<PAGE>
As filed with the Securities and Exchange Commission on June 14, 1999
Registration No. 333-77025
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
AMENDMENT NO. 3 TO FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
STAMPS.COM INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
Delaware 5961 77-0454966
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Number) Identification No.)
</TABLE>
------------------
3420 Ocean Park Boulevard, Suite 1040
Santa Monica, California 90405
(310) 581-7200
(Address, Including Zip Code and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
------------------
John M. Payne
President and Chief Executive Officer
STAMPS.COM INC.
3420 Ocean Park Boulevard, Suite 1040
Santa Monica, California 90405
(310) 581-7200
(Name, Address, Including Zip Code and Telephone Number,
Including Area Code, of Agent for Service)
------------------
Copies to:
<TABLE>
<S> <C>
Bruce R. Hallett, Esq. Alan K. Austin, Esq.
Allen Z. Sussman, Esq. Mark L. Reinstra, Esq.
Sean M. Pence, Esq. James C. Creigh, Esq.
Brobeck, Phleger & Harrison LLP Brian M. McDaniel, Esq.
38 Technology Drive Wilson Sonsini Goodrich & Rosati
Irvine, California 92618 650 Page Mill Road
(949) 790-6300 Palo Alto, California 94304
(650) 493-9300
</TABLE>
------------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
------------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price Fee(2)
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par
value................. 5,750,000 $11.00 $63,250,000 $17,583.50
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the amount of registration
fee pursuant to Rule 457(c) under the Securities Act of 1933.
(2) $15,985 of the registration fee was previously paid by the registrant in
connection with the filing of the Registration Statement on April 26,
1999. $1,598.50 was previously paid by the registrant in connection with
the filing of Amendment No. 2 on June 7, 1999.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Company shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts are estimated
except the Securities and Exchange Commission and NASD. All of the expenses
below will be paid by the Company.
<TABLE>
<CAPTION>
Item
----
<S> <C>
Registration fee................................................... $ 17,583
NASD filing fee.................................................... 6,250
Nasdaq National Market listing fee................................. 50,000
Blue sky fees and expenses......................................... 10,000
Printing and engraving expenses.................................... 100,000
Legal fees and expenses............................................ 250,000
Accounting fees and expenses....................................... 150,000
Transfer Agent and Registrar fees.................................. 5,000
Miscellaneous...................................................... 66,167
--------
Total............................................................ $700,000
========
</TABLE>
Item 14. Indemnification of Directors and Officers.
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that, except to the extent prohibited by the Delaware
General Corporation Law (the "DGCL"), the Company's directors shall not be
personally liable to the Company or its stockholders for monetary damages for
any breach of fiduciary duty as directors of the Company. Under the DGCL, the
directors have a fiduciary duty to the Company which is not eliminated by this
provision of the Certificate and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of nonmonetary relief will remain
available. In addition, each director will continue to be subject to liability
under the DGCL for breach of the director's duty of loyalty to the Company, for
acts or omissions which are found by a court of competent jurisdiction to be
not in good faith or involving intentional misconduct, for knowing violations
of law, for actions leading to improper personal benefit to the director, and
for payment of dividends or approval of stock repurchases or redemptions that
are prohibited by DGCL. This provision also does not affect the directors'
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws. The Company has obtained liability
insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this
provision shall not eliminate or limit the liability of a director: (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest
extent permitted by Section 102(b)(7) of the DGCL and provides that the Company
shall fully indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the
fact that such person is or was a director or officer of the Company, or is or
was serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
II-1
<PAGE>
The Company, with the approval of the Board of Directors, intends to obtain
directors' and officers' liability insurance prior to the effectiveness of this
offering. In addition, the Company intends to enter into indemnification
agreements with each of its directors and executive officers, a form of which
is filed as Exhibit 10.20 hereto.
There is no pending litigation or proceeding involving any director,
officer, employee or agent of the Company in which indemnification will be
required or permitted. Moreover, the Company is not aware of any threatened
litigation or proceeding that might result in a claim for such indemnification.
The Company believes that the foregoing indemnification provisions and
agreements are necessary to attract and retain qualified persons as directors
and executive officers.
The Underwriting Agreement (the form of which is filed as Exhibit 1.1
hereto) provides for indemnification by the Underwriters of the Company and its
officers and directors, and by the Company of the Underwriters, for certain
liabilities arising under the Securities Act or otherwise.
Item 15. Recent Sales of Unregistered Securities.
The following is a summary of transactions by the Company since the
Company's inception in September 1996 involving sales of the Company's
securities that were not registered under the Securities Act. Prior to the
Company's incorporation in Delaware in January 1998, it had been operating as a
sole proprietorship.
On January 20, 1998, we issued an aggregate of 4,897,500 shares of Common
Stock at $.01 per share to certain employees, consultants and other individual
investors.
On May 1, 1998, we granted a warrant to a lender to purchase up to 4,700
shares of Series A Preferred Stock at $0.40 per share.
In October 1998, we issued an aggregate of 307,875 shares of Common Stock
at $.05 per share to Thomas Bruggere.
In November 1998, we issued an aggregate of 1,500,000 shares of Common
Stock at $.07 per share to John Payne.
In December 1998, we issued an aggregate of 186,000 shares of Common Stock
at $.07 per share to Thomas Bruggere.
In December 1998, we issued 15,000 shares of Common Stock to Gregory Deeter
in exchange for all rights and goodwill in connection with the Stamps.com
domain name.
In January and February of 1998, we issued an aggregate of 3,762,500 shares
of our Series A Redeemable Preferred Stock to certain accredited investors for
an aggregate offering price of $1,505,000, or $0.40 per share, less $42,000 in
offering expenses.
In August, October and November of 1998, we issued an aggregate of
6,020,000 shares of Series B Redeemable Preferred Stock upon the exercise of
warrants to certain accredited investors for an aggregate offering price of
$4,515,000.50, or $0.75 per share.
In February and March of 1999, we issued an aggregate of 5,464,486 shares
of Series C Redeemable Preferred Stock to certain accredited investors for an
aggregate offering price of $30,000,028, or $5.49 per share, less $1,645,000 in
offering expenses.
II-2
<PAGE>
From January 1998 to June 1999, we have granted options to purchase an
aggregate of 5,430,421 shares of common stock to our directors, executive
officers, employees and consultants at a weighted exercise price of $0.84.
The foregoing transactions were effected under Section 4(2) of the
Securities Act.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
The following Exhibits are attached hereto and incorporated herein by
reference:
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1** Second Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Proposed Amended and Restated Certificate of Incorporation of the
Registrant.
3.3** Bylaws of the Registrant.
3.4** Proposed Bylaws of the Registrant.
4.1** See Exhibit 3.1, 3.2 and 3.3 for provisions of the Registrant's
Certificate of Incorporation and Bylaws defining the rights of holders
of the Registrant's common stock. See Exhibit 10.3 for the rights of
certain holders of registration rights.
4.2* Specimen common stock certificate.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1** Series A Stock Purchase Warrant dated May 1, 1998 between the
Registrant and Silicon Valley Bank.
10.2** Amended and Restated Investors' Rights Agreement dated February 17,
1999 between the Registrant and the investors named therein.
10.3** Patent Assignment from Mohan P. Ananda to the Registrant dated January
20, 1998.
10.4** Assignment and License Agreement between the Registrant and Mohan P.
Ananda dated January 20, 1998.
10.5** Employment Offer Letter dated October 29, 1998 by and between the
Registrant and John M. Payne.
10.6** Employment Agreement dated January 20, 1998 by and between the
Registrant and Mohan P. Ananda.
10.7** 1998 Stock Plan and Forms of Notice of Grant and Stock Option
Agreement.
10.8** 1999 Stock Incentive Plan.
10.9** 1999 Employee Stock Purchase Plan
10.10** Form of Indemnification Agreement between the Registrant and its
directors and officers.
10.11** Lease Agreement dated August 27, 1998 between the Registrant and
Spieker Properties, L.P. and Amendment No. One dated January 8, 1999.
10.12+ Advertising Insertion Order dated December 16, 1998 between the
Registrant and America Online, Inc.
10.13** Master Lease Agreement between the Registrant and FirstCorp dated June
5, 1998.
10.14** Quick Start Loan and Security Agreement dated May 1, 1998 between the
Registrant and Silicon Valley Bank.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.15** Employment Offer Letter dated August 7, 1998 between the Registrant
and John W. LaValle.
10.16** Consulting Agreement dated February 1, 1999 between the Registrant and
Loren Smith.
10.17** Lease dated April 12, 1999 between the Registrant and Spieker
Properties, L.P.
10.18+ Sponsorship Agreement dated May 14, 1999 between Registrant and
Intuit, Inc.
10.19+ Distributor Agreement dated March 30, 1999 between Registrant and
Westvaco.
10.20+ Distributor Agreement dated January 15, 1999 between Registrant and
Office Depot, Inc.
10.21+ Distributor Agreement dated March 31, 1999 between Registrant and
Seiko Instruments USA, Inc.
10.22+ Distributor Agreement dated March 30, 1999 between Registrant and
Avery Dennison Office Products Company.
10.23+ Distributor Agreement dated March 11, 1999 between Registrant and
Dymo-Costar Corporation.
10.24** Series A Preferred Stock and Warrant Purchase Agreement dated February
26, 1998 between Registrant and certain investors.
10.25** Amended and Restated Voting Agreement dated February 17, 1999 between
Registrant and certain investors.
10.26** Separation Agreement and Release dated May 13, 1999 between Registrant
and Mohan Ananda.
10.27** License Agreement dated May 13, 1999 between Registrant and Mohan
Ananda.
10.28** Series C Preferred Stock Purchase Agreement dated February 17, 1999
between Registrant and certain investors.
10.29** Amendment Letter to AOL dated June 4, 1999.
23.1* Consent of Brobeck, Phleger & Harrison LLP (Included in Exhibit 5.1
hereto).
23.2** Consent of Arthur Andersen LLP.
24.1** Power of Attorney (Included on signature pages hereto).
27.1** Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed by the registrant with the Commission.
+ Confidential treatment is requested for certain confidential portions of
this exhibit pursuant to Rule 406 under the Securities Act. In accordance
with Rule 406, these confidential portions have been omitted from this
exhibit and filed separately with the Commission.
(b) Financial Statement Schedules
All such Schedules have been omitted because the information required to be
set forth therein is not applicable or is shown in the financial statements or
notes thereto.
Item 17. Undertakings.
The undersigned Company hereby undertakes to provide to the Underwriters at
the closing specified in the Underwriting Agreements, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
II-4
<PAGE>
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit, or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus as filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by us pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we have duly
caused this Amendment No. 3 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Santa
Monica, State of California, on the 14th day of June, 1999.
STAMPS.COM INC.
By: /s/ John M. Payne
-----------------------------------
John M. Payne
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement on Form S-1 has been signed by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John M. Payne Chief Executive Officer, June 14, 1999
____________________________________ President and Director
John M. Payne (Principal Executive
Officer)
/s/ John W. LaValle Chief Financial Officer, June 14, 1999
____________________________________ Senior Vice President of
John W. LaValle Operations and Secretary
(Principal Financial and
Accounting Officer)
Thomas H. Bruggere* Chairman of the Board of June 14, 1999
____________________________________ Directors
Thomas H. Bruggere
Mohan P. Ananda* Director June 14, 1999
____________________________________
Mohan P. Ananda
David C. Bohnett* Director June 14, 1999
____________________________________
David C. Bohnett
Jeffrey J. Brown* Director June 14, 1999
____________________________________
Jeffrey J. Brown
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Thomas N. Clancy* Director June 14, 1999
____________________________________
Thomas N. Clancy
G. Bradford Jones* Director June 14, 1999
____________________________________
G. Bradford Jones
Marvin Runyon* Director June 14, 1999
____________________________________
Marvin Runyon
Loren E. Smith* Director June 14, 1999
____________________________________
Loren E. Smith
</TABLE>
* Power of Attorney
By: /s/ John W. LaValle
----------------------------
John W. LaValle
Attorney-in-fact
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1** Second Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Proposed Amended and Restated Certificate of Incorporation of the
Registrant.
3.3** Bylaws of the Registrant.
3.4** Proposed Bylaws of the Registrant.
4.1** See Exhibit 3.1, 3.2 and 3.3 for provisions of the Registrant's
Certificate of Incorporation and Bylaws defining the rights of holders
of the Registrant's common stock. See Exhibit 10.3 for the rights of
certain holders of registration rights.
4.2* Specimen common stock certificate.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1** Series A Stock Purchase Warrant dated May 1, 1998 between the
Registrant and Silicon Valley Bank.
10.2** Amended and Restated Investors' Rights Agreement dated February 17,
1999 between the Registrant and the investors named therein.
10.3** Patent Assignment from Mohan P. Ananda to the Registrant dated January
20, 1998.
10.4** Assignment and License Agreement between the Registrant and Mohan P.
Ananda dated January 20, 1998.
10.5** Employment Offer Letter dated October 29, 1998 by and between the
Registrant and John M. Payne.
10.6** Employment Agreement dated January 20, 1998 by and between the
Registrant and Mohan P. Ananda.
10.7** 1998 Stock Plan and Forms of Notice of Grant and Stock Option
Agreement.
10.8** 1999 Stock Incentive Plan.
10.9** 1999 Employee Stock Purchase Plan
10.10** Form of Indemnification Agreement between the Registrant and its
directors and officers.
10.11** Lease Agreement dated August 27, 1998 between the Registrant and
Spieker Properties, L.P. and Amendment No. One dated January 8, 1999.
10.12+ Advertising Insertion Order dated December 16, 1998 between the
Registrant and America Online, Inc.
10.13** Master Lease Agreement between the Registrant and FirstCorp dated June
5, 1998.
10.14** Quick Start Loan and Security Agreement dated May 1, 1998 between the
Registrant and Silicon Valley Bank.
10.15** Employment Offer Letter dated August 7, 1998 between the Registrant
and John W. LaValle.
10.16** Consulting Agreement dated February 1, 1999 between the Registrant and
Loren Smith.
10.17** Lease dated April 12, 1999 between the Registrant and Spieker
Properties, L.P.
10.18+ Sponsorship Agreement dated May 14, 1999 between Registrant and
Intuit, Inc.
10.19+ Distributor Agreement dated March 30, 1999 between Registrant and
Westvaco.
10.20+ Distributor Agreement dated January 15, 1999 between Registrant and
Office Depot, Inc.
10.21+ Distributor Agreement dated March 31, 1999 between Registrant and
Seiko Instruments USA, Inc.
10.22+ Distributor Agreement dated March 30, 1999 between Registrant and
Avery Dennison Office Products Company.
10.23+ Distributor Agreement dated March 11, 1999 between Registrant and
Dymo-Costar Corporation.
10.24** Series A Preferred Stock and Warrant Purchase Agreement dated February
26, 1998 between Registrant and certain investors.
10.25** Amended and Restated Voting Agreement dated February 17, 1999 between
Registrant and certain investors.
10.26** Separation Agreement and Release dated May 13, 1999 between Registrant
and Mohan Ananda.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.27** License Agreement dated May 13, 1999 between Registrant and Mohan
Ananda.
10.28** Series C Preferred Stock Purchase Agreement dated February 17, 1999
between Registrant and certain investors.
10.29** Amendment Letter from AOL dated June 4, 1999
23.1* Consent of Brobeck, Phleger & Harrison LLP (Included in Exhibit 5.1
hereto).
23.2** Consent of Arthur Andersen LLP.
24.1** Power of Attorney (Included on signature pages hereto).
27.1** Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed by the registrant with the Commission.
+ Confidential treatment is requested for certain confidential portions of
this exhibit pursuant to Rule 406 under the Securities Act. In accordance
with Rule 406, these confidential portions have been omitted from this
exhibit and filed separately with the Commission.
<PAGE>
EXHIBIT 10.12
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
AOL ADVERTISING INSERTION ORDER
-------------------------------
by and between
AMERICA ONLINE, INC.
and
STAMPS.COM INC.
