EXHIBIT 2.2
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LICENSE
AND
DISTRIBUTION AGREEMENT
THIS LICENSE AND DISTRIBUTION AGREEMENT (the "Agreement") is entered into
as of January 24, 2001 (the "Effective Date") by and between InsWeb Corporation,
a Delaware corporation ("InsWeb"), and Intuit Inc., a Delaware corporation
("Intuit").
WHEREAS, InsWeb is a premier provider of online insurance services
including the operation of a marketplace at InsWeb's Internet Website where
consumers can comparison shop for insurance products, which site is operated by
InsWeb's wholly owned subsidiary, InsWeb Insurance Services, Inc. ("InsWeb
Sub");
WHEREAS, Intuit promotes or offers a variety of online financial services
and content to consumers and others at Intuit's Internet Website and in
connection with desktop software products;
WHEREAS, certain of Intuit's services include access to an online insurance
shopping and purchasing service operated by Intuit's wholly owned subsidiary,
Intuit Insurance Services, Inc. ("IIS"), which are similar to the insurance
services available through InsWeb;
WHEREAS, Intuit and IIS have agreed to sell and InsWeb has agreed to buy
certain designated assets relating to IIS' insurance services (the
"Acquisition"); and
WHEREAS, after the Acquisition, Intuit desires to offer InsWeb's insurance
services to consumers and, as an essential inducement to Intuit's agreement to
enter into this Agreement, the parties have agreed that InsWeb shall distribute
its premier online insurance services as further described herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises in
this Agreement, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions:
1.1 As used herein, the following terms and phrases are defined as
follows:
(a) "Additional Products" shall mean Consumer Insurance Products
that are not InsWeb-Offered Products.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
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(b) "Affiliate" shall have the meaning given it in the Asset
Purchase Agreement.
(c) "Aggregator" shall mean a non-risk bearing entity that
displays quotes from multiple insurers using information collected from a single
quote questionnaire.
(d) "Asset Purchase Agreement" shall mean that certain Asset
Purchase Agreement by and between IIS, Intuit and InsWeb dated on or about
November 25, 2000 whereby, among other terms, Intuit and IIS sold and InsWeb
purchased certain designated assets of Intuit or IIS relating to insurance
services and Intuit and IIS assigned and InsWeb assumed certain liabilities
related to the transferred assets.
(e) "Business Insurance Product(s)" shall mean any Insurance
Products that are not Consumer Insurance Products.
(f) "Change of Control" of a Person means (i) any merger or
consolidation of such Person with or into any other Person or any stock purchase
or sale, reorganization recapitalization or other transaction, in each case, in
one transaction or a series of related transactions, if, immediately after
giving effect to such transaction(s), any "person" or "group" (as such terms are
used for purposes of Section 13(d) and 14(d) of the Securities Exchange Act,
whether or not applicable), is or becomes the "beneficial owner," directly or
indirectly, of more than 50% of the total voting power in the aggregate normally
entitled to vote in the election of directors, managers, or trustees, as
applicable, of the transferee(s) or surviving entity or entities or (ii) any
sale, transfer, license, lease or other conveyance, whether direct or indirect,
of all or substantially all of the assets of such Person, on a consolidated
basis, in one transaction or a series of related transactions.
(g) "Clickthrough(s)" shall mean each individual occasion that
an Intuit-Originated User selects a link displayed within any Intuit source
(e.g., any of the discrete sources in the Quicken Network) or any Intuit Partner
Website, and is transferred directly or indirectly (e.g., via the Co-Branded
Insurance Center) to the InsWeb Website.
(h) "Closing Date" shall have the meaning given it in the Asset
Purchase Agreement.
(i) "Co-Branded Insurance Center" shall mean the transition
page(s) developed and hosted by Intuit at WWW.QUICKEN.COM (or any future or
replacement Uniform Resource Locator (URL) designated by Intuit) and displaying
the licensed marks of Intuit and InsWeb, which will provide links from the
Intuit Website to the agreed upon pages on the InsWeb Website.
(j) "Confidential Information" shall mean any information or
data disclosed by either party to the other party, either directly or
indirectly, in writing, orally or by inspection of tangible objects (including
without limitation business plans, financial information, and software) which is
designated as "Confidential," "Proprietary" or some similar designation.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
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COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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(k) "Consumer Insurance Product(s)" shall have the meaning given
it in the Asset Purchase Agreement.
(l) "Distribution Agreement" shall mean any agreement identified
in Section 1.1(a)(ii) of the Disclosure Schedule to the Asset Purchase Agreement
that, in connection with the Acquisition, is assigned to and assumed by InsWeb
(including those situations where the applicable agreement has been terminated
and a new agreement entered into between the Counterparty (as defined in the
Asset Purchase Agreement) and InsWeb pursuant to which InsWeb shall provide such
Counterparty with insurance-related online services) or, alternatively, the
performance of Intuit's insurance-related online services thereunder have been
delegated or subcontracted to InsWeb for performance or InsWeb is performing,
providing or managing such online insurance services in some other manner as
Intuit and InsWeb may agree.
(m) [*****]
(n) "Intuit Consumer Software" shall mean Intuit's Quicken Basic
and Deluxe personal finance software and TurboTax Basic and Deluxe tax
preparation software products to the extent that Intuit determines, in its sole
discretion, to promote Consumer Insurance Products in such products; provided,
however that Intuit can terminate or modify such products in its sole discretion
during the term of this Agreement.
(o) "Intuit-Originated User" shall mean any person identified as
originating from an Intuit source or Intuit Partner source, including the Intuit
Website, the Quicken Network, the Co-Branded Insurance Center or an Intuit
Partner Website.
(p) "Intuit Partner" shall mean any Insurance Partner and/or any
Multi-Product Partner.
(q) "Intuit Partner Website" shall mean an Intuit Partner's
Internet Website.
(r) "Intuit Website" shall mean the following URLs: Quicken.com,
QuickenInsurance.com and InsureMarket.com.
(s) "Insurance Partner" shall mean any company that is a party
to a Distribution Agreement to promote only Insurance Products, or a successor
thereto.
(t) "Insurance Product(s)" shall have the meaning given it in
the Asset Purchase Agreement.
(u) "InsWeb-Offered Products" shall mean those Consumer
Insurance Products specified in Exhibit A attached to this Agreement and
available on the InsWeb Website on the Closing Date.
(v) "InsWeb Website" shall mean the InsWeb Internet Website
located at WWW.INSWEB.COM that provides an insurance marketplace for consumers,
including
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COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
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COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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insurance promotion, quotation, information, application, payment, policy
production and other insurance-related services and related insurance agency and
brokerage services.
(w) "Launch Date" shall be the date on which the initial version
of the Co-Branded Insurance Center is first made available by Intuit for public
access on the Intuit Website pursuant to and in accordance with Section 4.1(a).
(x) "Multi-Product Partner" shall mean any company that is a
party to a Distribution Agreement to promote Insurance Products and other
products and services (e.g., tax, mortgage, investment, etc.), or a successor
thereto.
(y) "Non-Insurance Product" shall mean any product or service
that is not an Insurance Product.
(z) "Partner Applications" shall mean the applicable page(s) on
the Partner Website or on the InsWeb Website that provide access into the InsWeb
Website, which page(s) may or may not be co-branded with the licensed marks of
InsWeb and the applicable Intuit Partner.
(aa) "Person" means any individual, partnership, limited
liability company, firm, corporation, company, association, trust,
unincorporated organization or other entity.
(bb) "Promotions" shall mean banners, buttons, icons, branded
text links, keywords or similar advertising functionality offered by a party.
(cc) "Quicken Network" shall mean the Websites located at
Quicken.com, QuickenInsurance.com and InsureMarket.com, and the Intuit Consumer
Software, but not including any of Intuit's business or professional advisor
Websites, products, channels or areas (e.g., in the small business area within
the Quicken.com Website).
(dd) "Quote Request Form" shall mean the insurance questionnaire
presented to consumers on the InsWeb Website for the purpose of collecting
information and generating and displaying comparative insurance quotes.
(ee) "Request for Buy Online" and "RFB" shall mean when an
Intuit-Originated User who has completed a Quote Request Form requests an online
insurance quote and applies for coverage online.
(ff) "Request for Coverage Agency" and "RFCA" shall mean when an
Intuit-Originated User who has completed a Quote Request Form requests an
insurance quote from an InsWeb operated insurance agency.
(gg) "Request for Coverage Non-Agency" and "RFC" shall mean when
an Intuit-Originated user who has completed a Quote Request Form requests
coverage from a carrier not represented in the InsWeb operated agency.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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4
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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(hh) "Request for Quote" and "RFQ" shall mean when an
Intuit-Originated User who has completed a Quote Request Form requests an
insurance quote by email.
(ii) "Request Type" shall mean any of the RFQ, RFC, RFCA or RFB.
(jj) "Substantive Insurance Content Area" shall mean that portion
of the Co-Branded Insurance Center that contains insurance-related FAQ's,
glossaries, articles, or links to insurance quotation or transaction services as
compared to the general promotional, site policy or navigation areas.
