\nand all other Intuit software products that are primarily for desktop use, and\nonline activities associated directly with the Intuit Desktop Products and such\nother Intuit desktop software products) displayed within (a) the Excite\nProperties (including, without limitation, the Financial Portion of\nMulti-Category Personalized Pages), (b) the Jointly Branded Pages or (c) WWW\nsites owned, operated and managed by Intuit or for Intuit by third parties and\nLinked to the Excite Properties during the Term. The Financial Channel does not\ninclude Financial Content developed by or for Intuit or any third party and\nincluded within (a) any WWW sites owned, operated or managed by or on behalf of\na third party or (b) any co-branded WWW Pages in which Intuit has an interest\n(other than the Jointly Branded Pages) whether or not such co-branded pages\nreside on Intuit's servers under Intuit's URL.\n\n                  1.14 \"FINANCIAL CONTENT\" means content, channels and services\nrelating to personal finance, small businesses, tax, general business news and\nsimilar topics, and includes, without limitation:\n\n                  -        stock and mutual fund quotes, rates and portfolio\n                           management;\n                  -        online banking;\n                  -        online financial services;\n                  -        billpay;\n                  -        online bill presentment;\n                  -        non-bank branded bill payment;\n                  -        tax filing and information;\n\n\n\n                                       3\n\n\n                  -        small business lending;\n                  -        payroll information or services;\n                  -        retirement planning;\n                  -        checkbook management (personal finance and small\n                           business accounting);\n                  -        investments;\n                  -        account data (such as investment portfolios, bank\n                           accounts, credit card accounts, loan accounts,\n                           insurance accounts and frequent flyer accounts);\n                  -        credit cards and smart cards;\n                  -        electronic wallets;\n                  -        financial planning;\n                  -        personal finance, small business and tax news,\n                           research and information, (including listings,\n                           databases, rates, quotes and charts);\n                  -        financial education;\n                  -        financial chat, forums and bulletin boards;\n                  -        decision making and comparison tools (such as\n                           programs, applets and calculators);\n                  -        financial marketspaces including insurance, mortgage,\n                           equity trading and small business lending;\n                  -        financial advice from experts; and\n                  -        reviews and listings of financial WWW sites and\n                           services.\n\n                  1.15 \"FINANCIAL CONTENT SERVICE\" means the Internet-based\nconsumer financial information and functionality services (exclusive of any\npersonal tax content or functionality) provided as of the date of this Agreement\nby Yahoo!, Infoseek, Lycos, Quote.com, DBC, Stockmaster and Microsoft. For\npurposes of this definition, the parties may amend this list of providers\nconsisting of Intuit's competitors once during each year of the Term, upon\nmutual written agreement.\n\n                  1.16 \"FINANCIAL PORTION\" means, with respect to a given\nMulti-Category Personalized Page, the area on that page devoted to Financial\nContent divided by the total area of the page devoted to Financial Content and\nall other content (excluding advertising, navigation elements and general\nheadings).\n\n                  1.17 \"GENERAL SEARCH SERVICE\" means a general-purpose Internet\nsearch and navigation service for content other than Financial Content provided\nas of the date of this Agreement by Yahoo!, Infoseek, Lycos, Alta Vista, HotBot,\nSearch.com and Microsoft. For purposes of this definition, the parties may amend\nthis list of providers consisting of Excite's competitors once during each year\nof the Term, upon mutual written agreement.\n\n                  1.18 \"HOSTING SERVICES\" means the provision and management of\nservers, telecommunications, facilities, maintenance and operations related to\nthe delivery of internet based services and content.\n\n\n\n                                       4\n\n\n                  1.19 \"INNOVATIONS\" means all copyrightable works, products,\ndiscoveries, developments, designs, innovations, improvements, inventions,\nformulas, processes, techniques, know-how, compilations, content and data\n(whether or not patentable, and whether or not at a commercial stage, or\nprotectable or registrable under copyright or similar statutes) authored,\ncompiled, fixed in a tangible medium of expression, made, conceived, or reduced\nto practice.\n\n                  1.20 \"INTELLECTUAL PROPERTY RIGHTS\" means all intellectual\nproperty rights arising under statutory or common law, whether or not perfected,\nincluding, without limitation, all (a) United States and foreign patents, patent\napplications, and other patent rights. including, without limitation, divisions,\ncontinuations, renewals, reissues, and extensions of any of the foregoing, (b)\nrights associated with works of authorship including copyrights, copyright\napplications, copyright registrations, and moral rights, (c) Confidential\nInformation, (d) any right analogous to those set forth in this definition, and\n(e) any other proprietary rights relating to intangible property (other than\ntrademarks, trade names, trade dress, and service marks which are not included\nfor purposes of this definition).\n\n                  1.21 \"INTUIT BRAND FEATURES\" means Intuit's trademarks, trade\nnames, service marks, service names and distinct brand elements that appear in\nthe Financial Channel from time to time and are protected under U.S. copyright\nlaw or as to which Intuit has established trademarks or trade dress rights and\nany modifications to the foregoing that may be created during the Term.\n\n                  1.22 \"INTUIT BRAND GUIDELINES\" means the guidelines for use of\nthe Intuit Brand Features, which are attached to this Agreement as Exhibit B, as\namended by Intuit from time to time during the Term.\n\n                  1.23 \"INTUIT DESKTOP PRODUCTS\" means the United States version\nof Intuit's major desktop software products currently known as \"Quicken,\"\n\"QuickBooks,\" and \"TurboTax Personal 1040\" and any equivalent or successor\nproducts marketed, distributed or sold, directly or indirectly, by Intuit during\nthe Term.\n\n                  1.24 \"JOINTLY-BRANDED PAGES\" means WWW Pages which carry both\nIntuit Brand Features and Excite Brand Features.\n\n                  1.25 \"LICENSED SOFTWARE\" means any software, in both source\ncode and object code formats, and any associated reference, user and other\ndocumentation developed by Excite (either alone or jointly with Intuit or\nothers) or owned by Excite, which Intuit utilizes or is dependent upon to\ncreate, administer, operate, track or deliver Financial Content, advertising and\ntransactions and which Intuit elects to license under Section 5.1.4 of this\nAgreement, and any updates, new releases, new versions, bug fixes, and other\nmodifications thereto created by Excite (either alone or jointly with Intuit or\nothers) to such licensed software.\n\n                  1.26 \"LINK\" means a URL hidden behind a formatting option that\nmay take the form of a colored item of text (such as a URL description), logo or\nimage, and which allows \n\n\n\n                                       5\n\n\na user to automatically move to or between WWW Pages, WWW sites or within a WWW\ndocument.\n\n                  1.27 \"MULTI-CATEGORY PERSONALIZED PAGES\" means WWW Pages\nincluded within the enhanced, personalized Internet search and navigation\nservice marketed as of the date of this Agreement by Excite as \"My Excite\nChannel\" and WWW Pages included within any service located in the Excite\nProperties during the Term that provides substantially similar content and\nfunctionality.\n\n                  1.28 \"SUBSCRIPTION REVENUE\" means the sum of the aggregate\namounts billed on either a one-time or periodic basis for access to content,\nservices or information in the Financial Channel, less the sum of:\n\n                           (a)      refunds, rebates. make goods and similar\n                                    credits,\n\n                           (b)      agency and other discounts actually\n                                    provided, and\n\n                           (c)      applicable taxes.\n\n                  1.29 \"SUPPORT SERVICES\" shall have the meaning set forth in\nSection 5.1 hereof\n\n                  1.30 \"TERM\" means the term of this Agreement as provided in\nSection 11.