Dated
December 16, 1998
- --------------------------------------------------------------------------------
<PAGE>
==============================================
AOL ADVERTISING INSERTION ORDER [LOGO OF AMERICA ONLINE]
==============================================
Contract #:_______________________
AOL Salesperson:__________________
Sales Coordinator:________________ Credit Approval Received
Date:_____________________________
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Advertiser Advertising Agency
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Contact Person Doug Walner
- ----------------------------------------------------------------------------------------------------------
Company Name Stamps.com, Inc.
- ----------------------------------------------------------------------------------------------------------
Address - Line 1 2900 31st St., Suite 150
- ----------------------------------------------------------------------------------------------------------
Address - Line 2 Santa Monica, CA 90405
- ----------------------------------------------------------------------------------------------------------
Phone # 310-450-1444
- ----------------------------------------------------------------------------------------------------------
Fax #
- ----------------------------------------------------------------------------------------------------------
Email [email protected]
- ----------------------------------------------------------------------------------------------------------
SIC Code
- --------------------------------------------------------------------------
Advertiser IAB Category
- --------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Billing Information
- ----------------------------------------------------------------------------------------------------------
Send Invoices to (choose one): Advertiser [_] Agency
- ----------------------------------------------------------------------------------------------------------
Advertiser or Agency Billing Same as above
Contact Person
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Company Name
- ----------------------------------------------------------------------------------------------------------
Billing Address - Line 1
- ----------------------------------------------------------------------------------------------------------
Billing Address - Line 2
- ----------------------------------------------------------------------------------------------------------
Billing Phone #
- ----------------------------------------------------------------------------------------------------------
Billing Fax #
- ----------------------------------------------------------------------------------------------------------
Billing Email Address
- ----------------------------------------------------------------------------------------------------------
P.O. #, if applicable
- ----------------------------------------------------------------------------------------------------------
</TABLE>
1. Guaranteed Payments. Advertiser shall make the following payments to AOL:
a. [***];
---
b. [***];
---
c. [***]; and
---
d. Subject to the provisions of Section 2 of Exhibit A, [***].
---
2. Additional Payments. See Sections 3 and 8 of Exhibit A, and Section 9 of
Exhibit E attached hereto.
3. Late Payments; Wired Payments. All amounts owed hereunder not paid when due
-----------------------------
and payable will bear interest from the date such amounts are due and
payable at the prime rate in effect at such time. All payments required
hereunder will be paid in immediately available, non-refundable U.S. funds
wired to the "America Online" account, Account Number 323070752 at The Chase
Manhattan Bank, 1 Chase Manhattan Plaza, New York, NY 10081 (ABA:
021000021). In the event of nonpayment on any of the dates specified above,
Advertiser shall have an additional five (5) business days within which to
make such payment and if Advertiser does not make the required payment in
such additional five (5) business days, AOL reserves the right to
immediately terminate this Insertion Order Agreement with written notice to
Advertiser.
- --------------------------------------------------------------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
<TABLE>
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Inventory Type (choose one): [_] AOL Service only [_] AOL Affiliate only (e.g. AOL.com)
[_] AOL Service & AOL Affiliate
- ----------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
AOL Service
- ------------------------------------------------------------------------------------------------------------------------------------
Inventory
- ------------------------------------------------------------------------------------------------------------------------------------
AOL Inventory/Demographic* Display Display # of Ad Slots Total Total
Purchased Start Date Stop Ad Type Purchased Gross Impressions
Date Price
- ------------------------------------------------------------------------------------------------------------------------------------
PHASE I PROMOTIONS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Run of E-mail: Zip Code Area 1 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
Run of E-mail: Zip Code Area 2 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
Run of E-mail: Zip Code Area 3 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
Run of Service: Zip Code Area 1 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
Run of Service: Zip Code Area 2 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
Run of Service: Zip Code Area 3 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
Computing Download Software: [***] [***] Banner Rotation [***] [***]
Zip Code Targeted --- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PHASE II PROMOTIONS [***] [***]
See Exhibit B attached hereto --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
* Attach completed AOL Demographic Phase I $193,000 [***]
Profile Worksheet Promotions ---
Total:
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Art
- -------------------------------------------------------------------------------
All necessary artwork and active URL's must be provided by advertiser
3 business days prior to start date.
Artwork required from Advertiser/Agency:
---------------------------------------
<TABLE>
<S> <C> <C>
[_] 234x60 IAB Standard /10k Max [_] 145x30 Old Standard /10k Max [_] 120x60 Shopping/10k Max
[_] 175x45 Chat/Mail in-box/10k Max [_] 197x40 PF Area/10k Max [_] Special_______
</TABLE>
* Static banners only, no animation*
Linking URL: The HTTP/URL address to be connected to the Advertisement shall be:
http://www.stamps.com, or any other HTTP/URL agreed upon by Advertiser and AOL
(the "Affiliated Advertiser Site"). Advertiser shall be responsible for any
hosting or communication costs associated with the Affiliated Advertiser Site.
Please send artwork and URL to (choose one):
[_] [email protected] [_] [email protected]
------------------ ------------------
AOL reserves the right to immediately cancel any advertising flight in the event
of a material change to the nature or content of the site linked to the
Advertisement.
- --------------------------------------------------------------------------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
2
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
AOL Affiliate (e.g., AOL.com)
- ------------------------------------------------------------------------------------------------------------------------------------
Inventory
- ------------------------------------------------------------------------------------------------------------------------------------
AOL Affiliate Display Display # of Ad Slots Total Total
Inventory/Demographic* Start Stop Ad Type Purchased Gross Impressions
Purchased Date Date Price
- ------------------------------------------------------------------------------------------------------------------------------------
PHASE I PROMOTIONS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Digital City - Market Selection [***] [***] Banner [***] [***]
--- --- Rotation --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
PHASE II PROMOTIONS [***] [***]
See Exhibit B attached hereto --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------
* See attached package description for PHASE I $7,000 [***]
any AOL.com package purchases PROMOTIONS ---
TOTAL:
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Art
- -------------------------------------------------------------------------------
All necessary artwork and active URL's must be provided by advertiser
3 business days prior to start date.
Artwork required from Advertiser/Agency:
---------------------------------------
<TABLE>
<S> <C>
[_] 468x60 NF Reviews, Search Terms, My News & Hometown/10k Max/animation OK
[_] 100x70 AOL.com Home Page/3k Max/No animation [_] 120x60 NF Home Page/2k Max/No animation
[_] 120x60 Shopping/4k Max/No animation [_] 234x60 NF Kids Only & Hometown/5k Max/animation OK
[_] 120x60 Instant Messenger/7.5k Max/animation OK
</TABLE>
Linking URL: The HTTP/URL address to be connected to the Advertisement shall
be the same address as that of the Advertiser Site.
Please send artwork and URL to (choose one):
[_] [email protected] [_] [email protected]
------------------ ------------------
AOL reserves the right to immediately cancel any advertising flight in the event
of a material change to the nature or content of the site linked to the
Advertisement.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Advertising Purchase Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Total Price Total Impessions CPM
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
AOL Networks [***] [***]
--- ---
- ---------------------------------------------------------------------------------------------------------
AOL Affiliate [***] [***]
--- ---
- ---------------------------------------------------------------------------------------------------------
Total Purchase Price [***] [***] [***]
--- --- ---
- ------------------------------------------------------------------------------------------------------------------------------------
(Less Agency Discount) N/A N/A
- ------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Net Purchase Price Total Impressions
---------------------------------------------------------------------------------------------------
$1,900,350 [***]
---
---------------------------------------------------------------------------------------------------
</TABLE>
The products and/or services to be offered or promoted by Advertiser in the
Advertisements are as follows: online postal services (i.e., services associated
with the online sale of postage stamps and ancillary products and services
related thereto) (the "Advertiser Products").
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
3
<PAGE>
4. Impressions Commitment. Any guarantees are to impressions (as measured by
----------------------
AOL in accordance with its standard methodologies and protocols), not
"click-throughs." In the event there is (or will be in AOL's reasonable
judgment) a shortfall in impressions as of the end of a display period (a
"Shortfall"), such Shortfall shall not be considered a breach of the
Agreement by AOL; instead, AOL will provide Advertiser, as its sole remedy,
with "makegood" impressions through advertisement placements on the AOL
Service. In connection with the foregoing, AOL shall use reasonable efforts
to ensure that any makegood impressions shall be provided to Advertiser
through promotions that are comparable in nature to the appropriate type of
promotions through which the impressions should have been delivered (e.g.,
if there is a Shortfall that should have been delivered through Level A
Promotions, AOL shall use reasonable efforts to make up such impressions
with other Level A Promotions). In the event that AOL is unable to provide
makegood impressions through the appropriate comparable promotions, AOL
shall provide such impressions through other types of promotions as follows:
[***] AOL reserves the right to alter Advertiser flight dates to accommodate
---
trafficking needs or other operational needs. In such cases, AOL will make
available to Advertiser reasonably equivalent flight(s).
5. Navigation. Advertiser shall provide continuous navigational ability for
-----------
AOL users to return to an agreed-upon point on the AOL Service (for which
AOL shall supply the proper address) from the Affiliated Advertiser Site
(e.g., the point on the AOL Service from which the Affiliated Advertiser
Site is linked).
6. Term. Unless otherwise terminated as provided herein, the term hereof shall
----
begin on the first Display Start Date and shall expire on the last Display
Stop Date.
AUTHORIZED SIGNATURES
In order to bind the parties to this Insertion Order Agreement, their duly
authorized representatives have signed their names below on the dates indicated.
This Agreement (including Exhibits A, B, C, D and E attached hereto and
incorporated by reference) shall be binding on both parties when signed on
behalf of each party and delivered to the other party (which delivery may be
accomplished by facsimile transmission of the signature pages hereto).
AOL ADVERTISER
By: /S/ David M. Colburn By: /S/ John M. Payne
---------------------------------- --------------------------------
(signature) (signature)
Print Name: David M. Colburn Print Name: John M. Payne
-------------------------- ------------------------
Title: SVP Business Affairs Title: Pres/CEO
------------------------------- -----------------------------
(Print or Type) (Print or Type)
Date: 12/16/98 Date: 12/15/98
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
4
<PAGE>
EXHIBIT A
---------
1. Authorization to Conduct Business. Advertiser hereby represents and
---------------------------------
warrants that it has obtained all necessary permits, licenses or other
authorizations from the United States Postal Service (the "USPS") which
permits Advertiser to conduct a beta test of the Advertiser Products by
advertising and offering for sale the Advertiser Products on the AOL
Service during the Phase I Promotions.
2. Phased Roll-Out of Promotions. The Advertisements provided hereunder shall
-----------------------------
be provided by AOL in accordance with the Insertion Order provided above,
subject to the following:
a. At least three (3) days prior to the Phase I Promotions Display Stop
Date, Advertiser shall provide AOL with a written notice which shall
contain the following:
i. a representation by Advertiser that Advertiser has obtained all
necessary permits, licenses or other authorizations from the USPS
which permits Advertiser to engage in a full scale rollout and
sale of the Advertiser Product through the AOL Service (the "USPS
Authorization"), and
ii. an election by Advertiser to receive the Phase II Promotions.
Provided, however, that if prior to the end of the Phase I
Promotions Advertiser shall receive USPS Authorization to promote
and sell the Advertiser Products on a full scale basis through
the AOL Service, Advertiser shall provide AOL with a written
notice (provided at least two (2) days prior to the date on which
Advertiser wishes to begin receiving the Phase II Promotions)
(the "Acceleration Notice"), containing (A) the representation
required pursuant to Section 2(a)(i) of this Exhibit A, and (B)
an election by Advertiser to receive the Phase II Promotions. In
such event, the parties hereto shall create a new insertion order
which will indicate the new Display Start Date of the Phase II
Promotions, which insertion order shall be attached hereto as an
Exhibit. Notwithstanding the foregoing, (1) upon receipt of an
Acceleration Notice, AOL shall only be obligated to place
Advertisements for which Advertiser has already provided the
necessary creative art work and related materials to AOL, and
which requires less than two (2) days of advance notice to place
on the AOL Service; to the extent that any Advertisement required
to be placed during the Phase II Promotions shall require more
than two (2) days of advance notice to be placed on the AOL
Service, AOL shall provide such Advertisements within thirty (30)
days after receipt of the Acceleration Notice; (2) AOL shall not
be obligated to provide the Phase II Promotions unless and until
Advertiser makes the representation required pursuant to Section
2(a)(i) of this Exhibit A; and (3) if Advertiser does not receive
the USPS Authorization prior to June 30, 1999, notwithstanding
anything otherwise contained herein, either party shall have the
right to immediately terminate this Insertion Order Agreement
without any further obligation or liability of any kind (other
than any liability incurred by either party prior to such date)
to the other party on account of such termination. In the event
of such termination, Advertiser shall have no further payment
obligations under this Insertion Order Agreement other than
payment obligations due and payable at the time of termination.
3. Additional Promotions.
---------------------
a. Phase I. During the Phase I Promotions, from time to time, Advertiser
--------
shall have the right to purchase up to [***] from AOL subject to the
---
following restrictions:
i. Advertiser shall purchase such additional impressions [***]
---
pursuant to an AOL Insertion Order Agreement entered into by
Advertiser and AOL (an "Insertion Order") which will be attached
hereto as an exhibit,
ii. Advertiser shall submit the relevant Insertion Order to AOL at
least five (5) days prior to the date on which Advertiser wishes
to begin receiving impressions; and
iii. AOL's obligation to deliver any additional impressions pursuant
to this Section 3 shall be subject to the availability of
advertising inventory on the AOL Service from which AOL can
deliver such additional impressions.
b. Phase II. During the Phase II Promotions, from time to time,
---------
Advertiser shall have the right to purchase up to [***] from AOL
---
subject to the restrictions contained in Section 3(a)(i), (ii) and
(iii). Notwithstanding the foregoing, in the event that the
transaction between AOL and Advertiser which is contemplated under
Section 9 hereof is not consummated, or if Advertiser expends less
than the amounts earmarked for such transactions, Advertiser will use
the funds earmarked for such transaction (or any remaining portion
thereof) to purchase up to [***] from AOL subject to the provisions of
---
Section 3(a)(i), (ii) and (iii).
4. Product Parity. Advertiser will ensure that the prices, terms and
--------------
conditions for the Advertiser Products in the Affiliated Advertiser Site
are no less favorable than the prices, terms and conditions on which the
Advertiser Products or substantially similar products are offered by or on
behalf of Advertiser through any other distribution channels.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
5
<PAGE>
5. Special Offers/Member Benefits. Advertiser will generally promote through
------------------------------
the Affiliated Advertiser Site any special or promotional offers made
available by or on behalf of Advertiser through any other distribution
channels directed primarily at a consumer audience (i.e., non-corporate
customers). Advertiser shall not be required to comply with the foregoing
provision if compliance therewith would result in a breach by Advertiser of
any contractual arrangements with third parties, and it is understood by
the parties that the foregoing shall not prevent Advertiser from providing
one time special offers which may not be appropriate for AOL users. In
addition, Advertiser shall promote (a) at least [***] to AOL users (the
---
"AOL Special Offers") and (b) at least [***] in connection with the Stamp
---
Days Promotions described in Section 10 hereof (the "Stamp Days Promotion
Special Offer"). AOL Special Offers made available by Advertiser shall
provide a substantial benefit to AOL users as reasonably determined by
Advertiser, either by [***]. Advertiser shall have the right to promote
---
special or promotional offers to AOL users which in addition to the
promotion of Advertiser, may promote other third parties; provided that,
(i) [***], (ii) [***], and (iii) such special or promotional offers shall
--- ---
[***]. Advertiser will provide AOL with reasonable prior notice of the AOL
---
Special Offers and the Stamp Days Promotion Special Offer so that AOL can
market the availability of such special offers in the manner AOL deems
appropriate in its editorial discretion.