(kk) "Unique Visits" shall mean the number of different people
visiting the InsWeb Website in a 30-day period.
(ll) [*****]
(mm) "Web" or "Website" refer to the World Wide Web of the
Internet or to content located at specified URLs or domains on the Internet.
1.2 Other capitalized terms or phrases shall have the meanings
ascribed to them elsewhere in this Agreement.
2. LICENSE GRANTED BY INTUIT.
2.1 LICENSE. Subject to the terms of this Agreement, Intuit grants to
InsWeb a non-exclusive, nontransferable, non-assignable (except as permitted in
this Agreement), without right to sublicense, royalty-free license to link to
the Intuit Website in accordance with the specifications set forth in this
Agreement.
2.2 TRADE MARKS. Subject to the terms of this Agreement, Intuit
grants to InsWeb a non- exclusive, nontransferable, non-assignable (except as
expressly permitted in this Agreement), royalty-free (other than those amounts
otherwise payable pursuant to this Agreement) license, without right to
sublicense, to use and display, during the term of this Agreement, the name,
logo and certain other trademarks, trade names, logos, service marks, trade
styles, trade dress and other proprietary identifying marks listed in Exhibit B
(the "Intuit Licensed Marks"), solely for purposes of InsWeb's performance of
its obligations under this Agreement. InsWeb agrees that the Intuit Licensed
Marks are and will remain the sole property of Intuit and agrees not to contest
the ownership of such Intuit Licensed Marks, nor to misappropriate such Intuit
Licensed Marks for its own use. Intuit reserves all rights to control the use of
the Intuit Licensed Marks, and InsWeb shall not use, change, or modify the
Intuit Licensed Marks in any manner without prior written authorization from
Intuit. InsWeb shall (1) cause the appropriate designations "TM" or "SM" or the
registration symbol "(R)" to be placed adjacent to the Intuit Licensed Marks in
connection with each use or display thereof and to indicate such additional
information as Intuit shall reasonably specify from time to time concerning the
use of the Intuit Licensed Marks, and (2) comply with all applicable laws
pertaining to trademarks in force. All goodwill arising out of InsWeb's use of
the Intuit Licensed Marks shall accrue only to Intuit.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
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2.3 RESERVATION OF RIGHTS. Except as expressly granted in this
Agreement, InsWeb shall have no other rights of any kind in or to the Intuit
Licensed Marks or the Intuit Website. Under no circumstances will anything in
this Agreement be construed as granting, by implication, estoppel or otherwise,
a license to any of Intuit's intellectual property or proprietary technology
other than the use of the Intuit Licensed Marks in accordance with the terms of
this Agreement. InsWeb acknowledges that the Intuit Website is the sole property
of Intuit and this Agreement only grants InsWeb a limited right to link to the
Intuit Website under the terms and conditions of this Agreement.
3. LICENSE GRANTED BY INSWEB.
-------------------------
3.1 LICENSE. Subject to the terms of this Agreement, InsWeb grants to
Intuit a non-exclusive, nontransferable, non-assignable (except as permitted in
this Agreement), with the limited right to sublicense to its Affiliates,
royalty-free license to link to the InsWeb Website in accordance with the
specifications set forth in this Agreement.
3.2 TRADE MARKS. Subject to the terms of this Agreement, InsWeb
grants to Intuit a non-exclusive, nontransferable, non-assignable (except as
expressly permitted in this Agreement), royalty-free right and license, without
right to sublicense, to use and display, during the term of this Agreement, the
name, logo and certain other trademarks, trade names, logos, service marks,
trade styles, trade dress and other proprietary identifying marks, whether or
not registered, of InsWeb (the "InsWeb Licensed Marks"), solely for purposes of
Intuit's performance of its obligations under this Agreement. Intuit agrees that
the InsWeb Licensed Marks are and will remain the sole property of InsWeb and
agrees not to contest the ownership of such InsWeb Licensed Marks, nor to
misappropriate such InsWeb Licensed Marks for its own use. InsWeb reserves all
rights to control the use of the InsWeb Licensed Marks, and Intuit shall not
use, change, or modify the InsWeb Licensed Marks in any manner without prior
written authorization from InsWeb. Intuit shall (1) cause the appropriate
designation "TM" or the registration symbol "(R)" to be placed adjacent to the
InsWeb Licensed Marks in connection with each use or display thereof and to
indicate such additional information as InsWeb shall reasonably specify from
time to time concerning the use of the InsWeb Licensed Marks, and (2) comply
with all applicable laws pertaining to trademarks in force. All goodwill arising
out of Intuit's use of the InsWeb Licensed Marks shall accrue only to InsWeb.
3.3 RESERVATION OF RIGHTS. Except as expressly granted in this
Agreement, Intuit shall have no other rights of any kind in or to the InsWeb
Licensed Marks and the InsWeb Website. This Agreement shall not operate to grant
to Intuit any rights to the existing or future business relationships of InsWeb,
except as may be mutually agreed to by the parties from time to time. Under no
circumstances will anything in this Agreement be construed as granting, by
implication, estoppel or otherwise, a license to any of InsWeb's intellectual
property or proprietary technology other than the use of the InsWeb Licensed
Marks in accordance with the terms of this Agreement. Intuit acknowledges that
the InsWeb Licensed Marks are the sole property of InsWeb, and this Agreement
only grants Intuit a limited right to use the InsWeb Licensed Marks under the
terms and conditions of this Agreement.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
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COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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4.1 CO-BRANDED INSURANCE CENTER.
(a) DESIGN AND MARKETING OF CO-BRANDED INSURANCE CENTER. The
Co-Branded Insurance Center shall permit Intuit-Originated Users to link to
InsWeb-Offered Products on the InsWeb Website. Subject to its receipt of the
necessary URLs from InsWeb promptly after the date of the Asset Purchase
Agreement, Intuit shall use commercially reasonable efforts to develop and
provide public access to a Co-Branded Insurance Center on the Intuit Website (i)
within 45 days from the date of the Asset Purchase Agreement or (ii) by the
Closing Date (whichever is later), which initial center shall not materially
differ from the look and feel of the page that exists today at
HTTP://WWW.QUICKEN.COM/INSURANCE/. Upon the Closing Date, InsWeb shall provide
Intuit with InsWeb's recommended changes to the design of the Co-Branded
Insurance Center. Within 90 days after the Closing Date, Intuit shall use
commercially reasonable efforts to develop and provide public access to an
updated Co-Branded Insurance Center on the Intuit Website that reflects the
mutually agreed changes of the parties.
(b) OPERATION OF THE CO-BRANDED INSURANCE CENTER. InsWeb shall
provide substantive insurance content for the Co-Branded Insurance Center,
provided that the display or promotion of Additional Products shall be made
pursuant to Section 4.9(b)). Subject to the rules set forth in subsection (c) of
this Section 4.1, Intuit shall have control over the continuing design and
operation of the Co-Branded Insurance Center, including without limitation its
"look and feel," the structure of any pages in such area, and any features,
requirements and attributes such as the display, appearance and placement of the
parties' respective names and/or brands and links. InsWeb agrees that the
Co-Branded Insurance Center may, at Intuit's election, be hosted and served by a
third party authorized by Intuit. Intuit shall sell and serve all advertising
and Promotions on the Intuit Website, including the Co-Branded Insurance Center,
and shall retain all revenue generated from such advertising and Promotions.
(c) RULES GOVERNING THE "LOOK AND FEEL" OF THE CO-BRANDED
INSURANCE CENTER. Intuit will notify InsWeb before making any material changes
to the "look and feel" of the Substantive Insurance Content Area on the
Co-Branded Insurance Center, and InsWeb shall have the opportunity to provide
Intuit with comments regarding such changes within ten days after its receipt of
Intuit's notification. In any event, the Co-Branded Insurance Center shall
conform to the following rules: 1) subject to Intuit's right to promote
Additional Products in accordance with Section 4.9(b), the Co-Branded Insurance
Center shall not display links to any Aggregator of Consumer Insurance Products
other than InsWeb; 2) subject to Intuit's right to promote Additional Products
in accordance with Section 4.9(b), the Co-Branded Insurance Center shall not
display links to any page of any person other than InsWeb that collects more
than two different pieces of information from consumers for the purpose of
providing insurance quotation services for Consumer Insurance Products; 3) the
Substantive Insurance Content Area shall occupy not less than 50% (measured by
pixels) of the Co-Branded Insurance Center, and at least 50% of the Substantive
Insurance Content Area shall be in the top half of such page; 4) the Substantive
Insurance Content Area shall include the notation "Provided by InsWeb" or a
substantially similar phrase of not less than 120 by 60 pixels; 5) not less than
50% of the Substantive Insurance Content Area (the "shopping area") shall
include links (and related promotional content) to Consumer Insurance Product
shopping functionality, provided that links to the Consumer Insurance Products
on the InsWeb Website shall constitute at least
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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70% of this area; and 6) Non-InsWeb-provided links (and related promotional
content) related to insurance shopping functionality shall not be the most
prominent (e.g. the highest in any list, the largest font) link (and related
promotional content) in the shopping area.
(d) MARKETING OF THE CO-BRANDED INSURANCE CENTER.