\n\n                  1.31 \"TERRITORY\" means the entire world.\n\n                  1.32 \"TRANSACTION MARGIN\" means Transaction Revenues less the\nsum of:\n\n                           (a)      all associated Direct Costs, and\n\n                           (b)      Bad Debt.\n\n                  1.33 \"TRANSACTION REVENUE\" means all the sum of the aggregate\namounts billed on a per transaction basis for financial and commercial\ntransactions initiated and\/or completed in the Financial Channel, less the sum\nof:\n\n                           (a)      refunds, rebates, make goods and similar\n                                    credits,\n\n                           (b)      agency and other discounts actually\n                                    provided, and\n\n                           (c)      applicable taxes\n\n                  1.34 \"THIRD PARTY SOFTWARE\" shall have the meaning set forth\nin Section 6.5 hereof.\n\n                  1.35 \"URL\" means Universal Resource Locator, which provides a\nunique Internet protocol address for accessing a WWW page.\n\n\n\n                                       6\n\n\n                  1.36 \"WWW\" means the World Wide Web, a system for accessing\nand viewing text, graphics, sound and other media via the collection of computer\nnetworks known as the Internet.\n\n                  1.37 \"WWW PAGE\" means a page or view on WWW sites or which are\ndelivered to Internet users via e-mall, desktop \"channels\" or Internet \"push\"\ntechnologies which display content in the form of text, graphics, data and\/or\nHTML code for the purpose of providing access to content, products and\/or\nservices.\n\n         2. FINANCIAL CHANNEL\n\n                  2.1 DEVELOPMENT OF FINANCIAL CHANNEL. During the Term, Intuit\nwill use commercially reasonable efforts, at Intuit's sole expense, to develop,\nmaintain and promote the Financial Channel so as to be the exclusive provider of\nFinancial Content on all Excite Properties; provided, that Intuit makes no\nrepresentation or warranty as to the actual level of traffic that will be\nachieved in the Financial Channel. Notwithstanding Intuit's exclusive right set\nforth in Section 2.2 below, Intuit will determine in its sole discretion the\nbreadth and scope of the content and functionality that it will provide with\nrespect to small business and tax.\n\n                  2.2 EXCLUSIVE RIGHT TO PROVIDE FINANCIAL CONTENT. During the\nTerm and subject to the mutual agreement of the parties as to any exceptions,\n(a) Intuit shall have the exclusive right within the Territory to provide\nFinancial Content for all Excite Properties, and (b) no other Financial Content,\nwhether provided by Excite or by third parties, nor Links to any other such\nFinancial Content or Financial Content Service, will appear in any of the Excite\nProperties.\n\n                  2.3 TITLE; PRESENTATION OF BRAND FEATURES. The title of the\nFinancial Channel shall be jointly branded or as otherwise titled by mutual\nagreement of the parties. The presentation of the Excite Brand Features and the\nIntuit Brand Features in the Financial Channel shall adhere to the Excite Brand\nGuidelines and the Intuit Brand Guidelines, respectively.\n\n                  2.4 CONTROL OF FINANCIAL CHANNEL. Intuit will have complete\neditorial authority as to content and programming presented in the Financial\nChannel, provided that (i) Excite and Intuit shall cooperate to establish common\ntechnology platforms and technical specifications, and (ii) Excite shall\nestablish reasonable standards and practices (including graphic design templates\nand content guidelines) to be observed on all Jointly-Branded Pages. Intuit\nshall have the right to sell, and establish the rates and other terms and\nconditions for all transactions and activities generating revenue in the\nportions of the Financial Channel located at Intuit URLs subject to the sale of\nAdvertising Rights as provided in Section 2.5 below.\n\n                  2.5 SALE OF ADVERTISING RIGHTS. Each party shall have the\nright to sell the Advertising Rights located on its URLs - unless such rights\nare otherwise assigned by mutual agreement. Each party shall have the right to\nestablish the rates and other terms and conditions for the sale of its\nAdvertising Rights. Each party shall be responsible for billing and collection\n(including the collection and\/or payment of any taxes, if applicable) and the\nrisk of such \n\n\n\n                                       7\n\n\ncollection for sales of Advertising Rights located on its URLS. Within fifteen\ndays of close of each month, Excite shall provide Intuit with a report setting\nforth in reasonable detail the calculation of the amount of Advertising Revenue\nsold for such month for the Jointly-Branded Pages located at the Excite URLs and\nthe Financial Portion of the Multi-Category Personalized Pages, and the Direct\nCosts associated with such activity. During the Term, Excite shall use its best\nefforts to permit Intuit to sell up to fifty percent (50%) of the ad inventory\nfor the Jointly Branded Pages on terms and conditions that are not inconsistent\nwith the terms and conditions under which such Advertising Rights are sold by\nExcite.\n\n                  2.6 REVENUE. During the Term, Intuit will be entitled to\nreceive all revenue, generated in the Financial Channel. Excite will recognize\nall Advertising Revenues from the Excite Properties and from any Jointly Branded\nPages which are located at the Excite Network's URLS. Notwithstanding the\nforegoing, Excite will pay Intuit all revenues (including Advertising Revenue,\nSubscription Revenue and Transaction Revenue), generated by pages or views\ncontaining only Financial Content. Excite will also pay Intuit the Financial\nPortion of the Advertising Revenues, generated on Multi-Category Personalized\nPages. This revenue sharing by Excite will accrue at the end of each calendar\nquarter and Excite will make payment to Intuit within 45 days after the end of\neach calendar quarter.\n\n         3. PROMOTION AND BRANDING.\n\n                  3.1 INTUIT PROMOTION. During the Term, Intuit will exclusively\npromote Excite's general-purpose Internet search and navigation services by\nincluding Links to the Excite's Properties in all Intuit Desktop Products\nbeginning with the first major update (as identified by a change in the number\nto the left of the decimal in version designation) introduced in general\ndistribution following the Effective Date. During the Term, Intuit (a) will\ndisplay Excite Brand Features exclusively within such Intuit Desktop Products\nwherever it refers to general-purpose Internet search and navigation services\nand (b) will not promote any General Search Service within such Intuit Desktop\nProducts.\n\n                  3.2 EXCITE PROMOTION. During the Term, Excite (a) will\nexclusively promote Intuit's consumer financial information and functionality\nservices in all of the Excite Properties and (b) will not promote any Financial\nContent Service in any of the Excite Properties. Excite shall display a Link to\nthe Financial Channel prominently above the fold (x) on the home page of each of\nthe Excite Properties and (y) on all WWW Pages included in the Excite Properties\nwhich contain one or more Links to Excite Channels (other than a Link (i) within\na WWW Page that is generated in response to query submitted to the general\npurpose Internet search and navigation service or (ii) to WWW Pages owned\noperated and managed by or for the co-sponsor of a co-branded WWW Page (other\nthan the Jointly Branded Pages)). Except as mutually agreed by the parties, on\nany WWW Page in the Excite Properties on which a Link to the Financial Channel\nis displayed, such Link shall be equal in size and prominence as any other Link\ndisplayed on such WWW Page.\n\n                  3.3 LOCATION AND BRANDING. During the Term, the portions of\nall Excite Properties that do not contain Financial Content and the\nMulti-Category Personalized Pages \n\n\n\n                                       8\n\n\nwill reside solely on Excite's servers and will carry Excite Brand Features and\nExcite URLs. The initial interfaces (at a minimum, the first two (2) WWW Pages)\nfrom the portions of all Excite Properties that do not contain Financial Content\nto the Financial Channel will be Jointly Branded Pages, will reside solely on\nExcite's servers and will carry both Excite Brand Features and Intuit Brand\nFeatures, displayed in substantially equivalent location, size and prominence,\nand Excite URLs. The parties will cooperate in good faith to develop and\nmaintain the content displayed on the Jointly Branded Pages. The remainder of\nthe Financial Channel will reside solely on Intuit's servers (except to the\nextent that Intuit contracts with Excite or a third party to provide hosting\nservices) and carry Intuit Brand Features and Intuit URLs.\n\n         4. PAYMENTS.