6. Advertiser Promotion of AOL. [***] within Advertiser's web sites on the
--------------------------- ---
World Wide Web portion of the Internet that are not co-branded with a third
party (each an "Advertiser Web Site"), at AOL's option, Advertiser shall
include one of the following (each an "AOL Promo"): (i) [***] to promote
---
such AOL products or services as AOL may designate (for example, the
America Online(R) brand service, the CompuServe(R) brand service, the
AOL.com site, any of the Digital City services or the AOL Instant Messenger
service); or (ii) [***] through which users can obtain promotional
---
information about AOL products or services designated by AOL and, at AOL's
option, download or order the then-current version of client software for
such AOL products or services. AOL will provide the creative content to be
used in the AOL Promo (including designation of links from such content to
other content pages). To the extent Advertiser notifies AOL of reasonable
complaints or concerns regarding the AOL Promo or any other content or
materials linked thereto or associated therewith ("Objectionable AOL
Content"), AOL will, to the extent such Objectionable AOL Content is within
AOL's control, use commercially reasonable efforts to respond in good faith
to such complaints or concerns. Advertiser shall use reasonable efforts to
post (or update, as the case may be) the creative content supplied by AOL
within the spaces for the AOL Promos within five days of its receipt of
such content from AOL. In the event that AOL elects to serve the AOL Promos
to the Advertiser Web Site from an ad server controlled by AOL or its
agent, Advertiser shall take all reasonable operational steps necessary to
facilitate such ad serving arrangement including, without limitation,
inserting HTML code designated by AOL on the pages of the Advertiser Web
Site on which the AOL Promos will appear. In addition, in Advertiser's
television, radio, print and "out of home" (e.g., buses and billboards)
advertisements and in any publications, programs, features or other forms
of media over which Advertiser exercises at least partial editorial
control, Advertiser will include specific references or mentions (verbally
where possible) of the availability of the Affiliated Advertiser Site
through the AOL Service, [***] (by way of site name, related company name,
---
URL or otherwise). Without limiting the generality of the foregoing, (i)
Advertiser's listing of the "URL" for any Advertiser Web Site will be
accompanied by an equally prominent listing of the "keyword" term on AOL
for the Affiliated Advertiser Site (if any) and (ii), Advertiser shall use
commercially reasonable efforts to promote any special offers offered on
the AOL Service through its offline promotional efforts (e.g., cable and or
television advertising buys). In connection with the foregoing, AOL will
[***] for any new subscribers to the AOL Service who subscribe to the AOL
---
Service through the AOL Promo.
7. Functionality of Advertiser Product. In the event that any Advertiser
------------------------------------
Products (or any software associated therewith) that are promoted and sold
through the Advertisements result in a poor user experience for a
significant number of AOL users (e.g., poor user interface, incompatible
software, unusable software, software which contain bugs or viruses which
substantially reduces the usability of the Advertiser Product, or software
which does not perform the functions for which it is advertised), and
provided that Advertiser does not remedy such poor user experience within
[***] after written notice from AOL [***] AOL shall have the right to
--- ---
decrease or cease the placement of the Advertisements, and in such event,
AOL will be relieved of the proportionate amount of any Advertisement
placement commitments made to Advertiser by AOL hereunder corresponding to
such decrease in placements), AOL shall have the right to terminate this
Insertion Order Agreement upon [***] written notice to Advertiser. In the
---
event of such termination, Advertiser shall have no further payment
obligations under this Insertion Order Agreement other than payment
obligations due and payable at the time of termination.
8. Distribution of Advertiser Software with AOL Store Fulfillment Packages.
-----------------------------------------------------------------------
AOL will facilitate the distribution of the software developed by
Advertiser which is necessary for the operation of Advertiser's electronic
stamp product and enables end-users to purchase postal services
electronically through Advertiser's network (the "Advertiser Software")
through a third party package fulfillment distributor (the "Distributor")
in accordance with the terms and conditions of the agreement attached
hereto as Exhibit D. Advertiser will pay the Distributor up to [***] (the
---
"Set-Aside Payment") in consideration for the distribution of the
Advertiser Software. [***].
---
9. Distribution of Advertiser Software with AOL 4.0 CD-ROMS. AOL will
--------------------------------------------------------
distribute the Advertiser Software of Advertiser in accordance with the
provisions of Exhibit E attached hereto.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
6
<PAGE>
10. Stamp Days Promotion/Rainman Production. With respect to the Special
---------------------------------------
Campaign Promotion: Stamp/Postage Days listed on Exhibit B (each a "Stamp
Day Promotion" and collectively "Stamp Day Promotions"), AOL will work with
Advertiser to create various editorial and programming content related to
the Advertiser Products. AOL shall be responsible for the creation of a
rainman area (the " Stamp Rainman Area") on the AOL Service to promote
Stamp Days. Advertiser shall be responsible for providing AOL with content
and promotions to be promoted by AOL during Stamp Days. At Advertiser's
option, the Stamp Days promotion may occur over a period of three (3)
contiguous days or three (3) separate and unrelated days and Advertiser
shall provide AOL with no less than forty five (45) days notice prior to
the time that Advertiser wishes to receive the Stamp Days promotion or a
Stamp Day promotion. In addition to the Stamp Rainman Area, AOL will
program and create at least one other rainman area for Advertiser which
will contain such content and promotions as mutually agreed upon by the
parties hereto (the "Additional Rainman Area" and together with the Stamp
Rainman Area the "Rainman Areas"). AOL will incur the expense of creating
the Rainman Areas up to [***]. If the costs associated with the Rainman
---
Areas exceed [***], Advertiser shall be responsible for such excess
---
amounts.
11. Keyword: Stamps. AOL will create a "referee" screen in the appropriate
----------------
areas of the AOL Service to which Keyword Stamp or Stamps will link. Such
"referee" screen will contain programming created by AOL in its sole
discretion, provided that, AOL shall provide Advertiser with a button or
link on such screen which will link to the Advertiser Site or any other
area agreed upon by the parties and Advertiser shall be the only provider
of online postal services (except for specialty or collectible non-
electronically issued postage stamp providers) to be provided with a button
or link on such "referee" screen. In addition to the foregoing, subject to
the provisions hereof, Advertiser shall have the right to use the AOL
Keyword Term Stamps.com and [***] additional AOL Keyword Term as mutually
---
agreed upon by the parties.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
7
<PAGE>
EXHIBIT B
---------
PHASE II PROMOTIONS
<TABLE>
<CAPTION>
Impressions Percent of Average CPM Total Cost
Carriage
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Level A -- Highly Targeted [***] [***] [***] [***]
--- --- --- ---
Level B - Targeted [***] [***] [***] [***]
--- --- --- ---
Level C -- Relevant Broad Reach [***] [***] [***] [***]
--- --- --- ---
Campaign Promotion: Stamp Days [***] [***] [***] [***]
--- --- --- ---
- -------------------------------------------------------------------------------------------------------------------
Total Campaign [***] [***] [***] $1,700,350
--- --- ---
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
Level A Promotions Type of Promotion
------------------ -------------------
AOL Network
[***] [***]
--- ---
AOL.com
[***]
---
CompuServe
----------
[***] [***]
--- ---
Level B Areas
-------------
AOL.com
[***] [***]
--- ---
Digital City
[***] [***]
--- ---
Level C Areas
-------------
AOL Network
[***] [***]
--- ---
AOL.com
[***] [***]
--- ---
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
8
<PAGE>
Special Campaign Promotion:
---------------------------
Stamp/Postage Days (3-day
--------------------------
promotion)
----------
Email
News
AOL Network
Remnant and Promotional Support
Vehicles
- ---------------------------------------------------------------------------
*Subject to Advertiser's compliance with all technical and programming
requirements (including quality assurance testing) of AOL.
**Advertiser will only be provided with these Promotions if the Phase II
Promotions [***]
---
*** List to include: mail, mailing, post, postal, postage, stamp, stamps
- ---------------------------------------------------------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
9
<PAGE>
EXHIBIT C
---------
AOL Advertising Standard Terms and Conditions
---------------------------------------------
1. Advertising Material/Display. Advertiser acknowledges that the sole
----------------------------
obligation of America Online, Inc. ("AOL") is to display an advertisement
or icon (the "Advertisement") from Advertiser which conforms to the
specifications set forth in the applicable Insertion Order Agreement which
has been executed by AOL and Advertiser (the "Insertion Order," and,
collectively with these Standard Terms and Conditions, the "Insertion Order
Agreement") through the standard narrowband U.S.-based America Online brand
service (excluding any sub-products, sub-services or third party areas
which may be offered therein) or such other U.S.-based AOL property as may
be expressly described as the site for placement in the Insertion Order
(the "AOL Service"). Subject to Advertiser's reasonable approval, AOL will
have the right to fulfill its promotional commitments with respect to the
Advertisements by providing Advertiser with comparable placements of the
Advertisements in alternative areas of the AOL Service. AOL reserves the
right to redesign or modify the organization, structure, "look and feel"
and other elements of the AOL Service (including any redesign of the
Workplace Business Services: Postage Category) at its sole discretion at
any time without prior notice (a "Redesign"). In the event such
modifications will materially and adversely affect the placement of the
Advertisement, AOL will work with Advertiser to display the Advertisement
in a comparable location and manner that is reasonably satisfactory to
Advertiser. Except as expressly provided in the Insertion Order, the
specific nature and positioning of the Advertisement will be as determined
by AOL in its editorial discretion. Advertiser agrees that AOL has the
right to market, display, perform, transmit and promote the Advertisement
through the AOL Service and in connection therewith, subject to the terms
and conditions hereof, Advertiser hereby grants to AOL a non-exclusive,
non-sublicensable (except to an Affiliate of AOL) and non-transferable
license to use the names specified by Advertiser from time to time which
Advertiser shall have a legal right to use (the "Advertiser Marks") in the
Advertisements and in connection with the advertising, marketing and
promotion of the Advertiser Products on the AOL Service. Additionally, AOL
shall have the right to use the Advertiser Marks in connection with the
distribution of the Advertiser Software in accordance with Exhibit E. AOL
hereby acknowledges and agrees that (i) except as set forth herein, AOL has
no rights, title or interest in or to the Advertiser Marks, (ii) AOL shall
not challenge Advertiser's exclusive rights in and to the Advertiser Marks,
(iii) AOL shall not apply for registration of the Advertiser Marks anywhere
in the world, (iv) AOL shall not alter any of the Advertiser Marks in any
way and shall use the Advertiser Marks exactly as provided by Advertiser,
(v) the use by AOL of the Advertiser Marks shall inure to the benefit of
Advertiser with respect to Advertiser's rights and ownership in and to the
Advertiser Marks, and (vi) Advertiser reserves all rights not expressly
granted to AOL hereunder in connection with the Advertiser Marks. AOL shall
use reasonable efforts to notify Advertiser promptly of any infringement of
any copyrights, trademarks, or other intellectual property or proprietary
rights relating to the Advertiser Software of which AOL is aware.
Advertiser may, in its sole discretion, take or not take whatever action it
believes is appropriate in connection with any such infringement. In the
event that AOL intends to use an Advertiser Mark in a manner which was not
previously approved by Advertiser, AOL shall provide notice to Advertiser
of its intended use of such Advertiser Mark, Advertiser shall then have
three (3) business days to respond to AOL's proposed use of such Advertiser
Mark, and if Advertiser does not respond in such three (3) day period,
AOL's use of such Advertiser Mark shall be deemed approved. Additionally,
Advertiser agrees that users of the AOL Service have the right to access
and use the Advertisement together with any content or materials linked to
the Advertisement (the "Advertiser Content"). The Advertiser Content (a)
shall not offer or promote any other products and/or services other than
those expressly provided for in the relevant Insertion Order, (b) will link
only to the site specified on the Insertion Order and (c) shall not (1)
disparage AOL; (2) promote any product or service which is reasonably
competitive with one or more of the principal products or services offered
through AOL's products and services (other than the Advertiser Products)
("Competitive Products") on any page of the Affiliated Advertiser Site
which is directly linked to the AOL Service; (3) be in contravention of
AOL's generally applicable advertising standards and practices, as such may
be modified by AOL from time to time; or (d) violate any applicable law,
regulation or third party right (including, without limitation, any
copyright, trademark, patent or other proprietary right). Additionally,
Advertiser shall consistently update the Advertiser Content and will
review, delete, edit, create, update and otherwise manage such content in
accordance with the terms of this Insertion Order Agreement. In no event
shall the Advertisement or the linked area state or imply that (i) the
Advertisement was placed by AOL or (ii) that AOL endorses Advertiser's
products or services. To the extent AOL notifies Advertiser of reasonable
complaints or concerns (e.g., from an AOL member) regarding the Advertiser
Content or any other content or materials linked thereto or associated
therewith ("Objectionable Content"), Advertiser will, to the extent such
Objectionable Content is within Advertiser's control, use commercially
reasonable efforts to respond in good faith to such complaints or concerns.
AOL may alter or shorten the flight dates set forth in the Insertion Order
if advertising materials required per the Insertion Order are not provided
in a timely manner, and Advertiser shall not be entitled to any refund or
proration for delays caused by Advertiser's failure to deliver such
materials.
2. Operations. Unless expressly provided for elsewhere in this Insertion Order
-----------
Agreement, AOL will have no obligation to provide any creative, design,
technical or production services to Advertiser ("Services"). Delivery by
AOL of any such Services shall be subject to (i) AOL's availability to
perform the requested work, (ii) execution by both parties of a separate
work order specifically outlining the Services to be provided and the fees
to be paid by Advertiser for such Services and (iii) payment in advance by
Advertiser of such fees. Advertiser will ensure that the Advertiser Content
and the site linked to the Advertiser Content are in compliance with AOL's
then-current, generally applicable technical standards and will take all
reasonable steps necessary to conform the Advertiser Content to the then-
existing technologies identified by AOL which are optimized for the AOL
Service (including, without limitation, any "quick checkout" tool which AOL
may implement to facilitate purchase of products by AOL users). In the
event that the Advertiser Content or the site linked to the Advertiser
Content fails to comply with AOL's generally applicable technical
standards, AOL shall have the right to cease or decrease the placement of
the Advertisements, and if Advertiser is unable to cure such non-compliance
within five business days after notice from AOL, AOL shall have the right
to terminate this Insertion Order Agreement. Additionally, AOL will be
entitled to discontinue links to Advertiser Content to the extent such
Advertiser Content will, in AOL's good faith judgment, adversely affect the
operations of the AOL Service. Advertiser will bear full responsibility for
all customer service, including without limitation, order processing,
billing, fulfillment, shipment, collection and other customer support
associated with any products or services offered, sold or licensed through
Advertiser's site, and AOL will have no obligations whatsoever with respect
thereto. Advertiser will take all steps necessary to ensure that any
contest, sweepstakes or similar promotion conducted or promoted through the
Advertiser Content complies with all applicable federal, state and local
laws and regulations.
3. Search Terms/Keywords. To the extent Advertiser is purchasing an
----------------------
Advertisement related to an Internet-based "search" term, Advertiser
represents and warrants that Advertiser has the legal rights necessary to
utilize such search term in connection with the Advertisement. Any
"keyword" terms for navigation from within the proprietary America Online
brand service ("AOL Keyword Terms") (as contrasted to Internet-based search
terms) which may be made available to Advertiser shall be (i) subject to
availability and (ii) limited to the combination of the keyword modifier
combined with a
10
<PAGE>
registered trademark of Advertiser. AOL reserves the right to revoke at any
time Advertiser's use of any AOL Keyword Terms which do not incorporate
registered trademarks of Advertiser. Advertiser acknowledges that its
utilization of any AOL Keyword Term will not create in it, nor will it
represent it has, any right, title or interest in or to such AOL Keyword
Term, other than the right, title and interest Advertiser holds in
Advertiser's registered trademark independent of the AOL Keyword Term.
4. Payment; Cancellation. Advertiser agrees to pay AOL for all advertising
---------------------
displayed in accordance with the agreed upon amounts and billing schedule
shown on the relevant Insertion Order. Advertising packages are
nonrefundable or proratable except to the extent otherwise expressly
contemplated hereunder. Should AOL fail to display the Advertisements in
accordance with the Insertion Order due to Advertiser's failure to comply
with any requirement of the Insertion Order or this Insertion Order
Agreement, Advertiser will remain liable for the full amount indicated on
the Insertion Order. In the event of a Redesign, if AOL and Advertiser
cannot reach agreement on a substitute placement, Advertiser shall have the
right to cancel the Advertisement upon thirty (30) days advance written
notice to AOL. In such case, Advertiser will only be responsible for the
pro-rata portion of payments attributable to the period from the
commencement of the Insertion Order Agreement through the effectiveness of
such cancellation (the "Pro Rata Payments"). AOL reserves the right to
cancel and remove at any time any Advertisement in the event that AOL
reasonably and in good faith believes that further display of the
Advertisement will expose AOL to liability or other adverse consequences.