(i) Intuit will promote Clickthroughs to the Co-Branded
Insurance Center by providing the following Impressions (as defined below): (a)
displaying a permanent link within the navigation area on the Intuit Website
home page to the Co-Branded Insurance Center that will be no less prominent than
at least one of the Selected Cross-Sell Products displayed on such page; and (b)
displaying other promotions in the Intuit Website that link to the Co-Branded
Insurance Center including, but not limited to, banners, text links, earrings,
and buttons (collectively, "Impressions").
(ii) For each successive six calendar month period after the
Launch Date during the term, Intuit will allocate Impressions linking to the
Co-Branded Insurance Center based on the allocation formula illustrated as
follows (numbers are examples only):
Total number of Impressions for all Cross-Sell Products (defined below)
(4/00 - 9/00):
[*****]
Total number of Impressions for the Selected Cross-Sell Products (defined
below) (4/00 - 9/00):
[*****]
Average number of Impressions for the Selected Cross-Sell Products: [*****]
Target Percentage:
[*****]
Number Impressions allocated for Cross-Sell Products for following six
month period (10/00 - 3/01):
[*****]
Number Impressions allocated for Co-Branded Insurance Center ("Targeted
Impressions") (10/00 - 3/01): [*****]
(iii) The "Selected Cross-Sell Products" shall be five
Cross-Sell Products designated by Intuit for each six month period, and shall
include at least two of the top five most promoted (as measured by Impressions)
Cross-Sell Products for the previous six month period. "Cross-Sell Products"
means those Intuit products or services promoted through the Intuit Website,
which currently include, but are not limited to, QuickenQuotesLive, Quicken 401k
Advisor, QuickenStore, QuickenLoans, Bill Payment & Presentment, MyAccounts,
MyFinances, and TurboTax but, for the purposes of this Agreement, shall not
include Insurance. As of the Launch Date, the Selected Cross-Sell Products shall
be QuickenQuotesLive, Quicken 401k Advisor, QuickenStore, QuickenLoans and Bill
Payment & Presentment.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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8
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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(iv) Intuit will provide InsWeb the following information
for each three calendar month period commencing after the Launch Date within 30
days following the end of such three calendar month period: (a) total number of
Impressions for all Cross-Sell Products within the Intuit Website; (b) total
number of Impressions for Selected Cross-Sell Products within the Intuit
Website; (c) the average number of Impressions for the Selected Cross-Sell
Products for such three calendar month period (i.e., subitem (b) divided by
five); and, (d) the total number of Impressions actually delivered that link to
the Co-Branded Insurance Center.
(v) If the number of Impressions linking to the Co-Branded
Insurance Center actually delivered by Intuit in any specified six month period
(i.e., which period shall not be "rolling" six month period based on each
successive three month period) is less than the number of Targeted Impressions
for the Co-Branded Insurance Center for such period by more than five percent
(5%), then Intuit will increase the following six month period's Co-Branded
Insurance Center Targeted Impressions by the amount of such shortfall (see below
illustration). Additionally, if the shortfall at the end of any specified six
month period, including any portion of a shortfall carried over from prior
periods, exceeds twenty percent (20%) of the number of Targeted Impressions,
then InsWeb shall be permitted to withhold twenty percent of the following
quarter's Quarterly Payment (defined in Section 5 below) until such time as the
shortfall is made up, at which time the withheld payment shall be immediately
due and payable. Additionally, if the cumulative shortfall at the end of any two
consecutive specified six month periods, including any portion of a shortfall
carried over from prior periods, exceeds fifty percent (50%) of the number of
Targeted Impressions for such twelve month period, then Intuit shall be deemed
to be in material breach of this Agreement with respect to InsWeb's right to
terminate this Agreement pursuant to Section 8.2 herein. By way of illustration
only:
Assume the Targeted Impressions for the period of 10/00 through 3/01 were
[*****]
Assume the actual number of Impressions linking to the Co-Branded Insurance
Center for the period of 10/00 through 3/01 is [*****]
Assume that the number of Targeted Impressions for the period of 4/01
through 9/01 would have been set at [*****]
Result: The Targeted Impressions for the period of 4/01 through 9/01 would
be (add shortfall to number of Targeted Impressions otherwise allocated for
specified period): [*****]. Additionally, because the shortfall in Targeted
Impressions is greater than [*****] of the Targeted Impressions for the
relevant period (i.e., [*****]), then InsWeb would be entitled to withhold
[*****] of the next payable Quarterly Payment.
4.2 SET-UP AND MAINTENANCE OF LINKS AND WEBSITES. The parties agree
to establish and maintain links between the Co-Branded Insurance Center and the
InsWeb Website, and to provide information regarding the specifications of their
respective sites and other technical assistance necessary to establish and
maintain such links. The landing pages on the InsWeb Website linked from the
Co-Branded Insurance Center and from Intuit Partners shall not have any
promotions for Non-Insurance Products or Business Insurance Products thereon.
Maintenance of links includes, but is not limited to, periodic testing of the
links to ensure that
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
9
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
they are functioning properly and advance written notice to the other party of
any changes in any URLs or other information needed for continuous linking.
Intuit will ensure that WWW.QUICKEN.COM and WWW.QUICKEN.COM/INSURANCE are, and
InsWeb will ensure that the InsWeb Website is, operational during the term of
this Agreement at least 99% of each month (outside of those periods set aside
for a reasonable amount of routine maintenance). In that regard, the InsWeb
Website may be disabled for up to 6 hours per month for regularly scheduled
maintenance provided that the InsWeb Website shall not be disabled for
maintenance between the hours of 5 a.m. Pacific Time and 11 p.m. Pacific Time
and, further provided, that InsWeb shall provide Intuit with reasonable notice
before all material, unscheduled maintenance downtime that will occur outside of
such time period.
4.3 INSWEB WEBSITE. (i) The parties acknowledge that InsWeb shall be
responsible for performing all insurance-related activities that may be offered
in connection with the operation of the InsWeb Website including: obtaining and
processing policy requests and applications; obtaining, receiving and handling
premium deposits and payments; preparing, obtaining, processing and timely
providing customer guides, acknowledgements and notifications (e.g., relating to
declination of mandatory coverages, replacements, illustrations, credit
reporting, information practices, etc.); underwriting, rating and delivering
insurance policies; providing policyholder services; and making coverage and
suitability determinations. (ii) InsWeb shall operate a center providing
customer service functions (e.g. call, chat, and email) involving operations of
the InsWeb Website, including responding to questions concerning InsWeb Website
content and functionality and providing Consumer Insurance Product information,
advice and fulfillment services. InsWeb's center staffing, hours and resources
shall be reasonable based on consumer volumes and other relevant factors,
provided that the center hours will be at least equal to the normal business
hours of InsWeb (currently 8 a.m. Pacific Time to 5 p.m. Pacific Time). (iii)
InsWeb shall work diligently to develop and launch Partner Applications for all
Intuit Partners by the Closing Date. In the event that the Distribution
Agreement between the Intuit Partner and Intuit contains co-branding
requirements, InsWeb agrees to use commercially reasonable efforts to develop
Partner Applications conforming to such co-branding requirements by the Closing
Date (subject to the cooperation of the Intuit Partner). Intuit will provide
reasonable assistance to InsWeb, including obtaining the cooperation of the
Intuit Partners to facilitate InsWeb's development of Partner Applications for
Intuit Partners. (iv) InsWeb may delegate the performance of certain
insurance-related performance obligations required to be performed by a licensed
insurance agency or broker to InsWeb Sub or such other insurance agencies or
brokers as may be required (and, to the extent of such delegation, references
herein to InsWeb shall be also deemed to include or refer to InsWeb Sub or such
other agencies or brokers), provided that InsWeb is responsible for supervising,
managing and controlling the performance of InsWeb Sub and such other agencies
and brokers.
4.4 SUB-CONTRACTING. Subject to Intuit's prior approval, which
approval shall not be unreasonably withheld, InsWeb shall have the right to make
available the InsWeb-Offered Products through sub-contracts with third-parties.
Approval of a subcontractor by Intuit shall be deemed approval of the
subcontractor's use of the Intuit Licensed Marks to the same extent and subject
to the same restrictions as contained herein for InsWeb. With respect to all
such subcontracts, InsWeb shall remain responsible and liable for full
performance of all obligations and duties by its subcontractors. As of the
Effective Date, Intuit hereby agrees that InsWeb shall
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
10
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
be permitted to subcontract (i) health insurance products and services to
eHealthInsurance for the term of InsWeb's existing agreement with
eHealthInsurance and any renewals thereof; (ii) motorcycle insurance products to
Progressive Insurance Company for the term of InsWeb's existing agreement with
Progressive Insurance Company and any renewals thereof; and (iii) pet insurance
products to Premier Pet Insurance Company for the term of InsWeb's existing
agreement with Premier Pet Insurance Company and any renewals thereof.
4.5 APPROVAL OF INSURANCE CARRIERS. Intuit shall have the right to
disapprove any insurance carrier offering insurance quotations or products to
Intuit-Originated Users through the InsWeb Website, provided that Intuit shall
not be allowed to disapprove more than two insurance carriers during any twelve
month period; and further provided that InsWeb will use commercially reasonable
efforts to remove any such carriers from the InsWeb Website displayed to
Intuit-Originated Users within ninety days of Intuit's request.