\n\n                  4.1 MARGIN SHARING. During the first two (2) years of the\nTerm, Intuit will pay Excite an amount equal to (a) fifty percent (50%) of the\nAdvertising Margin from all of the parties' advertising-supported businesses\nutilizing the Financial Channel and (b) fifty percent (50%) of the net positive\nTransaction Margin if any, from all transaction-oriented businesses utilizing\nIntuit's consumer financial content.\n\n                  4.2 JOINT PROFITS. The sum of all revenues associated with the\nFinancial Channel minus the sum of (i) all Direct Costs associated with the\nFinancial Channel and (ii) Bad Debt will be deemed the Joint Profits. Direct\nCosts associated with the provision of small business and\/or tax content will be\nallocated between the Financial Channel pages (Jointly Branded Paces and\nMulti-Category Pages), and non-Financial Channel pages (to the extent that such\nsmall business and\/or tax content appears both in the Financial Channel and\nnon-Financial Channel pages) based on the number of page views or transactions,\nas applicable, originating from such pages. Commencing at the second anniversary\nof the Term and continuing during the remainder of the Term, Excite will receive\none-third (33 1\/3%) of the Joint Profits.\n\n                  4.3 PAYMENT AND REPORTING. The payment amounts described in\nthe Section 4.1 will be determined at the end of each applicable calendar\nquarter, and Intuit will make payment within forty-five (45) days after the end\nof such quarter. The payment amounts described in Section 4.2 will be determined\nat the end of each applicable Intuit fiscal quarter, and Intuit will make\npayment within forty-five (45) days after the end of such fiscal quarter. Intuit\nshall provide to Excite, together with its payment (or, if no payment is due for\nany applicable quarter, within forty-five (45) days after the end of such\nquarter), a report in reasonable detail setting forth the calculation of the\namounts payable.\n\n                  4.4 AUDIT RIGHTS.\n\n                            4.4.1. Excite shall have the right, at its own\nexpense, to direct an independent certified public accounting firm to inspect\nand audit of all the accounting and sales books and records of Intuit that are\nrelevant to amounts payable by Intuit hereunder; provided, that (a) any such\ninspection and audit shall be conducted during regular business hours in such a\nmanner as not to interfere with normal business activities; (b) in no event\nshall audits be made hereunder more frequently than once each calendar year; (c)\nif any audit should disclose an \n\n\n\n                                       9\n\n\nunderpayment, Intuit shall immediately pay such amount to Excite; and (d) the\nreasonable fees and expenses relating to any audit which reveals an underpayment\nin excess of ten percent (10%) of the amount owing for the reporting period in\nquestion shall be borne entirely by Intuit.\n\n                            4.4.2. Intuit shall have the right, at its own\nexpense, to direct an independent certified public accounting firm to inspect\nand audit of all the accounting and sales books and records of Excite that are\nrelevant to Advertising Revenue arising out of or associated with Financial\nContent displayed within the Excite Properties; provided that (a) any such\ninspection and audit shall be conducted during regular business hours in such a\nmanner as not to interfere with normal business activities; (b) in no event\nshall audits be made hereunder more frequently than once each calendar year; (c)\nif any audit should disclose an underpayment, Excite shall immediately pay such\namount to Intuit; and (d) the reasonable fees and expenses relating to any audit\nwhich reveals an underpayment in excess of ten percent (10%) of the amount owing\nfor the reporting period in question shall be borne entirely by Excite.\n\n         5. ADDITIONAL AGREEMENT OF THE PARTIES.\n\n                  5.1 SUPPORT SERVICES. Subject to this Section 5.1, during the\nTerm, upon the reasonable written request of Intuit and subject to Intuit's\napproval of any Direct Costs or COPS charges to be incurred for Hosting\nServices, Excite will use commercially reasonable efforts to provide any or all\nof the following services to Intuit (collectively, the \"SUPPORT SERVICES\"):\n\n                            5.1.1 DEVELOPMENT OF FINANCIAL CONTENT. Excite will\nassist Intuit in the development of Financial Content.\n\n                            5.1.2 ADVERTISING SALES. Excite will provide\nadvertising sales services for Intuit. The anticipation of the parties is that\none (1) advertising sales representative will be hired or assigned in each of\nExcite's four (4) sales offices to work exclusively on selling Advertising\nRights associated with the Financial Channel; these representatives will be\nExcite employees and report on a dotted-line basis to Excite's sales management,\nbut will report directly to an Intuit-employed sales manager. Excite and Intuit\nwill cooperate in good faith to coordinate the sales commission structures of\ntheir respective advertising sales personnel so as to maximize sales\nopportunities for both parties' services. Each party shall have the right to\nreasonably refuse any advertising sold by the other on the Jointly-Branded\nPages.\n\n                            5.1.3 HOSTING AND SOFTWARE SERVICES. Excite will\nprovide Hosting Services and software services for Intuit, including the hosting\nand operation of both Excite-developed and Intuit-developed systems stems and\nsoftware. Intuit will have the right to utilize Excite's software, systems,\nHosting Services and operations to deliver Financial Content that is either (a)\nincluded in the Financial Channel and jointly branded, (b) included in the\nFinancial Channel and Intuit branded, or (c) not included in the Financial\nChannel (such as tax or small business content, or content co-branded by other\nthird parties). Intuit will have the right to interface any Excite servers\nhosting Financial Content with Intuit hosted systems for the sole purpose of\naccessing data associated with the Financial Content. Such Intuit hosted systems\n\n\n\n                                       10\n\n\n\nshall include without limitation, accounts receivable, financial or customer\ninformation systems.\n\n                            5.1.4 STATEMENT OF WORK. In connection with any\nrequest on the part of Intuit for the performance of Support Services by Excite,\nIntuit shall prepare for Excite's approval, a statement of work (each, a\n\"STATEMENT OF WORK\"), in form and substance reasonably acceptable to the\nparties. Excite shall not withhold approval of any reasonable Statement of Work\nsubmitted by Intuit. The Statement of Work shall reference this Agreement and\nshall set forth each of the following in detail, if applicable to the Support\nServices to be provided: a schedule of deliverables; a detailed specification\nfor the deliverables; a detailed description of the scope of Support Services to\nbe provided; a schedule for completion of the Support Services; performance,\nmonitoring and uptime standards for hosting services to be provided; performance\nstandards for systems to be operated; training, maintenance and support services\nto be provided for systems and software; termination rights, procedure and cure\nperiod; a good faith estimate of the Direct Costs, or if Hosting Services are\nprovided the COPS charges; arising out of or associated with the Support\nServices to be provided for a minimum period of twelve (12) months (unless the\nSupport Services are to be completed in a shorter period); arrangements\nregarding the ownership of Innovations developed in the course of provided the\nSupport Services; and any additional terms mutually agreed by the parties. Any\nStatement of Work approved by the parties shall be executed and attached as an\nexhibit to this Agreement and is incorporated herein by this reference.\n\n                            5.1.5 PERFORMANCE OF SERVICES. All Support Services\nwill be provided by Excite using Excite employees, resources and consultants\n(under written contract to Excite and bound by non-disclosure agreements\napplicable to this Agreement), unless otherwise expressly agreed by the parties\nin a Statement of Work or otherwise. All of the Support Services will be\nperformed in a diligent and workmanlike manner and in accordance with the\nspecifications, scope of work and schedule, if any, set forth in a Statement of\nWork. All Excite employees and\/or consultants performing Support Services shall\npossess the requisite skill and experience to provide such Support Services. On\nIntuit's reasonable request, Excite will replace any employee or consultant\nassigned to provide Support Services.