In the event of such a cancellation, Advertiser will only be responsible
for the Pro-Rata Payments. Advertiser may not resell, trade, exchange,
barter or broker to any third-party any advertising space which is the
subject of this Insertion Order Agreement.
5. Usage Data. AOL will provide Advertiser with usage information related to
----------
the Advertisement in substance and form determined by AOL, consistent with
its then-standard reporting practices. Advertiser may not distribute or
disclose usage information to any third party without AOL's prior written
consent. Additionally, AOL will not disclose usage information to a third
party in a manner which connects Advertiser to such usage information.
6. Each party acknowledges that Confidential Information may be disclosed to
the other party during the course of this Insertion Order Agreement. Each
party agrees that it will take reasonable steps, at least substantially
equivalent to the steps it takes to protect its own proprietary
information, during the term of this Insertion Order Agreement, and for a
period of three years following expiration or termination of this Insertion
Order Agreement, to prevent the duplication or disclosure of Confidential
Information of the other party, other than by or to its employees or agents
who must have access to such Confidential Information to perform such
party's obligations hereunder, who will each agree to comply with this
Section 6. Notwithstanding the foregoing, either party may issue a press
release or other disclosure containing Confidential Information without the
consent of the other party, to the extent such press release or disclosure
is required by law, rule, regulation or government or court order. In such
event, the disclosing party will provide at least five (5) business days
prior written notice of such proposed disclosure to the other party.
Further, in the event such disclosure is required of either party under the
laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such party will (i) redact mutually
agreed-upon portions of this Insertion Order Agreement to the fullest
extent permitted under applicable laws, rules and regulations and (ii)
submit a request to such governing body that such portions and other
provisions of this Insertion Order Agreement receive confidential treatment
under the laws, rules and regulations of the Securities and Exchange
Commission or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other
applicable governing body. For the purposes hereof, "Confidential
Information" shall mean any information relating to or disclosed in the
course of the Insertion Order Agreement, which is or should be reasonably
understood to be confidential or proprietary to the disclosing party,
including, but not limited to, the material terms of this Insertion Order
Agreement, information about AOL users, technical processes and formulas,
source codes, product designs, sales, cost and other unpublished financial
information, product and business plans, projections, and marketing data.
"Confidential Information" will not include information (a) already
lawfully known to the receiving party and which the receiving party has a
reasonable basis to believe it may use or disclose without restriction, (b)
independently developed by the receiving party, (c) disclosed in published
materials except as disclosed by the receiving party in breach of this
Section 6, (d) generally known to the public except as disclosed by the
receiving party in breach of this Section 6, or (e) lawfully obtained from
any third party without restriction.
7. Limitation of Liability; Disclaimer; Indemnification.
----------------------------------------------------
(A) EXCEPT AS PROVIDED IN SECTION 7(C)(I)(A) AND SECTION 7(C)(II)(A)
BELOW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED FOR
HEREIN. EXCEPT AS PROVIDED IN SECTION 7(C) LIABILITY ARISING UNDER THIS
INSERTION ORDER AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY
CLAIMS ARISING IN CONNECTION WITH THIS INSERTION ORDER AGREEMENT WILL NOT
EXCEED THE AGGREGATE AMOUNT TO BE PAID BY ADVERTISER DURING THE YEAR IN
WHICH THE LIABILITY ACCRUES.
(B)(I)(A) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL
SERVICE OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY
REGARDING (1) THE NUMBER OF PERSONS WHO WILL ACCESS THE ADVERTISER CONTENT
OR "CLICK-THROUGH" THE ADVERTISEMENTS, (2) ANY BENEFIT ADVERTISER MIGHT
OBTAIN FROM INCLUDING THE ADVERTISEMENT WITHIN THE AOL SERVICE AND (3) THE
FUNCTIONALITY, PERFORMANCE OR OPERATION OF THE AOL SERVICE WITH RESPECT TO
THE ADVERTISEMENTS, AND (B) EXCEPT AS SPECIFICALLY PROVIDED IN CLAUSE II
BELOW, ADVERTISER MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY OTHER
WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(II) Advertiser warrants to AOL that the Advertiser Software will, under
normal use, conform to the limited warranty contained in the Software
License Agreement (as defined in Exhibit E) applicable to the Advertiser
Software during the warranty period set forth in such Software License
Agreement (the "Warranty Period"). The foregoing warranty will apply only
to the version of the Advertiser Software distributed by AOL in accordance
with Exhibit E. If a Customer (as defined in Exhibit E) contacts Advertiser
during the Warranty Period claiming a breach of the warranty set forth in
the Software License Agreement provided with the Advertiser Software
distributed by AOL in accordance with Exhibit E, Advertiser will use
reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Advertiser Software. If a Customer contacts
AOL during the Warranty Period claiming any such breach of warranty, AOL
will use reasonable efforts to promptly refer the matter to Advertiser.
(C) (i) Advertiser hereby agrees to indemnify, defend and hold harmless AOL
and the officers, directors, agents, affiliates,
11
<PAGE>
distributors, franchises and employees of AOL from and against all claims,
actions, liabilities, losses, expenses, damages and costs (including,
without limitation, reasonable attorneys' fees) that may at any time be
incurred by any of them by reason of any claims, suits or proceedings to
the extent such claims, suits or proceedings arise out of or are related
to: (a) third party claims (1) for libel, defamation, violation of right of
privacy or publicity, copyright infringement, trademark infringement or
other infringement of any third party right, fraud, false advertising,
misrepresentation, product liability or violation of any law, statute,
ordinance, rule or regulation throughout the world in connection with the
Advertisements or Advertiser Content provided by Advertiser to AOL
hereunder or in connection with the Advertiser Software distributed by AOL
hereunder (collectively referred to as the "Advertiser Rights Violations");
provided, however, that Advertiser shall have no such indemnification
obligation to the extent that any alleged Advertiser Rights Violation
arises from or in connection with any (x) modification or other alteration
of any Advertisement or Advertiser Content provided to AOL by Advertiser
hereunder, without Advertiser's prior approval, (y) (i) use of any
Advertisement or Advertising Content other than in a manner specified
hereunder or authorized by Advertiser (ii) claim based upon the combination
of the Advertisement, the Advertising Content, or the Advertiser Software
with other content, software technology or materials which Advertiser has
not approved, or (z) (i) any Advertiser Software that has been modified by
AOL without the prior consent of Advertiser, (ii) use of the Advertiser
Software by AOL in a manner which is beyond the scope of the license
granted to it by Advertiser pursuant to Exhibit E, (iii) AOL's use of the
Advertiser Software after notice from Advertiser of infringement or
misappropriation ((i) (ii) and (iii) collectively the "Advertiser Software
Exceptions"); (2) any material breach by Advertiser of any duty,
representation or warranty under this Insertion Order Agreement; or (3) any
contaminated file, virus, worm or Trojan horse originating solely from the
Advertisements or Advertiser Content, or (4) solely arising out of or in
connection with the ability of the Advertiser Software distributed by AOL
hereunder to process calendar date values, including but not limited to,
calendar date values from January 1, 1999 through or beyond January 1,
2000, and in processing such calendar values, to operate in accordance with
the procured system documentation or whether any or all data fields for
calendar date values and data are four digit fields capable of indicating
century and millennium or addressing leap years correctly, and (b) any
contaminated file, virus, worm or Trojan horse originating solely from the
Advertisements or Advertiser Content.
(ii) AOL hereby agrees to indemnify, defend and hold harmless Advertiser
and the officers, directors, agents, affiliates, distributors, franchises
and employees of Advertiser from and against all claims, actions,
liabilities, losses, expenses, damages and costs (including, without
limitation, reasonable attorneys' fees) that may at any time be incurred by
any of them by reason of any claims, suits or proceedings to the extent
such claims, suits or proceedings arise out of or are related to: (a) third
party claims: (1) for libel, defamation, violation of right of privacy or
publicity, copyright infringement, trademark infringement or other
infringement of any third party right, fraud, false advertising,
misrepresentation, product liability or violation of any law, statute,
ordinance, rule or regulation throughout the world in connection with the
AOL Promos or content provided by AOL to Advertiser hereunder (collectively
referred to as the "AOL Rights Violations"); provided, however, that AOL
shall have no such indemnification obligation to the extent that any
alleged AOL Rights Violation arises from any (x) modification or other
alteration of any AOL Promo or AOL Promo content provided to Advertiser by
AOL, without AOL's prior approval, or (y) (i) use of such AOL Promo or AOL
Promo content other than in a manner specified hereunder or authorized by
AOL, or (ii) claim based upon the combination of the AOL Promo or AOL Promo
content with other content, software technology or materials which AOL has
not approved; (2) any infringement of any patent or other intellectual
property right which results from the Advertiser Software Exceptions, (3)
AOL's grant of a warranty to any Customer which exceeds the limited
warranty provided by Advertiser above, and (4) any material breach by AOL
of any duty, representation or warranty under this Insertion Order
Agreement, and (b) AOL's failure to comply with all applicable laws,
regulations, authorizations and rules related to the export or re-export of
any technical data or online postal services.
(iii) Each party (the "Indemnitee") will promptly notify the other party
(the "Indemnitor") of any claim, action or demand (an "Action") for which
indemnity is claimed, permit the Indemnitor to have sole authority to
defend and/or negotiate a settlement of such Action, with counsel of the
Indemnitor's choice and reasonably acceptable to the Indemnitee, and
provide reasonable assistance and cooperation to the Indemnitor in the
investigation, defense and settlement of such Action at the Indemnitor's
expense. The Indemnitee shall be entitled to participate fully in the
defense of any Action at its own expense with counsel of its choice. The
Indemnitor shall have no obligation for any settlement that the Indemnitor
does not approve in writing; provided that the Indemnitor shall not,
without the Indemnitee's prior written consent, enter into any settlement
or compromise that would impose any obligation upon the Indemnitee, impair
the rights of the Indemnitee or require the Indemnitee to pay any amount.
This section will survive the completion, expiration, termination or
cancellation of this Insertion Order Agreement.
8. Solicitation.
------------
(a) Advertiser will not send unsolicited, commercial e-mail (i.e., "spam")
through or into AOL's products or services, absent a prior business
relationship, and will comply with any other standard AOL policies and
limitations relating to distribution of bulk e-mail solicitations or
communications through or into AOL's products or services (including,
without limitation, the requirement that Advertiser provide a prominent and
easy means for the recipient to "opt-out" of receiving any future
commercial e-mail communications from Advertiser. Advertiser will not use
the Advertisement or any other aspect of AOL's products or services to
promote or solicit on behalf of a Competitive Product.
(b) Advertiser shall ensure that its collection, use and disclosure of
information obtained from AOL members under this Insertion Order Agreement
("Member Information") complies with (i) all applicable laws and
regulations and (ii) AOL's standard privacy policies, available on the AOL
Service at the keyword term "Privacy" (or, in the case of Advertiser's
site, Advertiser's standard privacy policies so long as such policies are
prominently published on the site and provide adequate notice, disclosure
and choice to users regarding Advertiser's collection, use and disclosure
of user information).
(c) Advertiser shall ensure that each request of Member Information shall
clearly and conspicuously specify to the AOL members at issue the purpose
for which the Member Information collected by Advertiser shall be used (the
"Specified Purpose"). Advertiser shall limit use of the Member Information
to the Specified Purpose. In the case of AOL members who purchase products
or services from Advertiser, Advertiser will be entitled to incorporate
such members into Advertiser's aggregate lists of customers; provided that
Advertiser shall in no way: (i) disclose Member Information in a manner
that identifies AOL members as end-users of an AOL product or service (or
in any other manner that could reasonably be expected to facilitate use of
such information by or on behalf of a Competitive Product); or (ii)
otherwise use such Member Information in connection with marketing of a
Competitive Product. This section shall survive the completion, expiration,
termination or cancellation of this Insertion Order Agreement.
9. Miscellaneous. The parties to this Insertion Order Agreement are
-------------
independent contractors. Neither party is an agent, representative or
partner of the other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. The
failure of either party to insist upon or enforce strict performance by the
other party of any provision of this Insertion Order Agreement or to
exercise any right under this Insertion Order Agreement shall not be
construed as a waiver or relinquishment to any extent of such party's right
to assert or rely upon any such provision or right in that or any other
instance. Except where otherwise specified herein or in the Insertion
Order, the rights and remedies granted to a party under this Insertion
Order Agreement are cumulative and in addition to, and not in lieu of, any
other rights
12
<PAGE>
or remedies which the party may possess at law or in equity. Advertiser
shall not (i) issue any press releases or public statements concerning the
existence or terms of this Insertion Order Agreement or (ii) use, display
or modify AOL's trademarks in any manner absent AOL's express prior written
approval. Either party may terminate this Insertion Order Agreement (a) at
any time with written notice to the other party in the event of a material
breach of this Insertion Order Agreement by the other party, which remains
uncured after thirty days written notice thereof; (b) immediately following
written notice to the other party if the other party (1) ceases to do
business in the normal course, (2) becomes or is declared insolvent or
bankrupt, (3) is the subject of any proceeding related to its liquidation
or insolvency (whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days, or (4) makes an assignment for the
benefit of creditors. Additionally, in the event of a change of control of
Advertiser which results in control of more than 50% of the equity
securities of Advertiser or the power to vote for the election of directors
or other governing authority of Advertiser by an AOL Competitor , AOL may
terminate this Insertion Order Agreement by providing forty five (45) days
prior written notice of such intent to terminate. For the purposes hereof,
an "AOL Competitor" shall be any entity listed on Exhibit F attached
hereto; provided, however, that from time to time AOL shall have the right
to add to such list as reasonably determined by AOL, provided that AOL may
add to such list no more than once every three months. Notwithstanding the
foregoing, to the extent that Advertiser can demonstrate to AOL's
reasonable satisfaction that Advertiser is engaged in negotiations with any
third party that is not listed on Exhibit F, which negotiations would
result in a change of control of Advertiser as provided herein, AOL shall
not have the right to add such third party to the list after Advertiser has
so reasonably demonstrated to AOL that Advertiser is in negotiations with
such third party. This Insertion Order Agreement sets forth the entire
agreement between Advertiser and AOL, and supersedes any and all prior
agreements of AOL or Advertiser with respect to the transactions set forth
herein. No change, amendment or modification of any provision of this
Insertion Order Agreement shall be valid unless set forth in a written
instrument signed by the party subject to enforcement of such amendment.
Advertiser shall not assign this Insertion Order Agreement or any right,
interest or benefit under this Insertion Order Agreement without the prior
written consent of AOL. Assumption of the Insertion Order Agreement by any
successor to Advertiser (including, without limitation, by way of merger or
consolidation) shall be subject to AOL's prior written approval. Subject to
the foregoing, this Insertion Order Agreement shall be fully binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In the event that any provision of this
Insertion Order Agreement is held invalid by a court with jurisdiction over
the Parties to this Insertion Order Agreement, (i) such provision shall be
deemed to be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law and (ii) the
remaining terms, provisions, covenants and restrictions of this Insertion
Order Agreement shall remain in full force and effect. Both parties shall
adhere to all applicable laws, regulations and rules relating to the export
of technical data and shall not export or re-export any technical data, any
products received from the other party or the direct product of such
technical data to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized. This Insertion Order
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
document. Except with respect to any claims brought by Advertiser in
connection with Exhibit E or with respect to the AOL Promos, this Insertion
Order Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the Commonwealth of Virginia,
except for its conflicts of laws principles. Except as otherwise provided
herein, Advertiser hereby irrevocably consents to the exclusive
jurisdiction of the courts of the Commonwealth of Virginia and the federal
courts situated in the Commonwealth of Virginia in connection with any
action arising under this Insertion Order Agreement. With respect to any
claims brought by Advertiser in connection with Exhibit E or with respect
to the AOL Promos, such claims will be interpreted and enforced in
accordance with the laws of the State of California and AOL hereby consents
to the exclusive jurisdiction of the courts of the State of California and
the federal courts situated in the State of California in connection with
any claim brought by Advertiser in connection with Exhibit E or with
respect to the AOL Promos.