4.6 PERFORMANCE STANDARD. If the InsWeb Website fails to meet any
three of the five Performance Standards described in this Section 4.6 and such
failure continues for a period of sixty (60) days, then Intuit will have the
right to terminate this Agreement. If the InsWeb Website fails to meet any two
of the five Performance Standards described in this Section 4.6 and such failure
continues for a period of sixty (60) days, then Intuit will have the right to
terminate the exclusivity rights of InsWeb set forth in Section 4.9(a). During
the term of this Agreement, InsWeb shall achieve each of the following
"Performance Standards" (and InsWeb shall provide Intuit with monthly reports
relating to its satisfaction of such standards): (i) for the first six full
calendar months following the Launch Date, the InsWeb Website shall display an
average of 1.5 or more real-time insurance quotations per quote session from,
and provide the ability to effectively close policy sales (whether through
InsWeb, direct writing insurers or appointed agents of agency-based insurers)
for, A.M. Best "A-rated" automobile insurance companies in those states that
represent at least eighty percent (80%) of the U.S. population; and, after such
first six full month period, increase the average number of real time quotations
per quote session according to the following schedule:
- 2.0 or more real-time insurance quotations per quote session during
each of months 7 through 12.
- 2.5 or more real-time insurance quotations per quote session during
each of months 13 through 18.
- 3.0 or more real-time insurance quotations per quote session during
each of months 19 through 60.
(companies disapproved by Intuit pursuant to Section 4.5 shall be counted in
full when calculating the foregoing); (ii) the InsWeb Website shall display
real-time insurance quotations from, and provide the ability to effectively
close policy sales (whether through InsWeb, direct writing insurers or appointed
agents of agency-based insurers), for automobile insurance and term life
insurance in states that, during the first Payment Year (defined in Section 5(a)
below) of the Agreement, represent at least sixty percent (60%) of the U.S.
population and, during the rest of the term of the Agreement, represent at least
eighty percent (80%) of the U.S. population; (iii) the InsWeb Website shall
maintain a #1, #2, or #3 ranking in the aggregator category as defined
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
11
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
by Gomez Advisors (a third-party rating service), or such other rating service
mutually agreed to by the parties during the term of the Agreement; (iv) InsWeb
shall achieve an average call pickup time in its customer service operation of
less than 36 seconds; (v) InsWeb shall demonstrate that the InsWeb Site's
average traffic volumes, for the immediately preceding three months, would make
it the #1 or #2 insurance aggregator site for Consumer Insurance Products if
measured against the reported Unique Visit volumes for the same period of time
for insurance.com, QuickQuote, Pivot, YouDecide.com, ReliaQuote.com, Quotesmith,
Insurerate, 1stQuoteNetwork (which list may be updated annually) published by
Media Metrix (a third-party rating service) or such other service mutually
agreed upon by the parties during the term of the Agreement); provided that
Intuit shall have audit rights pursuant to Section 4.11 to confirm InsWeb's
reporting hereunder.
4.7 INTUIT LINK ON INSWEB WEBSITE. InsWeb shall display reasonably
conspicuous permanent links to the Intuit Website on the final screen of all
Quote Request Forms presented to Intuit-Originated Users during the term of this
Agreement to facilitate the return to the Intuit Website, with the placement of
the links on such screens to be at InsWeb's reasonable discretion. Subject to
Intuit's reasonable discretion, InsWeb shall display reasonably conspicuous
permanent links to the Intuit Website on other content screens presented to
Intuit-Originated Users during the term of this Agreement to facilitate the
return to the Intuit Website.
4.8 COMPLIANCE WITH APPLICABLE LAW. Each of the parties shall comply
with all applicable laws in the performance of its obligations under this
Agreement. InsWeb and InsWeb Sub shall obtain all required licenses,
authorizations, approvals and appointments necessary to perform the Agreement.
InsWeb will notify Intuit of any material change in law or regulation, including
without limitation any regulatory actions, that require a material modification,
suspension or discontinuance of the parties' performance of the services or
products being provided under this Agreement. Intuit shall have the right to
suspend, modify or discontinue such services at anytime without notice to InsWeb
based on such changes. As between Intuit and InsWeb, InsWeb is solely
responsible for performance of all insurance agency, brokerage and other
insurance-related services offered or provided pursuant to this Agreement that
require licensure, including the acts or omissions of any agents or brokers
acting on its behalf or engaged by it. InsWeb shall provide to Intuit for review
and comment any material written or oral adverse communications from any state
Departments of Insurance relating to InsWeb's operations pursuant to this
Agreement. Each party shall notify the other if any regulatory agency
investigates or takes any other formal action against the party or an Affiliate
that affects its performance under this Agreement and if a party is unable to
bring its operations into compliance within 30 days of the investigation or
other formal action by a regulatory agency, the other party shall have the right
to terminate this Agreement.
4.9 EXCLUSIVITY; NEW PRODUCTS.
(a) During the Term (but subject to Section 4.9(b)), InsWeb
shall be the exclusive Aggregator for Consumer Insurance Products promoted by
Intuit to Intuit-Originated Users on the Quicken Network. Notwithstanding the
foregoing, nothing in this Agreement shall be construed as limiting or
prohibiting Intuit from promoting or acting as an Aggregator for Business
Insurance Products in the Quicken Network, or, subject to the non-
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
12
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
competition provisions of Section 4.4(b) of the Asset Purchase Agreement, from
promoting or acting as an Aggregator for Consumer Insurance Products outside of
the Quicken Network.
(b) In the event Intuit desires to offer Additional Products (or
expand the functionality offered in connection with any InsWeb-Offered Products,
e.g., provide online quotes for a particular product, but limited to
functionality that is offered by any other Aggregators) in the future, Intuit
shall first provide to InsWeb a written description of the types of, and the
intended implementation (e.g., quoting, binding, etc.) for promoting, the
Additional Products. InsWeb shall have thirty (30) days after receipt of such
information in which to notify Intuit in writing whether to promote the
Additional Products or expand the functionality on the InsWeb Website. If InsWeb
decides not to promote the Additional Products or expanded functionality or
fails to respond within the 30 day period, then Intuit shall be free to promote,
directly or indirectly, the Additional Product or expanded functionality without
further obligation to InsWeb. If InsWeb decides to promote the Additional
Product, it shall have sixty (60) days, in the case of Additional Products, or
one year in the case of expanded functionality, following such 30 day period in
which to develop and implement the Additional Product or expanded functionality
on the InsWeb Website and make the same accessible to the public. Intuit shall
provide reasonable assistance as requested by InsWeb, at InsWeb's expense, to
add the Additional Product to the InsWeb Website. Any Additional Products added
to the InsWeb Website shall be subject to all terms of this Agreement, including
but not limited to Section 5. The exercise by Intuit of any rights granted by
this Section 4.9(b) shall not be a violation of the exclusivity provisions of
Section 4.9(a) herein or the non-competition provisions of Section 4.4 of the
Asset Purchase Agreement.
4.10 NEW INTUIT PARTNERS. Without the prior written approval of
InsWeb, Intuit shall not enter into any agreements with third parties after the
Effective Date of this Agreement where the purpose of such third party agreement
is the linking of such third party's Website directly to the Co-Branded
Insurance Center.
4.11 RECORDS AND AUDIT.
(a) Each of Intuit and InsWeb will keep and maintain at its
principal place of business complete books and records ("Records") relating to
its performance of and amounts owed under this Agreement during the term of the
Agreement and for a minimum of two years (or such longer period as may be
required by applicable law) thereafter. During the term of this Agreement and
for two years after its termination, Intuit, InsWeb, or their designated
representatives and any regulatory agencies shall have the right, upon not less
than ten days advance notice, during normal business hours at `the other party's
headquarters, to audit the books and records of the other party relating to this
Agreement. Any audit shall be subject to the reasonable security requirements of
the audited party and the confidentiality provisions of Section 7.1 hereof.
Neither party will exercise its rights under this Section 4.11 more than twice
per year (or once after this Agreement's termination or expiration) unless
required by a regulatory agency, and may make and retain copies of the Records
as reasonably required (subject to compliance with Section 7.1 herein). The
audited party shall reasonably cooperate in the audit, provided that the
auditing party shall conduct any such audit, inspection and reproduction in a
manner that does not unreasonably impede the ability of the audited party to
meet its obligations hereunder. The auditing party will be responsible for its
own costs and expenses in connection
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
13
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
with such audits and inspections unless the audit reveals an underpayment by
InsWeb or an underperformance by Intuit of more than ten percent for the period
of time audited, in which case the audited party shall reimburse the auditing
party for its reasonable audit costs. Any underpayments will be paid promptly by
the audited party, including interest at the then prevailing prime rate as
announced in the Wall Street Journal, as of the date the commencement of the
audit.