\n\n                            5.1.6 CONSIDERATION FOR SUPPORT SERVICES. For\nSupport Services other than Hosting Services provided by Excite pursuant to this\nSection 5, Intuit will pay Excite the Direct Costs incurred by Excite in\nconnection therewith. For Hosting Services, Intuit will pay Excite its then\ncurrent costs per page served (\"COPS\") for Hosting Services for comparable types\nof pages, or other pricing mechanisms which may be mutually agreed from time to\ntime by the parties. COPS shall be calculated in a manner consistent with the\nmethodology used to calculate such costs in Excite's internal management reports\nas of the date of this Agreement. Such Direct Costs and\/or COPS charges shall be\ninvoiced by Excite each calendar quarter and such invoices shall be payable by\nIntuit within forty-five (45) days following the date of the invoice. Each\ninvoice relating to Support Services shall be accompanied by a statement setting\nforth in reasonable detail the calculation of the Direct Costs and\/or COPS\ncharges covered by the invoice.\n\n\n\n                                       11\n\n\n                  5.2 RECRUITING. During the Term and for a period of one (1)\nyear thereafter, neither party nor any Affiliate thereof will, directly or\nindirectly, solicit or hire employees (or prospective employees) of the other\nparty or any Affiliate thereof, or take any action reasonably anticipated to\nresult in hiring such employees (or prospective employees) without the prior\nwritten consent of the other party.\n\n                  5.3 PERFORMANCE REVIEW. During the Term the parties will meet\nat least once each calendar quarter to review their financial and operational\nperformance under this Agreement. Such meetings shall be held at the executive\noffices of Intuit or Excite in alternating quarters or at a neutral location,\nsubject to the mutual agreement of the parties, and shall be attended by the\noperational, editorial and financial mangers directly responsible for the\ncollaboration that is the subject of this Agreement.\n\n                  5.4. NEW MARKETS. Intuit will have the right, but not the\nobligation, to provide Financial Content localized into languages other than\nEnglish or promote the Excite Properties in its software outside of the United\nStates. The parties recognize that Excite offers or may offer general-purpose\nInternet search and navigation services in countries in which Intuit does not\noffer localized Financial Content. Intuit will have a right of first refusal to\nprovide such localized Financial Content to Excite if it can do so without\ndelaying Excite's service launch. Excite will not enter into arrangements with\nthird parties that would prevent the Financial Content from being offered in\nconnection with non-U.S. Excite Properties when localized Financial Content\nbecomes available.\n\n                  5.5 SMALL BUSINESS AND TAX OPPORTUNITIES. If, at any time\nduring the Term, Intuit shall investigate establishing a relationship with a\nthird party pursuant to which Intuit would (i) create a multi-year agreement to\nshare profits on all of Intuit's tax or small business related online activates\nregardless of whether the customers generating those profits originate from such\nthird party or from other sources, or (ii) promote general-purpose Internet\nsearch and navigation services in any Intuit small business or tax software\nproducts other than the Intuit Desktop Products, then Intuit shall deliver to\nExcite written notice of its intention and enter into discussions with Excite in\ngood faith on a non-exclusive basis for a period of thirty (30) days regarding\nthe establishment of such a relationship. If at the conclusion of such thirty\n(30) day period Intuit and Excite are unable to reach agreement with respect to\nthe material terms of such a relationship, then Intuit shall be free to enter\ninto such a relationship with a third party other than Excite, without liability\nto Excite.\n\n                  5.6 CHANGES OVER TIME. The parties acknowledge that, because\nof the rapid pace of technological change and evolution in the industries\nassociated with the Internet and software related thereto, many of the\nunderlying facts and circumstances (including assumptions regarding the facts\nand circumstances) that were the basis for the allocation of various rights and\nobligations pursuant to this Agreement are likely to change over time. In\ndrafting this Agreement, the parties have addressed relevant facts and issues as\nthey exist with current technologies and today's business models; however, the\nparties also intend for this Agreement to remain in force throughout the Term as\nsuch technologies and business models change over time, with appropriate\nmodifications to reflect such equitable adjustments as are \n\n\n\n                                       12\n\n\nrequired to maintain a substantially comparable allocation of rights and\nobligations in light of changed circumstances. The parties do not intend for\nthis Agreement to be effectively nullified or abrogated because of changed\ncircumstances, but rather intend that the intent and purpose of this Agreement\nbe preserved as circumstances change. To such end, the parties agree that\ncertain provisions regarding the parties' respective rights and obligations\nunder this Agreement, while drafted to address current circumstances, are also\nintended to reflect general principles to be implemented by the parties in a\npragmatic and meaningful way as such circumstances change. Notwithstanding the\nforegoing, the provisions of this Section 5.6 shall not apply to those rights\nand\/or obligations that should not be affected by changes in technology and\/or\nbusiness models.\n\n         6. LICENSES.\n\n                  6.1 GRANT OF LICENSES BY EXCITE.\n\n                            (a) Excite hereby grants and agrees to grant to\nIntuit during the Term a nonexclusive, royalty-free (subject to Section 6.5),\nworldwide license under all of Excite's Intellectual Property Rights to use,\nreproduce (for back-up purposes only), and prepare Derivative Works from the\nLicensed Software, and portions thereof, either alone or as part of or embedded\nor incorporated in other products for the exclusive purpose of creating,\nadministering, operating, tracking or delivering the Financial Content,\nadvertising and transactions. Any Derivative Works created by Intuit hereunder\nwill be the exclusive property of Intuit. After the expiration or termination of\nthis Agreement, this license will continue in full force and effect so long as\n(i) Intuit pays Excite its porportionate share of any incremental third party\nroyalties incurred by Excite due to Intuit's use of any Third Party Software\nincorporated into the Licensed Software and (ii) the Licensed Software is not\nused by Intuit to provide general-purpose Internet search and navigation\nservices.\n\n                            (b) Excite further grants and agrees to grant Intuit\nduring the Term a nonexclusive, royalty-free, worldwide license under all of\nExcite's Intellectual Property Rights to distribute, reproduce, transmit and\ndisplay the Excite Brand Features in the Financial Channel and the Intuit\nDesktop Products (in the manner described in this Agreement), and in connection\nwith the distribution, marketing and promotion of the Financial Channel and the\nIntuit Desktop Products, subject in each case to compliance with the Excite\nBrand Guidelines.\n\n                  6.2 GRANT OF LICENSE BY INTUIT. Intuit hereby grants and\nagrees to grant to Excite a nonexclusive, royalty-free, worldwide license under\nall of Intuit's Intellectual Property Rights to distribute, reproduce, transmit\nand display the Intuit Brand Features in the Excite Properties (in the manner\ndescribed in this Agreement), and in connection with the distribution, marketing\nand promotion of the Excite Properties, subject in each case to compliance with\nthe Intuit Brand Guidelines.\n\n                  6.3 DELIVERY. Excite shall deliver to Intuit, promptly upon\nreceipt of Intuit's written request, one (1) copy each of the software component\nof the Licensed Software, in object code and source code formats, and one copy\nof each item of documentation included in the Licensed Software.\n\n\n\n                                       13\n\n\n                  6.4 OWNERSHIP. Except for the licenses granted in this Section\n6, as between Excite and Intuit, (a) Excite shall have full and exclusive right,\ntitle and ownership interest in and to the Licensed Software, the Excite Brand\nFeatures and the Intellectual Property Rights therein and (b) Intuit shall have\nfull and exclusive right, title and ownership interest in and to (i) the Intuit\nBrand Features and the Intellectual Property Rights therein and (ii) the\nDerivative Works of the Licensed Software created by or for Intuit pursuant to\nthis Agreement and the Intellectual Property Rights therein. subject to the\nunderlying license to Excite's Licensed Software granted hereunder. Intuit will\nnot remove any product identification. copyright or other notices from the\nLicensed Software contained in any Derivative Works.