13
<PAGE>
EXHIBIT D
---------
AOL TO PROVIDE
--------------
14
<PAGE>
MILLARD GROUP PACKAGE INSERT INSTRUCTIONS
- ---- inc.----
10 VOSE FARM ROAD.PO BOX 890 ORDER DATE: 12/10/98
PETERBOROUGH HN 03458-0890
______________________________ OUR ORDER #: E4318-24
OFFER: STAMPS
MAILER: 82820 STAMPS.COM KEY CODE: TO FOLLOW
CLIENT: 82820 STAMPS.COM CLIENT P.O. # (AOL PIP TO FOLLOW)
ATTN: FRANK PITELLI
2900 31ST STREET
SUITE 150
SANTA MONICA, CA 90405
OWNER: 03746 AMERICA ONLINE
ATTN: COLEEN SILVERMAN WANTED-BY: [***]
22000 AOL WAY ---
DULLES, VA 20166 MAIL DATE: [***]
---
LIST: 80277 AMERICA ONLINE P.I.P.
SELECTS: [***] BASE PRICE: [***]
--- ---
QUANTITY: [***]
---
MATERIAL: [***]
---
THIS ORDER IS A TEST
SHIP-TO: TO FOLLOW
LABEL-ID: VIA: PREPAID
CONTACT: KATE ROBBINS X295
603-924-9262
______________________________SPECIAL INSTRUCTIONS_____________________________
THIS OFFER WAS PREVIOUSLY APPROVED VIA LAST CLEARANCE.
***PAYMENT IS DUE 30 DAYS FROM INVOICE DATE. ***
INSERTS MUST ARRIVE NO LATER THAN [***].
---
CLEARLY MARK CARTONS WITH QTY. PER CARTON, KEYCODE, AND PROGRAM NAME/DATE.
MILLARD GROUP, INC. NOR PROGRAM OWNER CAN GUARANTEE EXACT INSERTION DATES OR
QUANTITIES.
MAILER IS RESPONSIBLE FOR A [***] CANCELLATION FEE ON ALL CANCELLED ORDERS.
---
ORDERS CANCELLED WITHIN 90 DAYS OF MAIL DATE WILL INCUR FULL CHARGES.
**PLEASE REVIEW AND COMPLY WITH THE ATTACHED SHIPPING INSTRUCTIONS**
***APPROVAL UPON RECEIPT OF ACTUAL SAMPLE***
****ORDER APPROVAL TO BE DETERMINED BY CREDIT & COLLECTIONS****
PRICING MUST BE FINALIZED [***]
---
**PIP AGREEMENT MUST BE SIGNED PRIOR TO FINAL ORDER APPROVAL**
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
TEL:603-924-9262 LM FAX:603-924-8420 BROK:603-924-7810 AM/DIRECT:603-924-3019
PLEASE READ CAREFULLY THE LIST RENTAL TERMS AND CONDITIONS ON THE REVERSE SIDE.
<PAGE>
MILLARD GROUP *****************************
*** REVISION ***
- -----inc.---- *****************************
10 VOSE FARM ROAD.PO BOX 890
PETERBOROUGH HN 03458-0890 ORDER DATE: 12/10/98
____________________________
OUR ORDER #: E4318-24
MAILER: 82820 STAMPS.COM OFFER: STAMPS
CLIENT: 82820 STAMPS.COM
ATTN: FRANK PITELLI
2900 31ST STREET CLIENT P. O. # TO FOLLOW
SUITE 150
SANTA MONICA, CA 90405
OWNER: 03746 AMERICA ONLINE
ATTN: COLEEN SILVERMAN
22000 AOL WAY
DULLES, VA 20166
LIST: 80277 AMERICA ONLINE P.I.P. MAIL DATE: [***]
---
SELECTS: [***]
---
CONTACT: KATE ROBBINS X295
603-924-9262
__________________________REVISION INSTRUCTIONS___12/14/98_____________________
PLEASE NOTE: THE BASE RATE WILL BE BETWEEN [***] ON THIS ORDER.
---
THIS PRICE WILL BE DETERMINED AT A LATER DATE.
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
TEL:603-924-9262 LM FAX:603-924-8420 BROK:603-924-7810 AM/DIRECT:603-924-3019
PLEASE READ CAREFULLY THE LIST RENTAL TERMS AND CONDITIONS ON THE REVERSE SIDE.
<PAGE>
EXHIBIT E
---------
ADVERTISER SOFTWARE DISTRIBUTION TERMS AND CONDITIONS
-----------------------------------------------------
1. Terms and Conditions. The following terms and conditions shall govern the
--------------------
distribution by AOL of the advertiser software.
2. Definitions. As used in this Exhibit E, the following terms shall have the
-----------
following meanings:
"Affiliate" shall mean an entity in which AOL holds at least a nineteen
---------
percent (19%) equity interest.
"AOL Client" shall mean the object code form of the client software for
----------
Win16, Win32 and Mac developed and distributed by AOL that enables end-
users to subscribe to, access and use the AOL Service, and upgrades
thereto.
"Authorized Testing Service" shall mean any third-party person or entity
--------------------------
designated in writing by AOL, in its sole discretion, to offer support and
quality assurance services relating to interoperability of third party
products with the AOL Client and the AOL Service.
"Commerce Customer" shall mean any Customer of Advertiser acquired through
-----------------
the distribution of the Advertiser Software by AOL as provided hereunder
and who purchases the Advertiser Product at least two times.
"Customer" shall mean end-user customers of the Advertiser Software.
--------
"Documentation" shall mean the documentation provided to AOL by Advertiser
-------------
for use with the Advertiser Software.
"Software License Agreement" shall mean Advertiser's standard software
--------------------------
license agreement between Advertiser and Customers, as provided by
Advertiser to AOL for inclusion with the Advertiser Software.
3. License Grant. Subject to all the terms and conditions of this Insertion
-------------
Order Agreement, Advertiser hereby grants to AOL and its Affiliates a
worldwide, non-exclusive, non-transferable, royalty-free license to use,
reproduce, market, promote and distribute to end users through its usual
and customary channels of distribution, solely to the limited extent and
for the express purposes stated herein, the Advertiser Software in object
code form, through CD-ROMs any other physical media containing the AOL
client.
4. Copying/Reverse Engineering. AOL agrees not to (i) disassemble, decompile
---------------------------
or otherwise reverse engineer the Advertiser Software or otherwise attempt
to learn the source code, structure, algorithms or ideas underlying the
Advertiser Software, (ii) take any action contrary to Advertiser's Software
License Agreement, except as expressly and unambiguously agreed upon by
Advertiser, (iii) alter or modify the Advertiser Software except as agreed
upon by Advertiser, (iv) attempt to disable any security devices or codes
incorporated in the Advertiser Software, or (v) allow or assist others to
do any of the foregoing.
5. Advertiser's Obligations.
------------------------
(i) Certification Requirements. AOL shall provide to Advertiser a
--------------------------
written copy of, and Advertiser shall comply with, all quality
assurance and testing requirements for the Advertiser Software to be
distributed by AOL hereunder, as may be reasonably amended by AOL
from time to time, and together with any other reasonable quality
assurance and testing requirements delivered by AOL in writing
(including amendments) to Advertiser, the ("Certification
Requirements").
(ii) Support and Quality Assurance by the Authorized Testing Service. The
---------------------------------------------------------------
Authorized Testing Service shall provide support and quality
assurance testing with respect to the Advertiser Software and
interoperability of such products with the AOL Client and the AOL
Service. Support and quality assurance testing shall be provided on
terms and conditions to be worked out between Advertiser and the
Authorized Testing Service and at Advertiser's expense. In connection
with the foregoing, Advertiser shall deliver a master copy of the
Advertiser Software in object code form, along with any required
Documentation to the Authorized Testing Service and AOL no later than
[***]. The Authorized Testing Service shall perform quality assurance
---
testing on the Advertiser Products in accordance with the
Certification Requirements. If and when the Authorized Testing
Service determines that any such product meets the relevant
Certification Requirements, the Authorized Testing Service shall then
certify in writing that such product is a "Complying Product". AOL
shall use commercially reasonable efforts, if and to the extent
within its control and consistent with the purposes hereof, to help
expedite such testing processes by the Authorized Testing Service.
(iii) AOL Release Approval. AOL shall have the right to inspect the
--------------------
Complying Product prior to commercial production or public release by
AOL under this Agreement. AOL shall, in its discretion (but based
upon commercially reasonable factors (including without limitation a
change of control of Advertiser, or technical or operational problems
or incompatibilities), provide notice of approval or rejection within
fifteen (15) business days of receiving certification from the
Authorized Testing Service that such product is a Complying Product
together with a copy of the Complying Product.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
17
<PAGE>
AOL shall have no obligation to distribute any copy of the Advertiser
Software that has not first obtained release approval from AOL. The
parties may negotiate in good faith to cure any circumstance or issue
causing AOL to so reject, provided that if AOL does not approve
release pursuant to this Section 5(iii), then AOL shall refund to
Advertiser any payments made by Advertiser to AOL pursuant to Section
9(i) of this Exhibit E.
(iv) Re-certification Requirements. Revisions of copies of the Advertiser
-----------------------------
Software that have previously been certified by the Authorized
Testing Service must be re-certified. For purposes of this provision,
a "revision" is defined as any version of a Complying Product that
contains programming code that differs materially from the Complying
Product. Without limiting the foregoing, revisions include
maintenance updates, patches, fixes, and new releases of a Complying
Product. Revisions to a Complying Product shall be re-certified
according to the Certification Requirements, unless AOL or the
Authorized Testing Service first provides to Advertiser in writing a
list of "Re-Certification Requirements," if any, in which case such
Re-Certification Requirements shall apply.
6. AOL's Distribution Obligations. Subject to the provisions of Section 5
------------------------------
of this Exhibit E, and provided that Advertiser is otherwise in compliance
with the provisions of this Insertion Order Agreement, AOL shall distribute
the Advertiser Software with a minimum number of [***] AOL 4.0 CD-ROMs
---
containing the AOL Client which is sent by AOL in direct marketing
programs to prospective AOL customers during the period commencing on [***]
---
(the "Distribution Period");provided however, that (i) AOL shall have
the right to continue distribution of the Advertiser Software after the
Distribution Period has ended subject to the terms and conditions hereof
and (ii) if Advertiser shall not have delivered a master copy of the
Advertiser Software to the authorized testing service and AOL by May 15,
1999, then AOL shall no longer be obligated to distribute the Advertiser
Software with a minimum number of [***] AOL 4.0 CD-ROMs, and in such
---
event, AOL `s sole obligation will be to distribute the Advertiser Software
during the period commencing on the date on which the Advertiser Software
becomes a complying product and ending at the end of the Distribution
Period. When the end-user installs the AOL Client on the end-user's system,
the Advertiser Software installation program will be automatically copied
onto the end-user's hard drive, and the end-user will be presented with the
opportunity to install the Advertiser Software. AOL will distribute the
Advertiser Software together with, and subject to, the terms of the
Software License Agreement furnished by Advertiser. Notwithstanding the
foregoing, (i) once AOL begins distribution of the advertiser software, AOL
shall not be obligated to distribute any updates or upgrades to the
Advertiser Software, and (ii) AOL reserves the right, in the event of
technical problems or incompatibilities (e.g., new "bugs"), excessive
usage, or other situations which may adversely affect the user experience
or AOL's costs (collectively, an "Adverse User Situation"), not to include
any Advertiser Software on such CD-ROMs (a "Pull"); provided however that,
in the event of a Pull, AOL shall deliver written notice thereof to
Advertiser within five (5) business days of such Pull. A Pull will remain
in effect as long as any Adverse User Situation remains, in AOL's
reasonable discretion. If such Adverse User Situation is not cured to AOL's
reasonable satisfaction within thirty (30) days from such notice, then
AOL's obligations hereunder shall terminate, and Advertiser shall not be
obligated to make any further payments under section 9(i) hereof.
7. Distribution Requirements. End-users who install the Advertiser Software
-------------------------
distributed pursuant to this will be prompted to send an electronic
registration to Advertiser the first time they attempt to use the
Advertiser Software via the end-user system on which the Advertiser
Software is installed. During such electronic registration, Advertiser
shall create a process by which such end-user will be identified as a user
obtained through the 4.0 CD-ROMs distributed by AOL hereunder. AOL agrees
not to interfere with, obfuscate, remove or alter any of the automatic
installation mechanisms, electronic registration mechanisms, or patent,
copyright or other proprietary rights notices included in the Advertiser
Software provided by Advertiser to AOL. AOL's obligations under this
Section 7 shall be contingent upon Advertiser's delivery of Advertiser
Software that has been quality assurance tested in accordance with Section
5 hereof.
8. Installation and Support. Advertiser shall be solely responsible for
------------------------
providing Customers with installation, maintenance and technical
integration support with respect to the Advertiser Software. AOL shall
notify Advertiser as soon as possible of AOL's receipt of any customer
requests for support or assistance with respect to the Advertiser Software.
9. Payments. In connection with AOL's obligations hereunder, Advertiser shall
--------
pay to AOL the following:
(i) [***]
---
(ii) [***]
---
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
18
<PAGE>
10. Auditing Rights. Advertiser will maintain complete, clear and accurate
records of all expenses, revenues and fees in connection with the
performance of this Insertion Order Agreement, including reports which
indicate the number of customers acquired as a result of the distribution
of the Advertiser Software by AOL, and the number of such customers which
become Commerce Customers. For the sole purpose of ensuring compliance
with Section 9(ii) of this Insertion Order Agreement, AOL (or its
representative) will have the right to conduct a reasonable and necessary
inspection of portions of the books and records of Advertiser which are
relevant to Advertiser's performance pursuant to this Insertion Order
Agreement. Any such audit may be conducted after twenty (20) business days
prior written notice to Advertiser. AOL shall bear the expense of any audit
conducted pursuant to this Section 9 unless such audit shows an error in
AOL's favor amounting to a deficiency to AOL in excess of five percent (5%)
of the actual amounts paid and/or payable to AOL hereunder, in which event
Advertiser shall bear the reasonable expenses of the audit. Advertiser
shall pay AOL the amount of any deficiency discovered by AOL within thirty
(30) days after receipt of notice thereof from AOL. This provision shall
survive the termination or expiration of this Insertion Order Agreement for
an additional three year period.
19
<PAGE>
EXHIBIT F
---------
[***]
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
20
<PAGE>
EXHIBIT 10.18
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
SPONSORSHIP AGREEMENT
---------------------
by and between
INTUIT INC.
and
STAMPS.COM INC.
Dated
May 14, 1999
- -------------------------------------------------------------------------------
<PAGE>
SPONSORSHIP AGREEMENT
This Sponsorship Agreement ("Agreement") is entered into as of the 14th day of
May, 1999 ("Effective Date"), by and between Intuit Inc. a Delaware corporation,
located at 2550 Garcia Ave., Mountain View, California 94043 ("Intuit"), and
Stamps.com Inc., a Delaware corporation, located at 2900 31st Street, Suite 150,
Santa Monica, CA 90405-3035 ("Client").
RECITALS
A. Intuit maintains sites on the Internet at http://www.quicken.com (the
"Quicken.com Site") and at http://www.quickbooks.com (the "QuickBooks
-------------------------
Site"), and owns, manages or is authorized to place advertising on the
following affiliated Web sites worldwide http://www.quicken.excite.com
-----------------------------
("Excite Money & Investing Site"), http://www.quicken.webcrawler.com
---------------------------------
("WebCrawler Money & Investing Site"), and http://www.quicken.aol.com
--------------------------
("AOL.com Personal Finance Site") (all such sites, including the
Quicken.com Site and QuickBooks Site, collectively referred to as the
"Intuit Sites"). Within the Intuit Sites, content is organized into topical
channels ("Channels").