(b) Within thirty (30) days after the last day of each calendar
month, InsWeb shall provide Intuit with detailed reports, an example of which
appears in Exhibit C, containing usage and site activity and product purchasing
information relating to the activity of Intuit-Originated Users coming from
Intuit sources (e.g., each of the discrete sources in the Quicken Network such
as quicken.com or quickeninsurance.com) and, separately, the activity of
Intuit-Originated Users coming from Intuit Partner Websites (provided that
InsWeb shall not be required to report any activity related to Intuit Partners
that are assigned to and assumed by InsWeb except to the extent reasonably
required to support the calculation of amounts owed to Intuit), including but
not limited to: (i) the number of Clickthroughs coming from each Intuit source
and, subject to compliance with its confidentiality obligations, each Intuit
Partner Website to the InsWeb Website; (ii) the number of completed shopping
sessions (i.e. from a session in which a consumer completes a Quote Request
Form); (iii) the number of RFQ in the applicable calendar month; (iv) the number
of RFC in the applicable calendar month; (v) the number of RFCA in the
applicable calendar month; and (vi) the number of RFB in the applicable calendar
month. From time to time, Intuit may, at its expense, engage a mutually agreed
upon third party to inspect such reports with InsWeb's cooperation to verify the
accuracy of the information contained therein and the methods used in the
generation of such reports. The parties may, by mutual written consent, alter
the content of the site activity reports.
4.12 ACCOUNT MANAGERS. Each of the parties will designate an account
manager (and provide related contact information) to coordinate the interactions
of the parties with respect to the links from the Co-Branded Insurance Center to
the InsWeb Website and provide emergency contact information for site operations
personnel.
4.13 ADDITIONAL MARKETING. Except for the Non-Insurance Products
specified in Exhibit D, InsWeb shall be permitted to display Non-Insurance
Products and Business Insurance Products to Intuit-Originated Users accessing
the InsWeb Website, provided that (i) the marketing of Consumer Insurance
Products shall be the most prominent products promoted or sold on the InsWeb
Website, (ii) the marketing or promotion of any Non-Insurance Products or
Business Insurance Products shall not be targeted at or limited to
Intuit-Originated Users, and (iii) any landing pages on the InsWeb Website from
the Co-Branded Insurance Center or Intuit Partners shall not have any promotions
for Non-Insurance Products or Business Insurance Products thereon. All marketing
by InsWeb under this Section 4.13 shall also comply with the privacy
requirements pertaining to personally identifiable information contained in
Section 7.3. Intuit shall be allowed to annually update the Non-Insurance
Products listed in Exhibit D by written notice to InsWeb; provided, however,
that InsWeb shall not be in breach of this Section 4.13 by reason of its
continuing to perform its obligations under marketing agreements entered into
between InsWeb and a third party prior to such update (provided that InsWeb
shall not renew any such agreements beyond their stated term, and agrees to
terminate such agreements
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
14
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
within twelve months if such earlier termination will be accomplished without
additional cost to InsWeb).
4.14 TRACKING OF INTUIT-ORIGINATED USERS. InsWeb will identify, track
and monitor all Intuit-Originated Users as may be necessary to (i) accurately
determine and verify all calculations contemplated by this Agreement, including
without limitation, the amounts payable to Intuit pursuant to this Agreement,
and (ii) provide accurate reports required pursuant to the Agreement.
5. COMPENSATION.
(a) ANNUAL MARKETING FEES. During the Term, InsWeb shall pay to
Intuit (or its designee) the following guaranteed marketing fees ("Annual
Marketing Fee"):
------------------------------------------------------------------
Year of Term ANNUAL Marketing Fee
(each, a "Payment Year")
------------------------------------------------------------------
First Year [*****]
------------------------------------------------------------------
Second Year [*****]
------------------------------------------------------------------
Third Year [*****]
------------------------------------------------------------------
Fourth Year [*****]
------------------------------------------------------------------
Fifth Year [*****]
------------------------------------------------------------------
Each Annual Marketing Fee shall be payable in four equal installments
during each Payment Year (each installment, referred to herein as a "Quarterly
Payment"). InsWeb shall pay each Quarterly Payment on the first day of each
three calendar month period after the Launch Date during the Term as illustrated
below; provided, however, if the Launch Date shall occur on a day other than the
first day of a month, then the first quarter shall be three full calendar months
from and after the Launch Date.
Illustration 1: First Payment Year payment schedule assuming a Launch Date
of January 1, 2001.(1)
----------------------------------------------------------------------------------------
Quarter Start Date Quarterly Payment Payment Due Date
----------------------------------------------------------------------------------------
January 1, 2001 [*****] January 1, 2001
----------------------------------------------------------------------------------------
April 1, 2001 [*****] April 1, 2001
----------------------------------------------------------------------------------------
July 1, 2001 [*****] July 1, 2001
----------------------------------------------------------------------------------------
October 1, 2001 [*****] October 1, 2001
----------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
15
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
1 In this illustration, the First Payment Year would be from January 1,
2001 through December 31, 2001, and each Payment Year thereafter would commence
on January 1st and end on the subsequent December 31st. Within the First Payment
Year, the first quarter would be from January 1, 2001 through March 31, 2001,
the second quarter would be from April 1, 2001 through June 30, 2001, etc.
Illustration 2: First Payment Year payment schedule assuming a Launch Date
of February 20, 2001.(1)
----------------------------------------------------------------------------------------
Quarter Start Date Quarterly Payment Payment Due Date
----------------------------------------------------------------------------------------
February 20, 2001 [*****] February 20, 2001
----------------------------------------------------------------------------------------
June 1, 2001 [*****] June 1, 2001
----------------------------------------------------------------------------------------
September 1, 2001 [*****] September 1, 2001
----------------------------------------------------------------------------------------
December 1, 2001 [*****] December 1, 2001
----------------------------------------------------------------------------------------
1 In this illustration, the First Payment Year would be from February 20,
2001 through February 28, 2002, and each Payment Year thereafter would commence
on March 1st and end on the subsequent February 28th (or February 29th in a leap
year). Within the First Payment Year, the first quarter would be from February
20, 2001 through May 31, 2001, the second quarter would be from June 1, 2001
through August 31, 2001, etc.
(b) Transaction Fees.
(i) AMOUNT OF TRANSACTION FEES. During the Term, InsWeb
shall also pay Intuit (or its designee) a transaction fee ("Transaction Fee").
The Transaction Fee shall be calculated as of the end of each three month period
for which a Quarterly Payment was due. The parties intend that the Transaction
Fee shall be equal to [*****] of InsWeb's Gross Revenue relating to
Intuit-Originated Users for the applicable three month period (as used herein,
"Gross Revenue" shall mean aggregate gross amounts (e.g., all royalties,
commissions, lead generation fees, referral fees and other compensation BEFORE
taxes, costs, revenue share payments to third parties, rebates and other
deductions) received by InsWeb and its Affiliates relating to Consumer Insurance
Product transactions by Intuit-Originated Users, including in each case shipping
& handling or service charges, and excluding in each case, any InsWeb refunds to
insurance carriers for cancelled or reversed transactions ). Initially, the
parties agree to calculate the Transaction Fee for certain specified
InsWeb-Offered Products pursuant to the amounts set forth in Exhibit E and based
on the number of Request Types originated for the specified InsWeb-Offered
Products or, where the applicable product or service does not have a Request
Type, as otherwise provided therein. During the Term, the parties shall review
the determination of the Transaction Fees (including any underlying values and
assumptions based on then current information for the various Request Types) and
the accuracy of the tracking mechanism for
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
16
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
Intuit-Originated users (a) two weeks after the Launch Date, (b) at the end of
the second, fourth, sixth, and eighth three-calendar month periods after the
Launch Date and (c) on the annual anniversary of the Launch Date thereafter,
and, after each such review, make mutually agreed upon adjustments so that the
applicable fees for the products and services (including any Additional
Products) that may be offered or promoted on the InsWeb Website continue to
provide Intuit with a [*****] share of the Gross Revenue generated from
Intuit-Originated Users.
(ii) PAYMENT AND CALCULATION OF TRANSACTION FEES. At the end
of each three month period, InsWeb will total the year-to-date cumulative amount
of Transaction Fees owed to Intuit. If the year-to-date cumulative Transaction
Fees exceed the Annual Marketing Fee for that Payment Year, then InsWeb will pay
to Intuit (or its designee) the difference between the year-to-date cumulative
Transaction Fees and the Annual Marketing Fee, which payment to be in addition
to the Quarterly Payments required by Section 5(a); provided, that in all
subsequent three month periods within the same Payment Year in which there is an
excess between the year-to-date cumulative Transaction Fees and the Annual
Marketing Fee, then InsWeb shall pay the actual amount of Transaction Fees
generated in such three month period without comparison to the Annual Marketing
Fee (see below illustration). If the year-to-date cumulative Transaction Fees do
not exceed the Annual Marketing Fee for a specified three month period, then no
Transaction Fee shall be paid for such period. All payments of Transaction Fees
will be paid within 30 days from the last day of each three month period, and be
accompanied by a report in reasonable detail supporting the calculation of all
amounts owed (including supporting information for any adjustments made pursuant
to subsection 5(b)(iv) below).