\n\n                  6.5 THIRD-PARTY SOFTWARE. If any part of the Licensed Software\nhas been or in the future is licensed to Excite by a third party software\ndeveloper or supplier (\"THIRD PARTY SOFTWARE\"), such Third Party Software shall\nbe included within the definition of Licensed Software for the purposes of\nSection 6.1 above, and Excite shall grant to Intuit a sublicense thereto;\nprovided, however, that Excite first obtains any necessary third party consents\nrelated thereto and, provided further, that, Intuit shall be subject to any and\nall conditions for, and restrictions on, use of the Third Party Software as\nrequired by the third party licensor thereof. Notwithstanding the foregoing,\nExcite will use commercially reasonable efforts to obtain any necessary third\nparty consents related to any Third Party Software and, to the extent Excite is\nunable to obtain any such third party consent, Excite will use commercially\nreasonable efforts to ensure that alternate software is available for use by\nIntuit so as not to impair in any material respect the functionality of the\nLicensed Software.\n\n         7. OWNERSHIP.\n\n                  7.1 OWNERSHIP OF FINANCIAL CONTENT. Intuit shall at all times\nhave full and exclusive right, title and ownership interest in and to the\nFinancial Content, including that developed with Excite's assistance pursuant to\nSection 5.1.1, and all of the Intellectual Property Rights therein.\n\n                  7.2 DATA OWNERSHIP. During and after the Term, all data\nconcerning users and their behavior (\"DATA\") relating to the use of the Excite\nProperties, will be owned by Excite. Data relating to the use of the\nJointly-Branded Pages or the Financial Portion of the Multi-Category\nPersonalized Pages will be jointly owned by both parties. Data relating to the\nuse of the Financial Channel (excluding the Jointly-Branded Pages and the\nFinancial Portion of the Multi-Category Personalized Pages) will be owned solely\nby Intuit. Within fifteen (15) days following the end of each month, the parties\nwill use reasonable commercial efforts to provide each other with usage reports\ncontaining the information described in Exhibit C (as may be modified from time\nto time by mutual agreement of the parties). Excite acknowledges that Intuit may\nnot be able to provide such data for some time after the execution of this\nAgreement. Each party will have the right to utilize Data for any customer which\nutilizes both parties' content and which is collected by the other party for the\npurposes of targeting advertising within its own sites and services; however,\nneither party will have the right to sell or license to third parties Data\njointly-owned or owned by the other party, without the prior written approval of\nthe other party. Each party's use and ownership of Data will be subject to \n\n\n\n                                       14\n\n\nany and all restrictions imposed by law, regulation or customer request,\nincluding without limitation restrictions on disclosure of insurance, investment\nor mortgage information.\n\n         8. CONFIDENTIALITY.\n\n                  8.1 PROTECTION OF CONFIDENTIAL INFORMATION. The parties\nrecognize that, in connection with the performance of this Agreement, each of\nthem may disclose to the other its Confidential Information. The party receiving\nany Confidential Information agrees to maintain the confidential status of such\nConfidential Information and not to use any such Confidential Information for\nany purpose other than the purpose for which it was originally disclosed to the\nreceiving Party, and not to disclose any of such Confidential Information to any\nthird party.\n\n                  8.2 PERMITTED DISCLOSURE. The parties acknowledge and agree\nthat each may disclose Confidential Information: (a) as required by law,\nprovided that each party will use commercially reasonable efforts to obtain\nconfidential treatment of any Confidential Information so disclosed; (b) to\ntheir respective directors, officers. employees, attorneys, accountants and\nother advisors, who are under an obligation of confidentiality, on a\n\"need-to-know\" basis; (c) to investors who are under an obligation of\nconfidentiality, on a \"need-to-know\" basis; or (d) in connection with disputes\nor litigation between the parties involving such Confidential Information; and\neach Party will use commercially reasonable efforts to limit disclosure to that\npurpose and to ensure maximum application of all appropriate judicial safeguards\n(such as placing documents under seal).\n\n                  8.3 APPLICABILITY. The foregoing obligations of\nconfidentiality shall apply to directors, officers, employees and\nrepresentatives of the parties and any other person to whom the Parties have\ndelivered copies of, or permitted access to, such Confidential Information in\nconnection with the performance of this Agreement. and each party shall advise\neach of the above of the obligations set forth in this Section 8.\n\n                  8.4 THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential\nInformation of a third party disclosed to either party shall be treated by such\nparty in accordance with the terms under which such third party Confidential\nInformation was disclosed; provided, that the party disclosing such third party\nConfidential Information shall first notify the other party that such\ninformation constitutes third party Confidential Information and the terms\napplicable to such third party Confidential Information; and provided further,\nthat either party may decline, in its sole discretion, to accept all or any\nportion of such third party Confidential Information.\n\n                  8.5 FUTURE BUSINESS ACTIVITIES. This Agreement shall not limit\neither party's present and future business activities of any nature, including\nbusiness activities which could be competitive with the other party, except to\nthe extent such activities would involve a breach of (a) the confidentiality\nrestrictions contained in this Section 8 or (b) any other express provision of\nthis Agreement. Nothing in this Agreement will be construed as a representation\nor agreement that the recipient of Confidential Information will not develop or\nhave developed for it products, concepts, systems or techniques contemplated by\nor embodied in such Confidential Information, provided that such recipient does\nnot violate any of its obligations under this Section 8 in connection with such\ndevelopment.\n\n\n\n                                       15\n\n\n                  8.6 NON-DISCLOSURE AGREEMENT. The confidentiality provisions\ncontained in this Section 6 supersede any prior Non-Disclosure Agreement between\nthe parties; provided, that no party shall be relieved of liability for any\nbreach of' such Non-Disclosure Agreement prior to the Effective Date.\n\n         9. REPRESENTATIONS AND WARRANTIES.\n\n                  9.1 AUTHORITY. Each party represents and warrants to the other\nparty that:\n\n                            9.1.1 CORPORATE AUTHORITY; NO CONFLICT; BINDING\nAGREEMENT. Such party has the full corporate right, power and authority to enter\ninto this Agreement and to perform the acts required of it hereunder; and the\nexecution of this Agreement by such party, and the performance by such party of\nits obligations and duties hereunder, do not and will not violate any agreement\nto which such party is a party or by which it is otherwise bound; and when\nexecuted and delivered by such party, this Agreement will constitute the legal,\nvalid and binding obligation of such party, enforceable against such party in\naccordance with its terms.\n\n                            9.1.2 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Such\nparty acknowledges that the other party makes no representations, warranties or\nagreements related to the subject matter hereof that are not expressly provided\nfor in this Agreement.\n\n                  9.2 NO INFRINGEMENT. Each party will use commercially\nreasonable efforts to ensure that the content which such party includes in or\nassociates with the Excite Properties or the Financial Channel (including,\nwithout limitation, the Excite Brand Features and the Intuit Brand Features) do\nnot and will not (i) infringe on or violate any Intellectual Property Right of\nany third party; or (ii) violate any applicable law, regulation or third party\nright when included in a manner consistent with this Agreement. In the event\nthat any party becomes aware of any such infringement (or alleged infringement)\nor violation, such party will promptly notify the other party and shall provide\nall information relating to such matters as such other party may reasonably\nrequest.\n\n         10. LIMITATION OF LIABILITY AND INDEMNITY.\n\n                  10.1 LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN THIS\nSECTION 10, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER\nPARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES\n(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),\nARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS\nOF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.