B. Intuit maintains the Quicken'99 software product into which Banner
Advertisements are served ("Quicken Software").
C. Client is engaged in the business of the sale and delivery of electronic
postage at its Web site located at http://www.stamps.com (the "Client
Site").
D. Client wishes to promote its business to users of the Intuit Sites through
promotions and advertising in various portions of the Intuit Sites.
Therefore, the parties agree as follows:
1. ADDITIONAL DEFINITIONS
1.1 "Above-the-Fold" means the portion of a page that is designed to be visible
on a standard computer screen with a resolution of 640 pixels by 480 pixels
without requiring the user to scroll horizontally or vertically through the
page.
1.2 "Banner Advertisement" means advertisements consisting of billboard-like
graphics displayed in a standardized specific location on the Intuit Sites,
which advertisements click-through to the Client Site, or such other
address mutually agreed upon by the parties from time to time.
1.3 "Channel Home Page" means, with respect to any Channel the introductory or
welcome page for such Channel.
1.4 "Client Competitor" means any of the entities listed on Exhibit A to this
Agreement, as such list may be amended by mutual agreement by the parties,
[***].
---
1.5 "Client Graphic" means those mutually agreed upon graphics, artwork, logos,
descriptions and other material provided by Client for use on the Intuit
Sites.
1.6 "Impression" is generated where a User's browser software requests a file
via the World Wide Web service of the Internet, where such file contains a
Banner Advertisement or Link.
1.7 "Launch Date" means [***].
---
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
1.8 "Link" means a hypertext text and/or graphic link from the Intuit Sites to
the Client's Site.
1.9 "Net Transaction Revenues" means the aggregate amount of transaction fees
received by Client during the Term from a New Customer for the purchase of
U.S. postage from Client by such New Customer, less amounts attributable to
taxes, shipping, returns, bad debt, handling, credit card charges and
similar charges (collectively, "Deductions"). Notwithstanding the
foregoing, such Deductions, with the exception of credit card charges,
shall not exceed [***].
---
1.10 New Customer" means a User who [***]
---
1.11 "Sponsor Client Graphic" means a Client Graphic which indicates Client as
a "Sponsor" with respect to the sale or delivery of electronic postage,
which graphics click-through to the Client Site, or such other address
mutually agreed upon by the parties from time to time.
1.12 "User" means any person or entity that accesses one or more pages on the
Intuit Sites and is transported via the World Wide Web from the Intuit Site
to the Client's Site.
2. SMALL BUSINESS CHANNEL PROMOTION
2.1 Promotions. Commencing on the Launch Date and continuing throughout the
----------
Term, Intuit shall promote Client on the "Small Business" Channel of the
Quicken.com Site, Excite Money & Investing Site and WebCrawler Money &
Investing Site as follows:
2.1.1 A Sponsor Client Graphic [***] shall be rotated amongst the
---
following pages (or their successor pages, if any): (1) "Starting a
Business" page, (2) "Managing your Business" page, (3) "Marketing"
page, (4) "Legal Issues" page, and (5) "Taxes & Accounting" page.
Each such Sponsor Client Graphic shall be Above the Fold.
2.1.2 A Sponsor Client Graphic [***] where a sponsorship strip exists.
---
2.1.3 A text Link to be located [***] on the "Small Business" Channel home
---
page of the Quicken.com Site, Excite Money & Investing Site and
WebCrawler Money & Investing Site .
2.1.4 A text Link on the [***] of the "Small Business" Channel Home Page
---
of the Quicken.com Site, Excite Money & Investing Site and
WebCrawler Money & Investing Site.
2.1.5 A Sponsor Client Graphic [***], will appear on the "Small Busines
---
Mailing/Shipping, OnLine Postage" page in the "Small Business"
Channel, when such page is made publicly available on the applicable
Intuit Sites. Such graphic shall be displayed in a position mutually
agreed upon by the parties.
2.2 Email Promotions. Intuit will place a Sponsor Client Graphic [***]. For
---------------- ---
the avoidance of doubt, it is understood that the [***] shall not contain
---
[***].
---
2.3 Additional Banner Advertisements. Commencing on the Launch Date and
--------------------------------
continuing throughout the Term, Intuit will include on the Quicken.com
Site, Banner Advertisements [***].
---
2.4 Total Small Business Impressions. Intuit [***] Impressions of Client's
-------------------------------- ---
Banner Advertisements, Client Graphics and Links described in this Section
2 during the entire Term of this Agreement. Intuit acknowledges it is
Client's preference to have Intuit deliver such Impressions as follows:
[***]
---
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
2
<PAGE>
If Intuit fails to deliver such Impressions during the [***] period
---
following the Launch Date, Intuit agrees to run such promotions in
equivalent areas and placement, as mutually agreed upon by the parties,
until such Impressions have been delivered.
3. [***] PROMOTION
---
3.1 Promotions. [***]
---------- ---
3.1.1 A Sponsor Client Graphic of [***] shall be rotated throughout the
---
[***]. Each such Sponsor Client Graphic shall be [***]
--- ---
3.1.2 A Sponsor Client Graphic [***] to be found [***]
--- ---
3.2 Additional Banner Advertisements. Commencing on the Launch Date and
--------------------------------
continuing throughout the Term, Intuit will include on the Quicken.com
Site, Excite Money & Investing Site, WebCrawler Money & Investing Site, and
AOL.com Personal Finance Site, Banner Advertisements [***].
---
3.3 Total [***] Impressions. Intuit [***] Impressions of Client's Banner
----------------------- ---
Advertisements and Client Graphics described in this Section 3 during the
entire Term of this Agreement. Intuit acknowledges it is Client's
preference to have Intuit deliver such Impressions as follows:
[***]
---
If Intuit fails to deliver such Impressions during [***] following the
---
Launch Date, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties, until such Impressions
have been delivered.
4. QUICKEN.COM SITE HOME PAGE PROMOTION
4.1 Promotions. Commencing on the Launch Date and continuing for [***]
---------- ---
throughout the Term, as mutually agreed by the parties, Intuit shall
promote Client on the Quicken.com Site home page, with a Sponsor Client
Graphic [***].
---
4.2 Total Impressions. Intuit [***] Impressions of Client's Sponsor Graphics
----------------- ---
described in this Section 4 during the period agreed upon by the parties.
If Intuit fails to deliver such Impressions during the agreed upon time
period, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties until such Impressions
have been delivered.
5. QUOTES PLUS TAB EXCITE MONEY & INVESTING SITE PROMOTION
5.1 Promotions. Commencing on the Launch Date and continuing for [***]
---------- ---
throughout the Term, as mutually agreed by the parties, Intuit shall
promote Client on the "Quotes Plus" tab within the "Investment" Channel of
the Excite Money & Investing Site with a Sponsor Client Graphic[***].
---
5.2 Total Impressions. Intuit [***] Impressions of Client's Sponsor Graphics
----------------- ---
described in this Section 5 during the period agreed upon by the parties.
If Intuit fails to deliver such Impressions during the agreed upon time
period, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties until such Impressions
have been delivered.
6. QUICKBOOKS SITE PROMOTION
6.1 Banner Advertisements. Commencing on the Launch Date and continuing
---------------------
throughout the Term, Intuit will include Banner Advertisements [***] on the
---
QuickBooks Site.
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
<PAGE>
6.2 Total Impressions: Intuit [***] Impressions of Banner Advertisements
----------------- ---
described in this Section 6 during the Term of this Agreement. Intuit
acknowledges it is Client's preference to have Intuit deliver such
Impressions as follows:
[***]
---
If Intuit fails to deliver such Impressions during [***]
---
following the Launch Date, Intuit agrees to run such promotions in
equivalent areas and placement, as mutually agreed upon by the parties,
until such Impressions have been delivered.
7. QUICKEN SOFTWARE PROMOTION
7.1 Banner Advertisements. Commencing on the Launch Date and continuing
---------------------
throughout the Term, Intuit will serve Banner Advertisements [***] into the
---
Quicken Software.
7.2 Total Impressions: Intuit [***] Impressions of Banner Advertisements
----------------- ---
described in this Section 7 during the Term of this Agreement. Intuit
acknowledges it is Client's preference to have Intuit deliver such
Impressions as follows:
[***]
---
If Intuit fails to deliver such Impressions during [***] following the
---
Launch Date, Intuit agrees to run such promotions in equivalent areas and
placement, as mutually agreed upon by the parties, until such Impressions
have been delivered.
8. LAUNCH DATE, RESPONSIBILITY FOR INTUIT SITES AND REPORTING
8.1 Client Obligations. Client will use reasonable efforts to assist Intuit in
------------------
implementing the promotional placements and advertising described in the
Agreement. The parties recognize that the Launch Date can be met only if
Client provides final versions of all Client Graphics, text, Banner
Advertisements and other promotional media and valid URL links necessary to
implement the promotional placements and advertising described in this
Agreement (collectively, "Impression Material") to Intuit at least ten (10)
days prior to the Launch Date.
8.2 Untimely Delivery Options. In the event that Client fails to provide the
-------------------------
Impression Material to Intuit at least ten (10) days in advance of the
Launch Date, Intuit may, at its sole discretion (i) reschedule the Launch
Date to the earliest practicable date according to the availability of
Intuit's engineering resources after delivery of the complete Impression
Material or (ii) commence delivery of Impressions based on Impression
Material in Intuit's possession at the time and/or reasonable placeholders
created by Intuit.
8.3 Intuit Sites. Intuit will have sole responsibility for providing, hosting
------------
and maintaining, at its expense, the Intuit Sites. Subject to the terms
and conditions set forth herein, including without limitation, the
obligations of Intuit set forth in Sections 2-7, Intuit will have sole
control over the "look and feel" of the Intuit Sites including, but not
limited to, the display, appearance and placement of the parties'
respective names and/or brands and the promotional links. Notwithstanding
the above, Client acknowledges that the Banner Advertisements may be served
by a third party authorized by Intuit ("Authorized Advertisement Server")
8.4 Reports. Intuit or its Authorized Advertisement Server will provide Client
-------
with monthly reports ("Usage Reports") substantiating the number of
Impressions of Client's Banner Advertisements, Client Graphics, Sponsor
Client Graphics and Links displayed on the Intuit Sites, the total number
of click-throughs generated by each such advertisement or graphic, and such
other information as the parties shall mutually agree.
8.5 Records/Audit. Intuit will maintain accurate records with respect to the
-------------
calculation of Impressions delivered pursuant to this Agreement. Client
may, upon no less than thirty (30) days prior written notice to
[**]Confidential treatment has been requested for the racketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
<PAGE>
Intuit, cause an independent Certified Public Accountant to inspect all
relevant records of Intuit upon which the calculation of Impressions under
the Usage Reports are based during Client's normal business hours. The fees
charged by such Certified Public Accountant in connection with the
inspection will be paid by Client unless the number of Impressions are
determined to have been less than ninety-five percent (95%) of the
Impressions due to Client, in which case Client will be responsible for the
payment of the reasonable fees for such inspection. In addition, if the
audit reveals such shortfall in the number of Impressions generated, Intuit
shall continue to display Client's Banner Advertisements, Client Graphics,
Sponsor Client Graphics and Links on the Intuit Sites as set forth herein.
The audit rights set forth herein shall continue for one (1) year following
the termination of this Agreement for any reason. No such audit may occur
more than once a year during the Term.
9. EXCLUSIVITY
[***].
---
10. FEES
10.1 Sponsorship, Advertising and Exclusivity Fees. Client will pay Intuit
---------------------------------------------
sponsorship and advertising fees of $2,644,010 and an exclusivity fee of
$661,003. Such fees shall be paid to Intuit as follows. An initial fee of
$[***] shall be due and payable on the Effective Date. The remaining
---
balance of $[***] shall be paid to Intuit [***]. Each [***] should be
--- --- ---
payable in advance and due no later than [***].
---
10.2 [***]. Separate and apart from the fees in Subsection 10.1 above, at such
---
time [***]. Client will [***]. Within fifteen (15) days after the end of
--- ---
each month, Client will provide a [***].
---
10.3 Records/Audit. Client will maintain accurate records with respect to the
-------------
calculation of all Transaction Fees due under this Agreement. Intuit may,
upon no less than thirty (30) days prior written notice to Client, cause an
independent Certified Public Accountant to inspect all relevant records of
Client upon which the calculation of such payments are based during
Client's normal business hours. The fees charged by such Certified Public
Accountant in connection with the inspection will be paid by Intuit unless
the payments made to Intuit are determined to have been less than ninety-
five percent (95%) of the payments actually owed to Intuit, in which case
Client will be responsible for the payment of the reasonable fees for such
inspection. In addition, Client shall immediately remit payment to Intuit
for the full amount of any disclosed shortfalls. The audit rights set
forth herein shall continue for one (1) year following the termination of
this Agreement for any reason. No such audit may occur more than once a
year during the Term.
10.4 Cost and Expenses. Unless otherwise provided in this Agreement, each
------------------
party shall bear its own costs and expenses in connection with its
activities performed under this Agreement.
11. PUBLICITY
Unless required by law, neither party will make any public statement, press
release or other announcement relating to the terms of or existence of this
Agreement without the prior written approval of the other. Notwithstanding
the foregoing, the parties agree to issue a mutually acceptable initial
press release regarding the relationship between Intuit and Client, within
thirty (30) days of the Effective Date unless agreed otherwise by the
parties.
12. TERM AND TERMINATION
12.1 Term. Unless otherwise terminated as specified in this Section 12, the
----
term of this Agreement shall begin on the Effective Date and will not end
until the later of (a) [***] in accordance with the terms set forth herein
---
("Term").
[***]Confidential treatment has been requested for the bracketed potions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
<PAGE>
12.2 Termination. Either party may terminate this Agreement if the other party
-----------
materially breaches a material obligation hereunder and such breach remains
uncured for thirty (30) days following the notice to the breaching party of
the breach and the notifying party's intention to terminate. All
undisputed payments that have accrued prior to the termination or
expiration of this Agreement for any reason will be payable in full within
thirty (30) days thereof. In addition, upon the termination of this
Agreement by Client for any reason, a pro-rata amount of the [***] shall be
---
refunded to Client calculated as follows: the [***] less the cost of the
---
Impressions displayed for such month as of the effective date of the
termination, calculated on an average CPM basis.
12.3 Survival. The provisions of Section 6.5, Section 10.3, Section 12.3,
--------
Section 13.1, Section 14, Section 15, Section 16, Section 17, and Section
18 will survive any termination or expiration of this Agreement.
12.4 Renewal. If Intuit elects to provide advertising, sponsorship or other
-------
promotional space on all or any portion of the Intuit Sites for a Client
Competitor, Intuit agrees [***].
---
13. TRADEMARK OWNERSHIP AND LICENSE
13.1 Ownership. Client will retain all right, title and interest in and to its
---------
trademarks, service marks and trade names worldwide, subject to the limited
license granted to Intuit hereunder. Intuit will retain all right, title
and interest in and to its trademarks, service marks and trade names
worldwide, subject to the limited license granted to Client hereunder.
13.2 License. Each party hereby grants to the other a non-exclusive, limited
-------
license to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding advertising and
trademark usage as shall be established or changed from time to time in
each party's sole discretion. Upon the expiration or termination of this
Agreement, each party will cease using the trademarks, service marks and/or
trade names of the other except as the parties may agree in writing or to
the extent permitted by applicable law.
14. CONTENT OWNERSHIP
Client will retain all right, title and interest in and to the Client Site
worldwide including, but not limited to, ownership of all copyrights, look
and feel and other intellectual property rights therein. Intuit will
retain all right, title, and interest in and to the Intuit Sites worldwide
including, but not limited to, ownership of all copyrights, look and feel
and other intellectual property rights therein.
15. CONFIDENTIALITY AND USER DATA
15.1 Definition. For the purposes of this Agreement, "Confidential Information"
----------
means this Agreement, and all information about the disclosing party's (or
its suppliers') business or activities that is proprietary and
confidential, which shall include all business, financial, technical and
other information of a party marked or designated by such party as
"confidential or "proprietary" at the time of disclosure. In addition, the
Usage Reports are considered to be confidential to Intuit.