Illustration: Assume First Payment Year; Annual Marketing Fee is [*****]
---------------------------------------------------------------------------------------------
Quarter Quarterly Transaction YTD Cumulative Payment of Transaction
Fees Transaction Fees Fees by InsWeb
---------------------------------------------------------------------------------------------
1 $1,000,000 $1,000,000 [*****]
---------------------------------------------------------------------------------------------
2 $3,000,000 $4,000,000 [*****]
---------------------------------------------------------------------------------------------
3 $3,000,000 $7,000,000 [*****]
---------------------------------------------------------------------------------------------
4 $2,000,000 $9,000,000 [*****]
---------------------------------------------------------------------------------------------
(iii) ADJUSTMENT TO TRANSACTION FEES. Pursuant to Section
5(b)(i), the Transaction Fees payable by InsWeb in connection with third party
relationships assigned, delegated, subcontracted or otherwise transferred by
Intuit shall be at the rate of [*****] during the stated term of any related or
replacement agreement and any renewal terms thereof [*****].
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
17
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
(iv) FURTHER ADJUSTMENT TO TRANSACTION FEES. InsWeb cannot,
in all cases, determine whether a person visiting the InsWeb Site is a returning
Intuit-Originated User. Therefore, notwithstanding Section 5(b)(i) above, for
every quarter during the term of this Agreement, the amount of Transaction Fees
calculated pursuant to Section 5(b) shall be increased by the percentage equal
to[*****]. By way of illustration, if the foregoing formula resulted in a
percentage increase equal to [*****] for the quarter of January through March
2001, then the aggregate Transaction Fees calculated for such period would be
increased by [*****] (e.g., if the Transaction Fees for such quarter were
calculated to be [*****], then the adjusted Transaction Fees payable for such
quarter would be [*****]). InsWeb shall automatically determine and make such
adjustments in its periodic payments of Transaction Fees to Intuit.
Notwithstanding the foregoing, if InsWeb implements "return user" identification
and tracking functionality, then InsWeb shall implement such functionality to
track returning Intuit-Originated Users.
(c) Any amounts payable pursuant to this Agreement that are more
than sixty days past due shall bear interest at twelve percent per annum on the
unpaid balance.
6. ADDITIONAL CONSIDERATION.
(a) "SUBCONTRACTED RESPONSIBILITIES" FOR DISTRIBUTION AGREEMENT
WITH MULTI-PRODUCT PARTNER (VARIABLE AMOUNTS). [*****]
(b) "ASSIGNED RESPONSIBILITIES" FOR DISTRIBUTION AGREEMENT WITH
INSURANCE PARTNERS.
(1) [*****]
(2) [*****]
(c) "SUBCONTRACTED RESPONSIBILITIES" FOR DISTRIBUTION AGREEMENT
WITH INSURANCE PARTNERS.
(1) [*****]
(2) [*****]
(d) [*****]
(e) ILLUSTRATIONS.
[*****]
[*****]
[*****]
[*****]
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
18
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
[*****]
[*****]
7. CONFIDENTIALITY; PUBLICITY; SECURITY; PRIVACY.
7.1 CONFIDENTIALITY.
(a) For the term of this Agreement and for five (5) years
thereafter, the receiving party shall: (i) use commercially reasonable efforts
to maintain the confidentiality of Confidential Information and not disclose
such Confidential Information to third parties (except for the receiving party's
representatives, agents and contractors who have a need to know, are under a
duty of non-disclosure, and are acting for the sole benefit of the receiving
party), which efforts shall accord such Confidential Information at least the
same level of protection against unauthorized use and disclosure as the
receiving party customarily accords its own information of a similar nature;
(ii) use or permit the use of such Confidential Information solely in accordance
with and to accomplish the terms of this Agreement; and (iii) promptly notify
the disclosing party in writing of any loss or unauthorized use or disclosure of
or access to the disclosing party's Confidential Information of which it becomes
aware. The parties hereto shall each abide by and reproduce and include any
restrictive legends or confidential rights notices (although such restrictive
legends or confidential rights notices are not required for Confidential
Information to be afforded the protection required by this Section 7) that
appear in or on any Confidential Information of the other party hereto that it
is authorized to reproduce. Each party shall also not remove, alter, cover or
distort any confidential rights notices, legends, symbols or labels appearing in
any Confidential Information of any other party hereto. For purposes of this
Agreement, a "need to know" means that the person requires the Confidential
Information to perform his or her responsibilities in connection with this
Agreement.
(b) The restrictions on disclosure and use set forth in Section
7.1(a)shall not apply to the extent that Confidential Information: (i) is or
becomes generally available to the public through no fault of the receiving
party; (ii) was rightfully known to the receiving party free of any obligation
to keep it confidential prior to the Effective Date of this Agreement; (iii) is
subsequently disclosed to the receiving party by a third party who may
rightfully transfer and disclose such information without restriction and free
of any obligation to keep it confidential; or (iv) is required to be disclosed
by the receiving party as a matter of law, provided that the receiving party
uses all reasonable efforts to provide the disclosing party with at least ten
(10) days' prior written notice of such disclosure and the receiving party
discloses only that portion of the Confidential Information that is legally
required to be furnished pursuant to the opinion of legal counsel of the
receiving party. Notwithstanding the foregoing, each party hereto retains the
right, in its sole discretion, to disclose any Confidential Information to (x)
any regulatory agency, whether pursuant to an audit by such agency or otherwise,
or (y) to its Affiliates that have a need to know such information for the
purposes of performing this Agreement (provided that such Affiliates agree to be
bound by the confidentiality provisions of this Agreement).
(c) The parties acknowledge that the breach of any portion of
this Section 7.1 would cause the disclosing party irreparable harm for which
monetary damages
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
19
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
would be inadequate. Accordingly, in addition to other remedies available to it,
the disclosing party shall be entitled to seek injunctive or other equitable
relief to remedy any threatened or actual breach of any portion of this Section
7.1 by the receiving party.
7.2 SECURITY. InsWeb will ensure that its facilities and
information and data provided by an Intuit-Originated User on the InsWeb Website
is maintained in a secure environment that will protect customer information
from loss, misuse and unauthorized alteration during its storage, processing and
transmission and that is equal to the security used by InsWeb to protect similar
information collected by InsWeb from other sources, but in no event shall the
security employed by InsWeb be less than what is commercially reasonable.
7.3 CUSTOMER DATA & PRIVACY.
(a) It is understood that Intuit will not be providing
InsWeb with any personally identifiable information concerning Intuit-Originated
Users, other than information that may be disclosed pursuant to any future
agreement by the parties pursuant to Section 7.3(c). In connection with the
operation of the InsWeb Website, InsWeb shall collect personally identifiable
information from Intuit-Originated Users and, thereby, establish an independent
customer relationship with such persons. Intuit is not responsible for any
information provided to or transactions entered into by customers with InsWeb,
who shall be governed by the terms of InsWeb's privacy policy (a current form of
which is attached hereto as Exhibit F, and referred to herein as the "InsWeb
Privacy Policy") and for which Intuit shall have no liability. InsWeb shall
protect any personally identifiable information collected from consumers on the
InsWeb Website from unauthorized use or disclosure pursuant to the InsWeb
Privacy Policy, which shall (i) be posted conspicuously on pages of the InsWeb
Website accessed by Intuit-Originated Users and (ii) shall not be modified in
the future to contain terms and conditions less protective of such information
than the InsWeb Privacy Policy attached hereto. As used in this Agreement,
"personally identifiable information" is information about Intuit-Originated
Users that identifies or can be used to identify, contact, or locate the person
to whom such information relates.
(b) Except as required to perform its obligations pursuant
to this Agreement, InsWeb shall not sort, disclose or use any Intuit-Originated
User information in a manner that identifies such person as an Intuit customer .
(c) The parties agree to work toward the development of
mutually agreeable procedures and conditions for InsWeb's disclosure of
personally identifiable information relating to Intuit-Originated Users
collected through the InsWeb Website and, alternatively, for Intuit's disclosure
of personally identifiable information relating to its customers who have saved
automobile insurance quotes in "personal insurance portfolios" within the two
month period prior to the Effective Date; provided however, that any such
procedures and conditions shall comply with applicable law (including the
Gramm-Leach-Bliley Financial Services Modernization Act) and any disclosures
shall require notice to and the affirmative consent (i.e., an "opt-in"
mechanism) of the affected Intuit-Originated User or customer. Notwithstanding
the foregoing, InsWeb acknowledges that there are no restrictions on its
disclosure to Intuit of aggregate (i.e., non-personally identifiable)
information, including its reporting of the information of the type describe in
Section 4.11 above.
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
20
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
8. TERM; TERMINATION.
8.1 TERM. The term of this Agreement shall commence on the Effective
Date and remain in force for a period of sixty (60) full calendar months from
and after the Launch Date, unless sooner terminated pursuant to the provisions
hereof (the "Term"). For example, if the Launch Date were January 15, 2001, then
the First Payment Year would be from January 15, 2001 through January 31, 2002,
each subsequent Payment Year would be from February 1st until the next
successive January 31st, and the Agreement would expire on January 31, 2006.