\n\n                  10.2 NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN SECTION\n9 OF THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY\nDISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE\nPRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED\nWARRANTY OF \n\n\n\n                                       16\n\n\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND\nIMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.\n\n                  10.3 EXCITE OBLIGATION TO DEFEND. Subject to the limitations\nset forth below, Excite, at its own expense, shall defend, or at its option\nsettle, any claim, suit or proceeding against Intuit and pay any final judgment\nentered or settlement against Intuit in any such claim, suit or proceeding, to\nthe extent that such claim, suit or proceeding is based upon (a) the\ninfringement or misappropriation of any patent, copyright or trade secret by the\nLicensed Software or any other software or systems developed for Intuit pursuant\nto Section 5 or the use thereof or any claim that Excite does not have\nsufficient rights to license the Licensed Software or assign the rights such\nother software or systems hereunder; (b) the infringement of any trademark or\nservice mark rights by the Excite Brand Features; or (c) the infringement or\nmisappropriation of any patent, copyright or trade secret or the violation of\nany third party right or any, third party claim resulting form the operation or\nuse of any Excite Service or the dissemination of content (other than the\nFinancial Content) on any Excite Property. Excite shall have no obligation to\nIntuit pursuant to this Section 10.3 unless: (x) Intuit gives Excite prompt\nwritten notice of the claim, suit or proceeding and cooperates reasonably with\nExcite; (y) Excite is given the right to control and direct the investigation,\npreparation, defense and settlement of the claim, suit or proceeding; and (z)\nwith respect to a claim described in part (a), above, the claim, suit or\nproceeding is based on modifications to the Licensed Software or such other\nsoftware by Intuit, unless the claim, suit or proceeding would not have been\navoided by use of the unmodified Licensed Software or unmodified other software.\n\n                  10.4 INTUIT OBLIGATION TO DEFEND. Subject to the limitations\nset forth below, Intuit, at its own expense, shall defend, or at its option\nsettle, any claim, suit or proceeding against Excite and pay any final judgment\nentered or settlement against Excite in any such claim, suit or proceeding, to\nthe extent that such claim, suit or proceeding is based upon (a) the\ninfringement of any trademark or service mark rights by the Intuit Brand\nFeatures; or (b) the infringement or misappropriation of any patent. copyright\nor trade secret or the violation of any third party right or any third party\nclaim resulting from the dissemination or use of the Financial Content on any\nExcite Property. Intuit shall have no obligation to Excite pursuant to this\nSection 10.4 unless: (x) Excite gives Intuit prompt written notice of the claim.\nsuit or proceeding and cooperates reasonably with Intuit; and (y) Intuit is\ngiven the right to control and direct the investigation, preparation, defense\nand settlement of the claim, suit or proceeding.\n\n                  10.5 OPTIONS. If either party receives notice of an alleged\ninfringement, it shall have the right, at its sole option, (a) to obtain the\nright for the other party to continue use of the allegedly infringing software,\nsystem, content or Brand Feature, as applicable, or (b) to replace or modify the\nallegedly infringing software, system, content or Brand Feature, as applicable,\nso that it is no longer infringing but retains equivalent functionality and\nvalue, or (c) to remove the allegedly infringing content.\n\n                  10.6 EXCLUSIVE REMEDIES. THE RIGHTS AND REMEDIES SET FORTH IN\nTHIS SECTION 10 CONSTITUTE THE ENTIRE OBLIGATIONS AND THE \n\n\n\n                                       17\n\n\nEXCLUSIVE REMEDIES OF THE PARTIES CONCERNING INFRINGEMENT OF THE INTELLECTUAL\nPROPERTY RIGHTS OF THIRD PARTIES OR THIRD PARTY CLAIMS.\n\n         11. TERM AND TERMINATION.\n\n                  11.1 TERM. This Agreement shall commence on the Effective Date\nand shall remain in force for a term of seven (7) years from the Effective Date.\nunless terminated earlier under this Section 11. This Agreement may be renewed\nby mutual agreement of the parties.\n\n                  11.2 TERMINATION FOR FAILURE TO MAINTAIN INDUSTRY STANDARDS.\n\n                            11.2.1 BY EXCITE. This Agreement may be terminated\nby Excite upon ninety (90) days' written notice to Intuit if the Financial\nChannel is not among the top three (3) Financial Content Services as determined\nby industry standards for quality and breadth applicable to Financial Content\nServices, in any calendar quarter, unless the failure is cured within the notice\nperiod. Excite shall have no right to terminate based upon Intuit's provision\nof, or any failure of Intuit to provide, small business or tax content or\nfunctionality.\n\n                            11.2.2 BY INTUIT. This Agreement may be terminated\nby Intuit (a) upon ninety (90) days' written notice to Excite if Excite is not\namong the top three (3) of General Search Services as determined by industry\nstandards for quality, breadth and audience size applicable to General Search\nServices, in any calendar quarter, unless the failure is cured within the notice\nperiod.\n\n                  11.3 TERMINATION UPON EXITING MARKET. This Agreement may be\nterminated by Intuit upon ninety (90) days' written notice to Excite if it\ndecides to exit the business of providing Internet consumer financial content\nservices, and may be terminated by Excite upon ninety (90) days' written notice\nto Intuit if it decides to exit the business of providing general-purpose\nInternet search and navigation services.\n\n                  11.4 TERMINATION FOR BANKRUPTCY OR BREACH. Either party may\nterminate this Agreement upon giving written notice to the other party:\n\n                            11.4.1 in the event that the other party files a\npetition in bankruptcy, or in the event that all or part of the other party's\nassets are assigned to a trustee or receiver, or if an involuntary petition is\nfiled by a third party against the other party and the other party does not\nresolve such petition in its favor within sixty (60) days after the filing\nthereof; or\n\n                            11.4.2 in the event of a material breach of this\nAgreement by the other party, including a material breach of any Statement of\nWork prepared in accordance with Section 5.1.4, which is not cured within thirty\n(30) days after receipt of notice by the terminating party specifying such\nbreach, or in the event of a breach of a Statement of Work is not cured within\nthe applicable cure period set forth therein.\n\n\n\n                                       18\n\n\n                  11.5 SURVIVAL. Any expiration or termination of this Agreement\nshall not relieve any party from any obligations hereunder which have accrued on\nor before the effective date of such expiration or termination, nor affect the\nprovisions set forth in Sections 1, 2.6, 5.2, 6.1 (a), 6.4, 6.5, 7.1, 8, 10, 12,\nand 13, all of which are intended by the parties to survive such expiration or\ntermination.\n\n                  11.6 RETURN OF CONFIDENTIAL INFORMATION. Upon expiration or\ntermination of this Agreement, each party shall promptly return to the other all\nConfidential Information of the other party, including all of the physical\nembodiments thereof in its possession. including all copies thereof, and shall\ncease using the same, except to the extent their use is licensed otherwise\npermitted under this Agreement or a Statement of Work. Each party shall certify\nto the other party in writing compliance with this section upon the return of\nsuch materials.\n\n                  11.7 EXCLUSIVITY OF REMEDY. The right of either party to\nterminate this Agreement under Section 11.2 is the exclusive remedy of such\nparty for the conditions described therein. The right of any party to terminate\nthis Agreement under Section 11.4 is not an exclusive remedy, and any party\nshall be entitled, if the circumstances warrant and except as otherwise\nexpressly provided, alternatively or cumulatively, to damages for breach of this\nAgreement, to an order requiring performance of the obligations of this\nAgreement or to any other legally available remedy, subject in all cases to\nSection 12 below. Neither party shall have any liability to the other as a\nresult of such party's early termination of this Agreement in accordance with\nits terms.\n\n                  11.8 INJUNCTIVE RELIEF. The parties agree that any material\nbreach of the exclusivity or confidentiality provisions of this Agreement, or\nthe infringement of either party's intellectual property rights will cause\nirreparable injury and that injunctive relief in a court of competent\njurisdiction will be appropriate to prevent an initial breach or enjoin a\ncontinuing breach in addition to any other relief to which the aggrieved party\nmay be entitled.