15.2 Exclusions. Confidential Information will not include information that (i)
----------
is in or enters the public domain without breach of this Agreement, (ii)
the receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure obligation,
(iii) the receiving party rightfully knew prior to receiving such
information from the disclosing party or (iv) the receiving party develops
independent of any information originating from the disclosing party.
15.3 Restrictions. Each party agrees (i) that it will not disclose to any third
------------
party or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all Confidential
Information of the other party in its possession or control, which will in
no event be less than the measures it uses to maintain the confidentiality
of its own information of similar importance.
[***]Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
6
<PAGE>
15.4 User Data. All information and data provided to Intuit by users of the
---------
Intuit Sites or otherwise collected by Intuit relating to user activity on
the Intuit Sites shall be retained by and owned solely by Intuit. All
information and data provided to Client by users of the Client Site or
otherwise collected by Client relating to user activity on the Client Site
shall be retained by and owned solely by Client. Each party agrees to use
such information only as authorized by the user and shall not disclose,
sell, license, or otherwise transfer any such information to any third
party (except as required by law) or use the user information for the
transmission of "junk mail," "spam," or any other unsolicited mass
distribution of information.
15.5 Limitations. Notwithstanding the foregoing, each party may disclose
-----------
Confidential Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by
law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
16. WARRANTY/INDEMNITY/DISCLAIMER OF WARRANTIES
16.1 By Client. Client represents and warrants that (i) it has full power and
---------
authority to enter into this Agreement; (ii) entering into and performance
of this Agreement by Client does not violate, conflict with, or result in a
material default under any other contract or agreement to which Client is a
party, or by which it is bound; and (iii) it has the right to make
available the services on the Client Site.
16.2 By Intuit. Intuit represents and warrants that (i) it has full power and
---------
authority to enter into this Agreement; (ii) entering into and performance
of this Agreement by Intuit does not violate, conflict with, or result in a
material default under any other contract or agreement to which Intuit is a
party, or by which it is bound; and (iii) it has the right to make
available on the Intuit Sites the Banner Advertisements, Sponsor Client
Graphics, Links and other advertisements placed hereunder.
16.3 By Client. Client will defend and/or settle any third party claim brought
---------
against Intuit, its affiliates, officers, directors, employees, consultants
and agents arising from: (1) a breach of Client's representations or
warranties under Section 16.1; (2) any claim that Client's Impression
Materials infringe or violate any third party's copyright, U.S. patent,
trade secret, any patent outside of the US which Client has knowledge of,
or trademark; or (3) content provided by Client for the Client Site or the
products and services of Client offered on the Client Site, and will pay
resulting costs, damages and reasonable attorneys' fees finally awarded,
provided that Intuit promptly notified Client in writing of any and all
such claims. Client has sole control of the defense and all related
settlement negotiations and Intuit reasonably cooperates with Client with
the defense and/or settlement thereof, at Client's expense.
Notwithstanding the foregoing, Client shall not, without Intuit's prior
written consent (which consent shall not be unreasonably withheld or
delayed), make any such settlement that imposes any obligation, financial
or otherwise, upon Intuit. Intuit may not settle or compromise such claim,
action or allegation, except with the prior written consent of Client.
Intuit may have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim, action or allegation, at
Intuit's cost and expense.
16.4 By Intuit. Intuit will defend and and/or settle any third party claim
---------
brought against Client, its affiliates, officers, directors employees,
consultants and agents arising from (1) a breach of Intuit's
representations or warranties under Section 16.2; or (2) any claim arising
from the Intuit Sites other than content or services provided by Client,
and will pay resulting costs, damages and reasonable attorneys' fees
finally awarded, provided that Client promptly notifies Intuit in writing
of any and all such claims. Intuit has sole control of the defense and all
related settlement negotiations, and Client reasonably cooperates with
Intuit with the defense and/or settlement thereof at Intuit's expense.
Notwithstanding the foregoing, Intuit shall not, without Client's prior
written consent (which consent shall not be unreasonably withheld or
delayed), make any such settlement that imposes any obligations, financial
or otherwise, upon Client. Client may not settle or compromise such claim,
action or allegation, except with the prior written consent of Intuit.
Client may have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim, action or allegation, at
Client's costs and expense.
7
<PAGE>
16.5 DISCLAIMER. EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
----------
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT
LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
17. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 15 AND 16, IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES
HEREUNDER (EXCEPT UNDER SECTIONS 15 AND 16), WHETHER IN CONTRACT, TORT OR
ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO
BE PAID BY CLIENT TO INTUIT HEREUNDER.
18. GENERAL
18.1 Assignment. Neither party may assign this Agreement, in whole or in part,
----------
without the other party's written consent (which will not be unreasonably
withheld or delayed); provided however, that either party may assign its
rights and obligations hereunder in the event of a sale of all, or
substantially all of such party's assets related to this Agreement, whether
by merger, reorganization, operation of law or otherwise, or (2) either
party's assignment and/or delegation of its rights and responsibilities
hereunder to a wholly-owned subsidiary or joint venture in which the
assigning party holds an interest. Any attempt to assign this Agreement
other than as permitted above will be null and void. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the
benefit of both parties, their successors and permitted assigns.
18.2 Applicable Law and Jurisdiction. This Agreement and the performance of
-------------------------------
the parties under this Agreement shall be governed by and construed in
accordance with the laws of the State of California, U.S.A., except that
body of law concerning conflicts of laws. In any action relating to the
parties, the parties consent to jurisdiction in a state or federal court in
Santa Clara County, California.
18.3 Notice. Unless otherwise stated, all notices required under this Agreement
------
shall be in writing and shall be considered given (i) when delivered
personally, (ii) within five (5) days of mailing, certified mail, return
receipt requested and postage prepaid (iii) one (1) day after deposit with
a commercial overnight carrier, or (iv) when delivered by facsimile
transmission. All communications will be addressed as follows (unless
changed by notice):
To Client: Stamps.com
2900 31st Street, Suite 150
Santa Monica, CA 90405-3035
Attn: Vice President, Business Development
To Intuit: If hand delivered or faxed:
--------------------------
Intuit Inc.
2535 Garcia Avenue MS 2550
Mountain View, California 94043
Attn: General Counsel
Phone: 650.944.6000
Fax: 650.944.5656
If mailed:
---------
Intuit Inc.
P.O. Box 7850 MS 2550
Mountain View, CA 94039-7850
Attn: General Counsel
8
<PAGE>
18.4 No Agency. The parties are independent contractors and will have no power
---------
or authority to assume or create any obligation or responsibility on behalf
of each other. This Agreement will not be construed to create or imply any
partnership, agency or joint venture.
18.5 Force Majeure. Any delay in or failure of performance by either party
-------------
under this Agreement will not be considered a breach of this Agreement and
will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts of
God, power outages, failures of the Internet, and Client's failure to
obtain any necessary governmental approval required in connection with the
performance of its obligations hereunder.
18.6 Severability. In the event that any of the provisions of this Agreement
------------
are held to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
18.7 Entire Agreement. This Agreement is the complete and exclusive agreement
----------------
between the parties with respect to the subject matter hereof, superseding
any prior agreements and communications (both written and oral) regarding
such subject matter. This Agreement may only be modified, or any rights
under it waived, by a written document executed by both parties.
9
<PAGE>
18.8 Counterparts. This Agreement may be executed in counterparts, each of
------------
which will serve to evidence the parties' binding agreement.
Client: Stamps.com Inc. Intuit Inc.
---------------
By: By:
--------------------------- ---------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
--------------------------- ---------------------------
Date: Date:
--------------------------- ---------------------------
10
<PAGE>
EXHIBIT A
CLIENT COMPETITORS
E-Stamp
Pitney Bowes
Neopost
[***].
---
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
11
<PAGE>
EXHIBIT 10.9
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
DISTRIBUTOR AGREEMENT
---------------------
by and between
WESTVACO
and
STAMPS.COM INC.
Dated
December 10, 1998
- --------------------------------------------------------------------------------
<PAGE>
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 10/th/ day
of December, 1998 (the "Effective Date"), by and between Stamps.com Inc., a
Delaware corporation with its principal place of business at 2900 31st Street,
Suite 150, Santa Monica, California 90405 ("Stamps.com") and Westvaco a Delaware
corporation with its principal place of business at 299 Park Avenue, New York,
New York 10171 (the "Distributor").
RECITALS
WHEREAS, Stamps.com develops and publishes software which enables end-users
to purchase postage stamps electronically through Stamps.com's network system;
and
WHEREAS, pursuant to the terms and conditions of this Agreement, Stamps.com
desires to appoint Distributor as an independent contractor to distribute such
software and Distributor desires to provide such distribution services.
NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
-----------
As used in this Agreement, the following terms shall have the meanings set
forth in this Article 1:
"Agreement" has the meaning given to that term in the preamble to this
---------
Agreement.
"Stamps.com" has the meaning given to that term in the preamble to this
----------
Agreement.
"Business Day" means any weekday, Monday through Friday, excluding national
------------
holidays.
"Calendar-Related" refers to date values based on the Gregorian calendar as
----------------
defined in Encyclopedia Britannica, 15th edition, 1982, page 602, and to all
uses of those date values described in the Software documentation.
"Century Compliant" means that the Software satisfies the requirements set
-----------------
forth in Section 9.3 below.
"Century Noncompliant" means any failure of the Software to be Century
--------------------
Compliant.
"Confidential Information" has the meaning given to that term in Section
------------------------
8.4 of this Agreement.
"Customers" means end-user licensees of Software.
---------
"Date Data" means any Calendar-Related data in the inclusive range January
---------
1, 1900 through December 31, 2050 that the Software uses in any manner.
"Distributor" has the meaning given to that term in the preamble of this
-----------
Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
--------
1
<PAGE>
"Documentation" means the user manuals and other documentation provided by
-------------
Stamps.com for use with Software. Unless expressly excluded, the term "Software"
as used herein shall include the applicable Documentation.
"Effective Date" has the meaning given to that term in the preamble of this
--------------
Agreement.
"Exceptions" has the meaning given to that term in Section 11.
----------
"Excess Warranty" has the meaning given to this term in Section 12.
---------------
"Logo Program" has the meaning given to this term in Section 6.7.
------------
"Materials" has the meaning given to this term in Section 8.1.
---------
"OEM" means original equipment manufacturer.
---
"Service Fee Revenues" has the meaning given to this term in Section 5.2.
--------------------
"Software" means (i) the object code version of Stamps.com's software
--------
programs listed in Exhibit D, and (ii) the object code version of any updates,
modifications or revisions to such computer programs provided to Distributor
pursuant to the terms of this Agreement.
"Software License Agreement" means the agreement provided in Exhibit B.
--------------------------
"System Date" means any Calendar-Related date value in the inclusive range
-----------
from January 1, 1985 through December 31, 2035 (including the transition between
such values) that the Software will be able to use as its current date while
operating.
"Term" has the meaning given to that term in Section 16.1.
----
"Trademarks" means all then-current names, marks and designations used by
----------
Stamps.com.
"Warranty Period" has the meaning given to that term in Section 9.1.
---------------
2. APPOINTMENT OF DISTRIBUTOR.
--------------------------
2.1 Grant to Distributor. Subject to all the terms and conditions of this
--------------------
Agreement and the limitations set forth below, Stamps.com hereby grants and
Distributor hereby accepts, a non-transferable, exclusive right to market and
distribute copies of Software solely to Customers in the United States who
purchase the Stamps.com product through the Office Supply Channel including the
Office Superstores, Office Supply Wholesalers, Office Supply Dealer Buying
Groups, and Office Supply Contract Stationers. Such exclusivity only applies
with respect to the companies listed in Exhibit A, Section B, Number 4Stamps.com
may market and distribute the Software and other Stamps.com products through
other distributors in the Office Supply Channels discussed above. Furthermore,
this exclusivity is only offered in conjunction and connection with Columbian
Envelopes with the express purpose of cross merchandising and/or bundling
Columbian Envelopes with Stamps.com Software and other Stamps.com products.
Copies of Software are licensed for distribution and not sold. Distributor
shall not appoint, hire or otherwise engage subdealers to market or distribute
Software without the express written consent of Stamps.com.
2.2 Software License. Subject to all the terms and conditions of this
----------------
Agreement, Stamps.com hereby grants a non-exclusive, non-transferable, royalty-
free, sub-licensable and fully-paid-up license to Distributor, for so long as
this Agreement remains in effect, to use, reproduce and copy all Software and to
provide and make available to Customers, copies of all Software; provided that
-------------
the user of all such copies provided or made available to Customers shall be
subject to the terms of the applicable Software License
2
<PAGE>
Agreement between each such Customer and Stamps.com. The foregoing license is
provided by Stamps.com to Distributor free of charge.
2.3 Title and Ownership. Distributor hereby acknowledges that all right,
-------------------
title and interest in and to Software shall at all times remain that of
Stamps.com, including all rights in the nature of copyright, patent, trade-
secret and other intellectual property and proprietary rights with respect to
Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
-----------------------------------
3.1 Distribution of Software. Distributor shall use its best efforts to
-------------------------
distribute Software to Customers pursuant to the provisions set forth in Exhibit
A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use,
----------------------------
market or distribute Software other than as provided herein. Distributor agrees
not to (i) disassemble, decompile or otherwise reverse engineer Software or
otherwise attempt to learn the source code, structure, algorithms or ideas
underlying Software, (ii) take any action contrary to Stamps.com's Software
License Agreement, except as expressly and unambiguously allowed under this
Agreement, (iii) alter or modify Software, (iv) attempt to disable any security
devices or codes incorporated in Software, or (v) allow or assist others to do
any of the foregoing.
3.3 Competing Products. Distributor agrees that it does not [***]. The
------------------ ---
Distributor shall conduct its business in a manner that reflects favorably on
Stamps.com and its Software and shall [***].
---
3.4 Software Package; Software License Agreement. Subject to Exhibit A,
--------------------------------------------
Distributor shall ensure to the best of their ability that each copy of Software
distributed by or through Distributor to Customers shall include all components
of such Software as prepackaged by Stamps.com, including, without limitation,
(i) diskettes or other media bearing labels, (ii) Stamps.com's end user manuals
and Documentation, Stamps.com's Software License Agreement, and (iii) at the
option of Stamps.com, advertising and promotional materials supplied by
Stamps.com. The parties to each Software License Agreement shall be Stamps.com
and the Customer. The terms of the Software License Agreement shall be subject
to change by Stamps.com, at its sole discretion, upon reasonable notice to
Distributor. Stamps.com shall have the right to add to or discontinue any or all
Software, but only upon thirty (30) days' prior written notice to Distributor.
3.5 Third Party Infringement. Distributor shall notify Stamps.com
------------------------
promptly of any infringement of any copyrights, Trademarks, or other
intellectual property or proprietary rights relating to any Software. Stamps.com
may, in its sole discretion, take or not take whatever action it believes is
appropriate in connection with any such infringement. If Stamps.com elects to
take any such action, Distributor agrees to fully cooperate in connection
therewith. If Stamps.com initiates and prosecutes any action with respect to
infringement of any copyrights, Trademarks, or other proprietary rights relating
to any Software, Stamps.com shall be entitled to retain all amounts (including
court costs and attorneys' fees) awarded by way of judgment, settlement, or
compromise with respect thereto.
3.6 Compliance. Distributor shall ascertain and comply with all
----------
applicable state, federal and local laws and regulations and standards of
industry or professional conduct, including, without limitation, those
applicable to product claims, labeling, approvals, registrations and
notifications, the Internic, the Internet Assigned Numbers Authority and
Internet community standards, and shall also obtain Stamps.com's prior written
consent before adding any product claim, label, instructions, packaging or the
like to any copy of Software.
- -----------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
<PAGE>
3.7 Export Control. Distributor shall not export or re-export any
--------------
Software outside the United States without Stamps.com's express written consent.
In the event such consent is received, Distributor shall comply with the U.S.