8.2 TERMINATION FOR CAUSE. In addition to each party's rights of
immediate termination explicitly stated in Sections 4.8 and 8.6, or InsWeb's
rights of termination pursuant to Section 4.1(d)(v), either party may terminate
this Agreement, effective at any time upon the giving of written notice, which
notice shall include the date of termination ("Termination Date"): (i) in the
event that the other party is in material breach of this Agreement and fails to
cure such breach within 30 days after receiving written notice of such breach;
or (ii) in the event that the other party makes an assignment for the benefit of
creditors, or commences or has commenced against it any proceeding in
bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of
debtor's moratorium that is not dismissed within sixty days of the commencement
of such proceeding or event.
8.3 TERMINATION FOR FINANCIAL DEFICIENCY. If the balance sheet
included in any financial information contained in any public disclosure of
InsWeb (including, but not limited to, earnings releases, Form 10-Q or Form 10-K
filings with the SEC) (a "Public Announcement") indicates that InsWeb has either
(i) less than $8,000,000 in total cash, cash equivalents and investments in
marketable securities or (ii) a current ratio (i.e., the quotient produced by
dividing InsWeb's current assets by InsWeb's current liabilities) of less than
0.85 (each of which is referred to herein as a "Financial Deficiency"), then
Intuit shall have the right to terminate this Agreement pursuant to the
following terms and conditions:
(i) If a Financial Deficiency occurs, then InsWeb shall deliver
to Intuit within ten (10) days after each month beginning after a Public
Announcement disclosing a Financial Deficiency a monthly balance sheet of InsWeb
prepared in accordance with GAAP (except for the omission of footnotes and
customary year-end adjustments) and certified by InsWeb's Chief Financial
Officer or the person who signs SEC filings on behalf of InsWeb (the "Interim
Balance Sheet").
(ii) The right of Intuit to terminate this Agreement shall be
exercisable if, at the expiration of the sixty (60) day period that commences on
the date of the Public Announcement that discloses the Financial Deficiency
(such sixty (60)-day period being referred to herein as the "Cure Period"), the
most recent Interim Balance Sheet discloses the Financial Deficiency that was
disclosed in the earlier Public Announcement.
(iii) If, during the Cure Period, any Interim Balance Sheet does
not disclose the Financial Deficiency that was disclosed in the earlier Public
Announcement, Intuit shall have no right to terminate this Agreement and InsWeb
may cease furnishing Interim Balance Sheets to Seller and Intuit unless and
until a subsequent Public Announcement discloses a Financial Deficiency, in
which case the Cure Period as to such subsequent Public
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
21
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
Announcement will begin. Each of InsWeb's Interim Balance Sheets shall be deemed
to be a Public Announcement for the purposes of this 8.3.
8.4 EFFECT OF TERMINATION. Upon any termination or expiration of this
Agreement: (i) all payments owed to Intuit pursuant to this Agreement shall be
paid in full within thirty (30) days after the Termination Date or the end of
the Term, whichever is applicable; (ii) InsWeb will provide final Reports under
Section 4.11 to Intuit; (iii) each party will cease using the marks of the other
(provided that Intuit will not be obligated to remove InsWeb's name or logo
incorporated into the Intuit Software Products unless and until Intuit has
sufficient notice to remove such content in the normal course of business from
the next version of such product); (iv) each party will disable and remove any
links between the InsWeb Website and Intuit Website (and other sources), as
applicable; (v) each party will cooperate with the other party in posting Web
pages to be viewed at the destination of any surviving links that will notify
Intuit-Originated Users of the termination of the relationship between the
parties, to be mutually agreed upon by both parties; and (vi) each party upon
written request of the other party shall promptly return or destroy (and certify
as to the destruction thereof, without retaining any copies) all Confidential
Information of the other party, and other information, documents, manuals and
other materials belonging exclusively to the other party, except as may be
otherwise provided in this Agreement. The termination of this Agreement will not
terminate, affect or impair any rights, obligations or liabilities of any party
hereto which may accrue prior to such termination or which, under the terms of
this Agreement, continue after the termination and, to the extent not otherwise
barred by any applicable statute of limitations, either party may bring an
action against the other party for a breach of this Agreement which occurred
during the term or any renewal hereof.
8.5 TRANSITION ASSISTANCE. InsWeb shall reasonably cooperate with
Intuit to effectuate an orderly transition of the services provided under this
Agreement in the event of any termination; provided that InsWeb shall not be
required by this Section 8.5 to transfer any computer programming, intellectual
property, databases or, without the customer's permission, any customer
information.
8.6 CHANGE OF CONTROL. Either party may terminate this Agreement in
the event of a Change of Control of the other party to an Enumerated Person. For
purposes hereof, an "Enumerated Person" shall mean with respect to each of
InsWeb and Intuit the persons identified in Exhibit G attached hereto and such
other persons as Intuit and InsWeb shall identify on or about each anniversary
of this Agreement; provided that neither Intuit nor InsWeb shall be entitled to
designate more than three (3) Enumerated Persons at any one time.
8.7 SURVIVAL. The terms and conditions of Sections 1, 4.11(a), 7
(all), 8.4, 8.5, 8.7, 9.3, 9.4, 10 (all) (as regards transactions or facts
occurring prior to the expiration or termination of this Agreement) and 11 will
survive the expiration or termination of this Agreement and will remain in full
force and effect notwithstanding any expiration or termination of this
Agreement.
9. REPRESENTATIONS AND WARRANTIES.
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
22
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
9.1 REPRESENTATIONS AND WARRANTIES OF INTUIT. Intuit hereby
represents and warrants to InsWeb that: (a) it is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized; (b) it has all necessary power and authority to enter into this
Agreement and to perform all of its obligations under this Agreement; (c) this
Agreement has been duly authorized, executed and delivered by, and constitutes
the valid and binding obligation of Intuit enforceable in accordance with its
terms (except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general principles of equity); (d) neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated herein will (i) violate the charter or bylaws, or any other
equivalent organizational documents of Intuit, or (ii) require any consent or
approval under any judgment, order, writ, decree, permit, agreement with any
regulating authority or license, to which Intuit is a party; (e) there is no
pending or, to the actual knowledge of Intuit, threatened claim, litigation,
proceeding, arbitration, or investigation or controversy before any governmental
agency to which Intuit is a party, which may adversely and materially affect the
ability of Intuit to perform its obligations hereunder; and (f) Intuit or its
Affiliates own the entire right, title, and interest in and to all Intuit
Licensed Marks licensed to InsWeb hereunder, none of the Intuit Licensed Marks
is subject to any outstanding or pending orders, decrees, judgments,
stipulations, claims, settlements, security interest, encumbrance or any other
adverse claim or restriction, and Intuit and its Affiliates have full right,
power and authority to provide InsWeb with the license set forth in Section 2 of
this Agreement to use the Intuit Licensed Marks.
9.2 REPRESENTATIONS AND WARRANTIES OF INSWEB. InsWeb hereby
represents and warrants to Intuit as follows: (a) InsWeb is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, (b) InsWeb has all necessary power and
authority to enter into this Agreement and to perform all of its obligations
under this Agreement; (c) this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding obligation of InsWeb
enforceable in accordance with its terms (except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general principles
of equity); (d) neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, by InsWeb will (i) violate
the charter or bylaws, or any other equivalent organizational documents of
InsWeb, or (ii) require any consent or approval under any judgment, order, writ,
decree, agreement with any regulatory authority, permit or license, to which
InsWeb is a party; (e) there is no pending or, to the actual knowledge of
InsWeb, threatened claim, litigation, proceeding, arbitration, investigation or
controversy before any governmental agency to which InsWeb is a party, which may
adversely and materially affect the ability of InsWeb to perform its obligations
hereunder; and (f) InsWeb owns the entire right, title, and interest in and to
all InsWeb Licensed Marks licensed to Intuit hereunder, none of the InsWeb
Licensed Marks is subject to any outstanding or pending orders, decrees,
judgments, stipulations, claims, or settlements, security interest, encumbrance
or any other adverse claim or restriction and InsWeb has full right, power and
authority to provide Intuit with the license set forth in Section 3 of this
Agreement to use the InsWeb Licensed Marks.
9.3 LIMITATION OF WARRANTIES. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN
THIS AGREEMENT, ALL SERVICES PROVIDED BY INSWEB HEREUNDER
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
23
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. INTUIT RECOGNIZES THAT THE
"AS IS" CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS
AGREEMENT, WITHOUT WHICH INSWEB WOULD NOT HAVE AGREED TO ENTER INTO THIS
AGREEMENT. INSWEB EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS,
EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES
OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT.
INTUIT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS
WARRANTIES CONTAINED IN THIS AGREEMENT.
9.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF
ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT,
TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT
WITH RESPECT TO AMOUNTS THAT ONE PARTY OWES TO THE OTHER PARTY PURSUANT TO THE
TERMS OF THIS AGREEMENT (E.G., INSWEB'S PAYMENT OBLIGATIONS PURSUANT TO SECTIONS
5 AND 6 HEREIN) OR TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR TO
CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION, THE TOTAL
LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO AND SHALL NOT
EXCEED FIVE MILLION DOLLARS.