\n\n         12. ARBITRATION. If a party disputes (a) the calculation of Direct\nCosts or (b) termination of the Agreement pursuant to Section 11, such dispute\nwill, on the written request of one party as described below, be submitted and\nsettled by binding arbitration in accordance with the rules of the Judicial\nArbitration &amp; Mediation Services, Inc. (\"JAMS\") then in effect and will comply\nwith the California Arbitration Act (Sections 1280 through 1294.02 of the\nCalifornia Code of Civil Procedure) or its successor legislation, except as\nherein specifically stated. If JAMS does not then exist, arbitration shall be\nconducted under the Commercial Arbitration Rules of the American Arbitration\nAssociation then in effect. Judgment upon the award rendered by the arbitrator\nshall be final as provided herein and may be entered in any court having\njurisdiction thereof. The parties hereby submit to the in personam jurisdiction\nof the Superior Court of the State of California for the purpose of confirming\nany such award and entering judgment thereon. Notwithstanding anything to the\ncontrary that may now or hereafter be contained in the rules of JAMS:\n\n                  12.1 APPOINTMENT OF ARBITRATOR. The parties may agree on a\nretired judge from the JAMS panel. If they are unable to agree, JAMS will\nprovide a list of three available \n\n\n\n                                       19\n\n\njudges and each party may strike one. The remaining judge will serve as the\narbitrator. If both parties strike the same judge, JAMS shall assign one of the\nother two judges to the case.\n\n                  12.2 ARBITRATION DEMAND. The aggrieved party can demand\narbitration by sending a written notice of an intention to arbitrate by\nregistered or certified mail to all parties and to JAMS. The notice must contain\na description of the dispute, the amount involved and the remedy sought. If and\nwhen a demand for arbitration is made by either party, the parties agree to\nexecute a \"Submission Agreement\" provided by JAMS.\n\n                  12.3 COSTS. The costs of the arbitration, including attorneys'\nfees, will be paid by the losing party or parties, or will be allocated between\nthe parties in such proportions as the arbitrator decides.\n\n                  12.4 FINDINGS OF FACT AND CONCLUSIONS OF LAW. The arbitrator\nwill, upon the request of any party to such arbitration, issue a written opinion\nof his or her findings of fact and conclusions of law.\n\n                  12.5 RECONSIDERATION. Upon receipt by the requesting party of\nthe written opinion referred to in Section 12.4, such party will have the right\nwithin ten (10) days after such receipt to file with the arbitrator a motion to\nreconsider, and the arbitrator thereupon will reconsider the issues raised by\nthe motion and either confirm or change his or her decision. The costs of such a\nmotion for reconsideration and written opinion of the arbitrator, including\nattorneys' fees, will be paid by the moving party.\n\n                  12.6 LOCATION. The arbitration shall take place in Santa Clara\nCounty, California or such other place as the parties shall agree.\n\n         13. MISCELLANEOUS PROVISIONS.\n\n                  13.1 NOTICES. Any notice, demand, or request with respect to\nthis Agreement shall be in writing and shall be effective only if it is\ndelivered in the manner prescribed herein, addressed to the appropriate party at\nits address set forth on the signature page hereof and to the attention of the\nGeneral Counsel of such party. Such communications shall be effective (a) when\nthey are received by the addressee if personally delivered or transmitted by\nconfirmed fax or electronic mail; or (b) two (2) days after deposit in the U.S.\nmail, if sent by certified or registered mail or (c) one (1) day after deposit\nwith a nationally recognized overnight courier service. Any party may change its\naddress for such communications by giving notice to the other party in\nconformity with this section.\n\n                  13.2 ASSIGNMENT. No right may be assigned, and no duty may be\ndelegated, by either party under this Agreement except upon the written consent\nof the other party, and any attempted assignment and delegation without such\nconsent shall be void. Notwithstanding the foregoing, however, (a) either party\nshall be entitled to assign this Agreement, and all rights and obligations\nhereunder, to a successor to all or substantially all of such party's assets or\nvoting securities, whether by sale, merger, or otherwise, and (b) Intuit shall\nbe entitled to assign this Agreement, and all rights and obligations hereunder,\nto a successor to all or substantially\n\n\n\n                                       20\n\n\nall of the assets that comprise the Financial Channel, whether by sale, merger\nor otherwise; provided that either party indicating such assignment shall\nprovide the other party with at least thirty (30) days' prior written notice and\ncause such assignee to be bound by this Agreement. This Agreement shall be\nbinding upon and shall inure to the benefit of the parties hereto and their\nrespective representatives, administrators, successors and permitted assigns\nexcept as otherwise provided herein.\n\n                  13.3 RELATIONSHIP OF PARTIES. Each party is an independent\ncontractor of the other, and neither shall be deemed an employee, agent, partner\nor joint venturer of the other. Neither party shall make any commitment. by\ncontract or otherwise, binding upon the other nor represent that it has any\nauthority to do so.\n\n                  13.4 FORCE MAJEURE. Neither party shall be responsible or\nliable to the other party for nonperformance or delay in performance of any\nterms or conditions of this Agreement due to acts of God. acts of governments,\nwars, riots, or other causes beyond the reasonable control of the nonperforming\nor delayed party, provided, however, that nonperformance or delay in excess of\nninety (90) days shall constitute cause for termination of this Agreement by\neither party pursuant to Section 11.4.2.\n\n                  13.5 GOVERNING LAWS. The laws of the Sate of California\n(irrespective of its choice of law principles) shall govern the validity of this\nagreement, the construction of its terms, and the interpretation and enforcement\nof the rights and duties of the parties. The parties agree that the United\nNations Convention on Contracts for the International Sale of Goods shall not\napply to this agreement. The parties agree that any suit to enforce any\nprovision of this Agreement or arising out of or based upon this Agreement or\nthe business relationship between the parties shall be brought in the United\nStates District Court for the Northern District of California or the Superior or\nMunicipal Court in and for the County of Santa Clara, California. Each party\nagrees that such courts shall have exclusive in personam jurisdiction and venue\nwith respect to such party, and each party submits to the exclusive in personam\njurisdiction and venue of such courts.\n\n                  13.6 SEVERABILITY. If any provision of this Agreement is found\nto be invalid or unenforceable, the remainder of this Agreement shall be\ninterpreted so as best to reasonably effect the intent of the parties hereto.\n\n                  13.7 ENTIRE AGREEMENT. This Agreement and the exhibits hereto\nconstitute the entire understanding and agreement of the parties hereto with\nrespect to the subject matter hereof and supersede all prior and contemporaneous\nagreements, representations and understandings between the parties, including\nwithout limitation the Letter Agreement.\n\n                  13.8 AMENDMENT AND WAIVERS. Any term or provision of this\nAgreement may be amended, and the observance of any term of this Agreement may\nbe waived, only by a writing signed by the party to be bound.\n\n\n\n                                       21\n\n\n                  13.9 ATTORNEYS' FEES. The prevailing party in any action or\nproceeding to enforce or interpret any part of this Agreement shall be entitled\nto recover its reasonable attorneys' fees (including fees on any appeal).\n\n                  13.10 EXPENSES. Each party shall bear all expenses associated\nwith negotiation and preparation of this Agreement and the completion of the\ntransaction contemplated hereby; provided, that Excite shall pay the fees and\nout-of-pocket expenses of Intuit's outside legal counsel, incurred in connection\nherewith.\n\n                  13.11 ADVERTISING AND PUBLICLY. Intuit and Excite each hereby\nagree that any press, marketing or advertising releases, of either party that\nrefer to the other party or the other party's products or services shall not be\nreleased or disseminated without the prior written approval of the other party.\nRequests for such approval will not be reasonably withheld or delayed.