Legal Proceedings

EXHIBIT 10.41

INTUIT
MASTER SERVICES AGREEMENT

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

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

2.          Services.

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

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

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

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

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

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

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

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

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

4.          Compensation and Payment.

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

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

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

2

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

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

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

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

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

6.          Term/ Termination.

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

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

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

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

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

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

3

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

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

8.          Ownership and Licenses.

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

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

9.          Confidential Information.

(a)       For the purposes of this Agreement, “Confidential Information” means the Contractor Materials, the Intuit Materials, the terms and conditions of this Agreement (including all Statements of Work and any other related documents), customer data and all non-public information about the disclosing party’s (or its suppliers’) business or activities that is proprietary and confidential, which shall include all business, customer, financial, technical and other information of either party, whether or not it is marked or designated by such party as “confidential or “proprietary” at the time of disclosure. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party rightfully knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independent of any information originating from the disclosing party.

(b)       Each party agrees that: (i) it will not disclose to any third party any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by the other party except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; or on a “need-to-know” basis under an obligation of confidentiality to its legal counsel and accountants.

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

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

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

10.          Representations and Warranties.

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

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

4

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

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

11.          Indemnification.

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

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

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

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

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

5

THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (ii) THE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE GREATER OF (i) FIVE MILLION DOLLARS ($5,000,000) OR (ii) THE AMOUNTS PAID (OR IN THE CASE OF INTUIT, PAID AND DUE AND PAYABLE) BY INTUIT TO CONTRACTOR HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

14.          General.

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

(b)       Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any attempt by either party to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of both parties, their successors and permitted assigns.

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

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

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

To Contractor:

with a copy to:

with a copy to:

Intuit Inc.
2700 Coast Avenue
Mountain View, California 94043
Attn: General Counsel, Legal Dept.
Phone: (650)  ###-###-####
Fax ###-###-####

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

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

6

(h)       Entire Agreement. This Agreement, together with the Exhibits attached hereto, and all Statements of Work, is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

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

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

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

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

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

7

Exhibit A

Independent Contractor Details:

Name of Contractor (Company): BeMusic, Inc.

Contractor’s Telephone Number: (864)  ###-###-####

Contractor’s Facsimile Number: (864)  ###-###-####

Tax ID Information:

Please provide Federal Tax ID Number: 23 ###-###-####

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

8

Exhibit B

STATEMENT OF WORK NO. ____

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

9

Exhibit C

RULES OF CONDUCT FOR ONSITE SERVICE PROVIDERS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10

Exhibit D

CERTIFICATE OF ACCEPTANCE

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

11

Exhibit E

Intuit Service Provider Privacy Exhibit

1.     INTRODUCTION

2.     DEFINITIONS

3.     SERVICE PROVIDER RESPONSIBILITIES – GENERAL

12

Do-Not-Call Policy

13

Exhibit F

INTUIT SECURITY REQUIREMENTS

Definitions

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

14

15

16

Exhibit G

REIMBURSABLE EXPENSE GUIDELINES

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

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

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

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

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

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

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

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

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

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

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

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

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