10. INDEMNIFICATION.
10.1 INDEMNIFICATION BY INTUIT. Intuit will indemnify and hold InsWeb
and its Affiliates, officers, directors, employees, successors and permitted
assigns, harmless from and against any third party Losses (as defined below)
arising out of, relating to or incurred as a result of (i) the breach of any
covenant, representation or warranty made by Intuit under this Agreement, and
(ii) the infringement or misappropriation of any patent, copyright, trademark,
trade secret, or other proprietary right of any third party in the performance
of Intuit's obligations under this Agreement. For purposes of this Section 10,
"Losses" means all out-of-pocket costs, fees, damages, claims and expenses,
including outside and in-house attorneys' fees, disbursements and court costs,
incurred by a third party.
10.2 INDEMNIFICATION BY INSWEB. InsWeb will indemnify and hold Intuit
and its Affiliates, officers, directors, employees, successors and permitted
assigns, harmless from and against any third Losses arising out of, relating to
or incurred as a result of (i) the breach of any covenant, representation or
warranty made by InsWeb under this Agreement, (ii) the infringement or
misappropriation of any patent, copyright, trademark, trade secret, or other
proprietary right of any third party in the performance of InsWeb's obligations
under this Agreement.
10.3 PROCEDURES FOR INDEMNIFICATION. The parties will follow the
procedures set forth in Exhibit H with respect to any and all indemnification
claims under this Section10.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
24
- --------------------------------------------------------------------------------
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
- --------------------------------------------------------------------------------
10.4 INSURANCE. In connection with its performance of this Agreement,
InsWeb will carry General Commercial Liability, Errors and Omissions (including
data processing and insurance agency coverages) insurance policies that provide
coverage with minimum limits of insurance of $5,000,000 per claim and
$10,000,000 annual aggregate with respect to general liability including without
limitation products/completed operations and errors and omissions liability.
InsWeb shall include Intuit and, at Intuit's request, Intuit's Affiliates as
additional insureds on such policies, and such policies will require the carrier
to provide to Intuit notice thirty (30) days in advance of cancellation or
reduction in coverage or limits. At Intuit's request, which may be made from
time to time, InsWeb shall provide Intuit with a certificate of insurance that
evidences such coverages.
11. GENERAL PROVISIONS.
11.1 FORCE MAJEURE. If the performance of this Agreement by a party
hereto is prevented, restricted or interfered with by reason of any act of God,
fire or other casualty or accident, strikes or labor disputes, any law, order,
proclamation, regulations, ordinance, demand or requirement of any government
agency, or any other similar act or condition beyond the reasonable control of
such party hereto, the party so affected will, upon giving prompt written notice
to the other party, be excused from such performance only to the extent of such
prevention, restriction or interference; provided, that the party whose
performance is not affected may terminate this Agreement upon delivery of
written notice to the other party if such condition continues for a period in
excess of sixty days.
11.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California excluding its principles
of conflicts of law. Any and all actions arising out of or relating to this
Agreement shall be exclusively filed and resolved by the sate or federal courts
located in the County of San Francisco, California.
11.3 WAIVER. No party will be deemed to have waived any of its rights,
powers or remedies hereunder unless that party approves such waiver in writing.
Any delay, waiver, or omission by a party to exercise any right or power arising
from any breach or default in any of the terms, provisions, or covenants of this
Agreement will not be construed to be a waiver by that party of any subsequent
breach or default of the same or other terms, provisions or covenants.
11.4 ASSIGNMENT. Except as expressly set forth herein, no party may
assign or delegate this Agreement or any of its rights or duties under this
Agreement without the prior written consent of the other party hereto, which
consent will not be unreasonably withheld. Any purported assignment or
delegation in violation of this Agreement is null and void. This Agreement will
be binding upon and will inure to the benefit of the parties hereto and their
representatives and respective successors and permitted assigns. Any initial or
secondary offering of stock to the public markets by InsWeb and/or Intuit shall
specifically not be deemed an assignment. In addition, any change of control or
acquisition of more than 50% of a party's common stock by a third party shall
not be deemed an assignment for purposes of this Agreement, subject to the
provisions of Section 8.6. Subject to legal and contractual requirements, each
party agrees to give the other party reasonable notice of a proposed change in
control or acquisition of more than 50% of its common stock by a third party.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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11.5 ENTIRE AGREEMENT; AMENDMENTS. The terms and conditions contained
in this Agreement, including the Exhibits attached hereto, constitute the entire
agreement between the parties with respect to the subject matter thereof and
supersede all previous agreements and understandings, whether oral or written,
including that certain Web Site Affiliation Agreement between the parties
entered into January 16, 2001 (the "Interim Agreement"). With respect to the
termination of the Interim Agreement, the transition of the parties' business
arrangement to this Agreement and in recognition that the amount of the
Transactions Fees payable to Intuit are identical under both this Agreement and
the Interim Agreement, the parties agree that (i) the Launch Date shall be
deemed to have occurred on January 16, 2001 (i.e., the "First Year" shall be
from January 16, 2001 through January 31, 2002) and (ii) InsWeb's reporting and
payment delivery obligations pursuant to the Interim Agreement shall be merged
with performed in accordance with the analogous provisions of this Agreement
(e.g., any Transaction Fees otherwise payable pursuant to Section 4 of the
Interim Agreement shall, instead, be merged with and paid pursuant to Section 5
herein); provided, however, that the "Payment Due Date" for the first quarterly
installment of the Annual Marketing Fee shall be the Effective Date and not
January 16, 2001. No modification or amendment of this Agreement will be
effective unless and until set forth in writing and signed by the parties
hereto.
11.6 SEVERABILITY. If any provision of this Agreement or portion
thereof is held invalid, illegal, void or unenforceable by reason of any rule of
law, administrative or judicial provision or public policy, all other provisions
of this Agreement will nevertheless remain in full force and effect to the
extent such remaining provisions accurately reflect the intent of the parties.
11.7 EXHIBITS, HEADINGS AND CONSTRUCTION. The Exhibits attached hereto
are incorporated into and made a part of this Agreement as if fully set forth
herein. No rule of construction will be applied to the disadvantage of a party
because that party was responsible for the preparation of this Agreement or any
part hereof. The section headings in this Agreement are for convenient reference
only, and will be given no substantive or interpretive effect. With respect to
all terms used in this Agreement, words used in the singular include the plural
and words used in the plural include the singular. The word `including' means
including without limitation, and the words `herein', `hereby', `hereto' and
`hereunder' refer to this Agreement as a whole.
11.8 RELATIONSHIP OF PARTIES. The parties agree that in performing
their responsibilities pursuant to this Agreement they are in the position of
independent contractors. This Agreement is not intended to create, nor does it
create and will not be construed to create, an agency, partnership, joint
venture or any association for profit between and among Intuit and InsWeb.
11.9 NOTICES. All notices provided for hereunder (including a notice
of change of address) will be in writing and will be deemed given (a) in the
case of delivery by hand, when delivered by hand against a receipt, (b) in the
case of delivery by a standard overnight carrier, upon the date of delivery
indicated in the records of such carrier, or (c) in the case of delivery by
certified mail with return receipt requested, three business days after being
deposited in the United States mail, postage prepaid and addressed as provided
herein, or to such other address as may be specified by one party to the other
party in accordance with this Section 11.9:
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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If to Intuit: Intuit Inc.
2632 Marine Way
Mountain View, CA 94043
Attention: General Counsel
If to InsWeb: InsWeb Corporation
11290 Pyrites Way, Suite 200
Gold River, CA 95670-4481
Attention: General Counsel
11.10 EXPENSES. Except as otherwise expressly provided herein, each
party will bear its own legal, accounting and other costs and expenses,
including taxes, if any, in connection with the negotiation of this Agreement
and the performance of the transactions contemplated herein.
11.11 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, all of which together will constitute one original document.
11.12 EFFECTIVENESS. This Agreement will become effective as of the
Effective Date when it has been executed by an authorized officer of each of the
parties hereto.
11.13 PUBLICITY. Except to the extent that a party deems that such
announcement or disclosure is required by law (in which case the disclosing
party shall use reasonable efforts to advise the other party hereto and provide
such other party with a copy of the proposed disclosure prior to making the
disclosure), neither party shall make any public statement, press release or
other announcement relating to the terms of, existence of or performance under
this Agreement without the prior written approval of the other party (both as to
the content and timing of such release, statement or announcement). Each party
shall cooperate with the other to provide prompt review of all proposed
publicity material relating to this Agreement, and shall use commercially
reasonable efforts to complete its review of such proposed publicity material
within three (3) business days after its receipt. Nothing in this Agreement
supercedes any publicity provisions set forth in the Asset Purchase Agreement
that may apply to any announcements relating to the Acquisition.
[SIGNATURE PAGE FOLLOWS]
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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27
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written by their duly authorized representatives.
INSWEB CORPORATION INTUIT, INC.
By: By:
---------------------------------------- --------------------------------
Name: Name:
---------------------------------------- --------------------------------
Title: Title:
---------------------------------------- --------------------------------
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NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*****]" ARE SUBJECT TO A REQUEST
FOR CONFIDENTIAL TREATMENT, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. A COMPLETE,
UNREDACTED COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
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