\n\n                  IN WITNESS WHEREOF, the parties have executed this Agreement\nas of the date first above written.\n\nINTUIT INC.                                       EXCITE, INC.\n\nBy: \/s\/ WILLIAM HARRIS                            By: \/s\/ ROBERT C. HOOD\n   --------------------------                        ---------------------------\n\nName: William Harris                             Name: Robert C. Hood\n     ------------------------                          -------------------------\n\nTitle: EVP                                        Title: EVP-CFO\n      -----------------------                           ------------------------\n\nAddress for Notice:                               Address for Notice:\n2535 Garcia Street                                555 Broadway\nMountain View, CA 94041                           Redwood City, CA 94063\n                                                  Attn:   General Counsel\n\n\n\n                                       22\n\n\n                                    EXHIBIT A\n\n                             EXCITE BRAND GUIDELINES\n\n                                (to be provided)\n\n\n\n                                       23\n\n\n                                    EXHIBIT B\n\n                                   INTUIT INC.\n\n                                BRAND GUIDELINES\n\nThe following are the current usage guidelines for EXCITE, INC'S use of the\nQUICKEN(R), INTUIT(R), QUICKBOOKS(R) and TURBOTAX(R)] trademark(s)\/service\nmark(s).\n\n1. APPROPRIATE SYMBOLS AND LEGENDS\n\nThe QUICKEN [....] mark is a registered trademark and must appear with the \"(R)\"\nsymbol placed on the right \"shoulder\" of the mark (i.e., directly next to the\nmark in the upper right). Thus, the correct symbol placement is as follows:\nQUICKEN(R). The symbol must appear in every instance where the mark appears on\npackaging and product labeling. The symbol must appear in at least the first\niteration of the mark when it appears in any collateral materials (including\nadvertising, press releases, brochures, web pages, company reports and the like)\nbut may be omitted for convenience in subsequent iterations in the same text.\n\nIn addition to the above, the appropriate ownership legend must be included in\nthe \"legal notices\" section of any materials in which the QUICKEN mark is\ndisplayed, and must be placed on packaging and documentation for any products\nbearing the QUICKEN mark. This legend must read as follows: \"QUICKEN is a\ntrademark and service mark of Intuit Inc., registered in the United States and\nother countries, and used by ______________ under license.\" On packaging and in\nadvertising, promotional displays and web pages, the legend is typically placed\nat the bottom of the box, ad or layout, respectively. The legend may appear in\nsmall type, but must still be legible. In product documentation, press releases,\nbrochures, company reports and the like, it can be placed near other legal\nnotices for copyright, authorship and publication information (usually at the\nbeginning or end of such materials).\n\n2. PROPER CONTEXTUAL USE OF THE OUICKEN MARK\n\nWhen referencing __________________'s use of the QUICKEN mark, whether in the\nbody of documentation, press releases, brochures, web pages, etc., you should\nattempt to use the QUICKEN mark as an adjective in at least its first iteration\nin said materials (i.e., \"QUICKEN software\"). Subsequently, the generic word\nwhich the QUICKEN mark modifies may be omitted where the immediate context\nimplies that the word is intended, such as during repetitive mentions of the\nsoftware within a single paragraph or section. For example:\n\n        First iteration:  We recommend using QUICKEN(R) personal finance\n                          software.\n\n        Subsequent uses:  QUICKEN allows users to better organize their\n                          financial lives.\n\n3. LOGO DESIGN USAGE\n\n_______________________ may display the QUICKEN Logo Design (see attached\nDrawing A), just as it may display the wordmark, in accordance with the\nguidelines set forth herein and \n\n\n\n                                       24\n\n\npursuant to all limitations set forth in the _________________________ [License]\nAgreement. However, INTUIT REQUIRES THAT ____________ OBTAIN ONLY ORIGINAL\nDIGITAL OR CAMERA-READY ARTWORK DIRECTLY FROM INTUIT. No resampling or other\nattempted duplication is allowed and no alterations, modifications, cropping or\nadditions to the logo are permitted. In addition, any display created using the\nLogo Design must show the Logo by itself --- it may not be touching any other\nitem in a layout. Please contact Intuit to obtain a digital GIF file ready for\nimplementation or other camera-ready copy.\n\n4. RESTRICTIONS\n\nThe license to use the QUICKEN mark is a non-exclusive, non-transferable,\nnon-assignable license that extends only to the United States and only for the\nterm of the ____________________________ [License] Agreement. Licensee may not\nmake any specific representations concerning the functionality or quality of any\nIntuit products or services, nor that Intuit endorses the products and\/or\nservices offered by (Licensee), nor that Intuit recommends such products or\nservices over those of any other provider.\n\nNothing in the _______________________ [License] Agreement or this guideline\ndocument gives (Licensee) any right, title or interest in the QUICKEN mark, the\nIntuit mark, or any other Intuit-owned mark. (Licensee) acknowledges Intuit's\nownership of the QUICKEN mark, and any use by (Licensee) of the QUICKEN mark\nwill inure to the sole benefit of Intuit. (Licensee) also acknowledges and\nagrees not attack the ownership of, nor to register, or attempt to register, any\nof the above-mentioned marks, nor to use or register any marks that would cause\nconfusion, or be likely to cause confusion, with the QUICKEN mark. The license\nto use the QUICKEN mark is subject to approval by Intuit of (Licensee)'s use\nprior to any product or other release or publication, which can be withheld, and\nits strict adherence to the guidelines contained herein. All rights not\nexpressly granted in the _____________ [License] Agreement are reserved by\nIntuit. In any instance where this guideline document is found to conflict with\nthe requirements and restrictions set forth in the ______________ [License]\nAgreement, the [License] Agreement shall rule.\n\n\n\n                                       25\n\n\n                                    EXHIBIT C\n\n                                  USAGE REPORTS\n\nExcite will provide to Intuit:\n\n         (a)      Data relating to the use of the Financial Content in the\n                  Excite Properties and the Jointly Branded Pages such that\n                  Intuit will have access to all Data that is available to\n                  Excite with respect to such Financial Content, and\n\n         (b)      Such other Data as may be reasonably requested by Intuit,\n                  including, without limitation, Data regarding traffic from the\n                  Excite Properties to Financial Content Services and Data\n                  regarding the percentage of the total traffic on the Excite\n                  Properties that \"clicks through\" to the Financial Channel\n                  provided such data is available.\n\nIntuit will provide to Excite:\n\n         (a)      Data relating to the use of the Financial Content located at\n                  the Intuit URLs and the Jointly Branded Pages located at the\n                  Intuit URLs such that Excite will have access to all Data that\n                  is available to Intuit with respect to such Financial Content,\n                  and\n\n         (b)      Such other Data as may be reasonably requested by Excite,\n                  including, without limitation. Data regarding traffic from\n                  Intuit's URLs to Financial Content Services, Data regarding\n                  the percentage of the total traffic on Intuit's URLs that\n                  \"clicks through\" to the Financial Channel, the total number of\n                  page views per day of Intuit's URLs, the average number of\n                  page views per user of the Financial Content Services and the\n                  number of unique users of the Financial Content Services\n                  provided such data is available.\n\n\n\n                                       26\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7487,7908],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9617],"class_list":["post-42393","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-excite-inc","corporate_contracts_companies-intuit-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42393","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42393"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42393"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42393"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42393"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}