Foreign Corrupt Practices Act and all export laws, restrictions, national
security controls and regulations of the United States and other applicable
foreign agency or authority, and shall not export or re-export, or allow the
export or re-export of Software, any component of Software, any other product or
Confidential Information or any copy or direct product of any of the foregoing
in violation of any such restrictions, laws or regulations, or to Cuba, Libya,
North Korea, Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any
national of such country) specified in the then current Supplement No. 1 to Part
740, or, in violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
4. DELIVERY TO DISTRIBUTOR.
-----------------------
4.1 Delivery. Stamps.com shall deliver a master copy of all Software to
--------
Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Stamps.com shall provide sufficient copies of all Documentation to
Distributor to allow Distributor to include such Documentation to Customers with
Software pursuant to Distributor's obligations as set forth in Exhibit A.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
-----------------------------------
5.1 Distributor's Prices to Customers. Distributor shall provide or make
---------------------------------
available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
---------------
Stamps.com shall pay Distributor [***] of the Service Fee Revenues paid by the
---
Customer. The percentage paid to Distributor includes all Service Fee Revenues
received by Stamps.com attributable to purchases by Customers using Software;
provided that, if any such Customer previously obtained any Software from any
person other than Distributor, the Service Fee Revenues attributable to
purchases by such Customer shall not be included for purposes of determining
Distributor's [***].
---
All [***] payable by Stamps.com to Distributor shall be paid within forty-
---
five (45) days after the end [***] in which Stamps.com receives the Service Fee
---
Revenues from which such fees are derived. As used herein, the term "Service
Fee Revenues" shall mean all service fees received by Stamps.com from purchases
of postage by Customers and shall specifically exclude [***]. Distributor may
---
provide the Software to certain trade or partners to distribute the Software
through such partners' retail store or warehouse, provided that Stamps.com gives
prior written approval of any distribution of the Software through any of
Distributor's commerce or trade partners; and provided further that Stamps.com's
----------------
total payment obligations under this Section 5.2 must not exceed the [***]
---
payable to Distributor. Any and all compensation payable to such trade or
commerce partner shall be payable by Distributor.
6. MARKETING AND ADVERTISING.
-------------------------
6.1 Distributor's General Undertaking, Representation, and Warranty.
---------------------------------------------------------------
Distributor represents, warrants, and covenants to Stamps.com that all
advertising and marketing materials relating to Software and/or Stamps.com that
are developed by Distributor shall be accurate in all respects.
- ---------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
<PAGE>
6.2 Distribution of Software. Distributor hereby agrees to advertise,
------------------------
market, sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Stamps.com or is a part of Stamps.com; provided
--------
that all advertisements and promotional materials, packaging and anything else
- ----
bearing a Trademark shall identify Stamps.com as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
----------------
governed by Section 8.3.
6.3 Marketing Materials. Stamps.com agrees to provide to Distributor, at
-------------------
no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Stamps.com generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
-------------
trademark and other property markings of Stamps.com are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Stamps.com and, except insofar as they are
distributed by Distributor in the course of its performance of its duties under
this Agreement, must be promptly returned to Stamps.com upon the expiration or
termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
-------------
promotional materials to Stamps.com for Stamps.com's review, and Stamps.com
shall have the right to approve or reject any such promotional materials in
Stamps.com's sole discretion.
6.4 Web Sites.
---------
(i) Hypertext Links. Utilizing the future site of
---------------
www.ColumbianEnvelopes.com, (the "New Site"), each party shall establish
reciprocal hypertext link to their respective Web sites.. With respect to each
hypertext link, linking users of Distributor's New Site and Stamps.com's Web
site, neither party shall alter the look, feel, or functionality of the other
party's Web site and shall not act to prevent the look and feel of the other
party's Web site (including, without limitation, page format, navigational bars,
colors, fonts, each party's trademarks, all hyperlinks appearing on each party's
Web site or, in general, the overall design of the other party's Web site) from
being displayed.
(ii) Responsibilities. Each party shall be solely responsible for the
----------------
development, operation, and maintenance of its Web site and for all materials
that appear on its Web site, including without limitation, (i) the technical
operation of its Web site and all related equipment, (ii) the accuracy and
appropriateness of materials posted on its Web site, and (iii) ensuring that
materials posted on its Web site do not violate any law, rule, or regulation, or
infringe upon the rights of any third party and are not defamatory, obscene or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other's Web site.
6.5 Advertising and Public Relations. Distributor may advertise Software
--------------------------------
in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in any
periodical, Distributor shall provide Stamps.com with notice (pursuant to
Section 17.8 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor shall engage in public relations
activities to encourage the publication, of articles and other publications
regarding Software.
6.6 Announcements. Within thirty (30) days following the Effective date,
-------------
Stamps.com and Distributor shall jointly issue a press release announcing
Distributor's appointment under this Agreement. Thereafter, each party shall
obtain the other party's prior written approval of all press releases that such
party issues with respect to this Agreement and the transactions contemplated by
this Agreement. Distributor also shall obtain Stamps.com's prior written
approval of all other press releases that Distributor issues with respect to
Software.
5
<PAGE>
6.7 Logo Program. During the Term, upon mutual agreement of the parties,
------------
Distributor shall participate in a promotional logo program ("Logo Program") as
follows: [***]. The logos used in the Logo Program shall be deemed Trademarks
---
for all purposes of this Agreement, including the license granted by Stamps.com
in Section 8.3.
7. INSTALLATION AND SUPPORT.
------------------------
Stamps.com shall be solely responsible for providing Customers with
installation, maintenance and technical integration support with respect to
Software. Distributor shall notify Stamps.com as soon as possible, and within
no more than twenty-four (24) hours or one (1) Business Day, whichever period is
longer, of Distributor's receipt of any Customer request for support or
assistance with respect to Software.
8. PROTECTION OF PROPRIETARY RIGHTS.
--------------------------------
8.1 Acknowledgment of Proprietary Materials. Distributor hereby
---------------------------------------
acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Stamps.com (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Stamps.com, the development of which required the expenditure of considerable
time and money by Stamps.com.
8.2 Proprietary Markings. Distributor hereby agrees to ensure that all
--------------------
copyright, trademark and other proprietary notices of Stamps.com affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified.
8.3 Stamps.com Trademarks. Distributor acknowledges that Stamps.com is
---------------------
the owner of all right, title and interest in and to all the Trademarks set
forth in Exhibit C, together with any new or revised names, designs or
designations that Stamps.com may adopt to identify it or any Software during the
Term, and Distributor agrees not to adopt or use any of such Trademarks in any
manner whatsoever except as expressly provided in this Agreement.
Stamps.com hereby grants Distributor a license during the Term to use the
Trademarks, provided that (i) they are used solely in connection with the
-------------
marketing and distribution of Software and in accordance with Stamps.com's
specifications as to style, color and typeface set forth in Exhibit C (ii) such
use shall be subject to prior written approval of Stamps.com, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of
this Agreement, Distributor will take all action necessary to transfer and
assign to Stamps.com, or its nominee, any right, title or interest in or to any
of the Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Stamps.com immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks anywhere
in the world or for any mark confusingly similar thereto. Stamps.com may elect
to apply for registration of one or more of the Trademarks anywhere in the world
at its expense, and, in such event, Stamps.com shall so notify Distributor and
Distributor shall assist and cooperate with Stamps.com in connection therewith.
Distributor also agrees not to use or contest, during or after the term of this
Agreement, any Trademark, name, mark or designation used by Stamps.com anywhere
in the world (or any name, mark or designation similar thereto). Distributor
acknowledges and agrees that all use of the Trademarks by Distributor shall
inure to the benefit of Stamps.com.
- ------------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
6
<PAGE>
8.4 Confidential Information. Distributor hereby agrees to hold any
------------------------
information, materials and data made available to it by Stamps.com that
reasonably should be understood to be confidential (collectively, "Confidential
Information"), in confidence and agrees not to use, copy, or disclose, or permit
any of its personnel to use, copy, or disclose the same for any purpose that is
not specifically authorized herein. For the purposes of this Section 8.4, the
terms and conditions of this Agreement and the Materials are Confidential
Information. Stamps.com's Confidential Information shall not be deemed to
include any information that (i) is or becomes part of the public domain through
no act or omission of Distributor; (ii) Distributor can establish through
competent written evidence to have been lawfully in Distributor's possession
prior to its disclosure hereunder; (iii) is subsequently acquired by Distributor
from sources under no confidentiality obligation to Stamps.com; or (iv)
Distributor can establish through competent written evidence to have been
independently developed by Distributor without reference to the Confidential
Information.
9. WARRANTY.
--------
9.1 Limited Warranty of Performance. Stamps.com warrants to Distributor
-------------------------------
that all Software will, under normal use, conform to the limited warranty
contained in the Software License Agreement applicable to such Software during
the warranty period set forth in such Agreement (the "Warranty Period"). The
foregoing warranty will apply to any version of Software issued by Stamps.com
distributed by Westvaco. Provided Stamps.com makes available updated software at
no charge for those customers that need to obtain current versions, Stamps.com
will assume no responsibility for claims resulting from the distribution of
superseded, outdated, or uncorrected versions of Software. As long as good faith
distribution has been maintained, Stamps.com will replace any outdated software
included in the Westvaco Columbian brand promotions and distribution. In no way
is Westvaco held responsible for outdated, changed, updated, or defective
software distributed through Westvaco in behalf of Stamps.com.
9.2 Exclusive Remedy for Breach of Warranty to Customer. If a Customer
---------------------------------------------------
contacts Stamps.com during the Warranty Period claiming a breach of the warranty
set forth in the then-current Software License Agreement provided by Distributor
to that Customer, Stamps.com will use reasonable efforts to resolve the claim
directly with such Customer by correcting or replacing such Software. If a
Customer contacts Distributor during the Warranty Period claiming any such
breach of warranty, Distributor shall promptly refer the matter to Stamps.com.
DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY SUCH CLAIM, IF
VERIFIED, IS EXPRESSLY LIMITED TO STAMPS.COM'S REASONABLE EFFORTS TO CORRECT OR
REPLACE SUCH DEFECTIVE SOFTWARE AND/OR DOCUMENTATION AT STAMPS.COM'S SOLE
EXPENSE.
9.3 Century Compliance.
------------------
Stamps.com represents that Calendar-Related processing by the Software of
the Date Data or of any System Date will not cause the Software to cease to
operate substantially in accordance with the Software documentation. Stamps.com
further represents that all data fields for the Date Data contained in the
Software are four-digit fields capable of indicating century and millennium and
that Stamps.com has verified through the testing procedures that no change in
the System Date (including the change from the year 1999 to the year 2000) will
cause the Software to cease to operate substantially in accordance with the
Software documentation. Notwithstanding any provision to the contrary set forth
in this Agreement, Stamps.com makes no representation or warranty that the
Software shall be Century Compliant when operating in conjunction with any
computer software, computer firmware, computer hardware, or any combination of
the foregoing supplied by third parties.
9.4 Exclusive Century Noncompliance Remedy.
--------------------------------------
In the event that the Software is Century Noncompliant in any material
respect, Stamps.com shall use commercially reasonable efforts to modify or
replace the Software, or applicable component thereof, to correct the Century
Noncompliance. If Stamps.com is unable, through the use of commercially
reasonable efforts, to modify or replace the Software to correct the Century
Noncompliance, Stamps.com shall pay to Distributor an
7
<PAGE>
amount in accordance with the limitation on liability set forth in Section 10.1
below as Distributor's sole remedy for Century Noncompliance of the Software.
9.5 Disclaimer. No representation or other affirmation of fact not set
----------
forth herein, including, without limitation, statements regarding capacity,
compliance, suitability for use, or performance of any Software, shall be or be
deemed to be a warranty or representation by Stamps.com for any purpose, or give
rise to any liability or obligation of Stamps.com whatsoever. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE, AND
NONINFRINGEMENT.
10. WARRANTY LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
---------------------------------------------------
10.1 NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. IN NO EVENT
----------------------------------------------------
SHALL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT FOR LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR
DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY. EXCEPT WITH RESPECT TO A BREACH OF SECTION 8.4 OR SECTION 11
AND DISTRIBUTOR'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 BELOW, THE
LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY STAMPS.COM TO DISTRIBUTOR
WITH RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE GIVING RISE TO SUCH CLAIM.
10.2 Injunctive Relief. Distributor acknowledges that any breach of its
------------------
obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Stamps.com will cause Stamps.com irreparable injury
for which there are inadequate remedies at law, and therefore Stamps.com will be
entitled to injunctive relief in addition to all other remedies provided by this
Agreement or available at law.
11. DEFENSE OF INTELLECTUAL PROPERTY CLAIMS.
---------------------------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that Distributor's
distribution and/or use of Software infringes a third party's United States
patent, copyright or trademark or misappropriates a third party's trade secret,
and if given access by Distributor to any information Distributor has regarding
such alleged infringement, Stamps.com agrees to defend and hold harmless
Distributor in such action at its expense and will pay any costs or damages
finally awarded against Distributor in any such action; provided that,
Stamps.com shall have had sole control of the defense of any such action and all
negotiations for its settlement or compromise. In the event that Stamps.com
reasonably believes that any Software infringes a copyright or trademark or
misappropriates a trade secret, Stamps.com may, at its option and at its
expense, either procure for Distributor the right to continue using any
Software, modify the same so it becomes non-infringing or allow the Distributor
to terminate this Agreement pursuant to Section 16.2(ii). Stamps.com shall not
have any liability to Distributor under any provision of this clause if any
infringement, or claim thereof, is based upon: (i) the use of Software in
combination with other computer hardware or software programs that Stamps.com
has not approved for use with such Software, (ii) Software that has been
modified by Distributor, (iii) Distributor's use of Software beyond the scope of
the license granted to it by Stamps.com hereunder, or (iv) Distributor's use
after notice of infringement or misappropriation. Distributor shall indemnify
Stamps.com and hold it harmless against any expense, judgment or loss for
infringement of any patent or other intellectual property right which results
from the exceptions set forth in the immediately preceding sentence of this
Section 11 (collectively, "Exceptions"). No costs or expenses shall be incurred
for the account of Stamps.com without the prior written consent of Stamps.com.
THE FOREGOING STATES THE ENTIRE LIABILITY OF STAMPS.COM WITH RESPECT TO
INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY
RIGHTS BY ANY SOFTWARE, OR ANY PART THEREOF, OR BY ITS OPERATION.
8
<PAGE>
12. DISTRIBUTOR'S INDEMNITY.
-----------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Stamps.com based on a claim arising from (i)
infringement of any patent or other intellectual property right which results
from the Exceptions; (ii) Distributor's grant of a warranty to any Customer
exceeding the limited warranty set forth in Section 9.1 of this Agreement (an
"Excess Warranty"), (iii) Distributor's material breach of this Agreement, or
(iv) Distributor's negligence or willful misconduct, Distributor shall indemnify
Stamps.com and hold Stamps.com harmless from and against any judgment, damage,
liability, or expenses, including reasonable attorney's fees, arising out of any
claim with respect to the breach or alleged breach of such Excess Warranty or
this Agreement or such negligence or willful misconduct; provided that
-------------
Distributor shall have had sole control of the defense of any such action and
all negotiations for its settlement or compromise; and, provided further, that
----------------
no cost or expense shall be incurred for the account of Distributor without
Distributor's prior written consent.
13. REPORTS AND RECORDS.
-------------------
13.1 Reports. Distributor shall keep complete records concerning all
-------
copies of Software and/or Stamps.com marketing material provided to, or
downloaded by, Distributor's retail or wholesale customers. Within ten (10)
Business Days of the close of each month during the Term, Distributor shall
complete and forward to Stamps.com a monthly report containing a summary setting
forth the number of copies of the Stamps.com Software or Stamps.com marketing
material provided to, Distributor's retail or wholesale customers.
13.2 Audit. Distributor agrees to maintain copies of all documentation
-----
relating to the distribution of Software under this Agreement. If requested in
writing by Stamps.com, Distributor shall permit Stamps.com to have access to
such documentation at Distributor's place of business during ordinary business
hours. Distributor agrees to keep for three (3) years after termination of this
Agreement records of all copies of Software provided to or downloaded by
Customers, as the case may be, in each case sufficient to adequately administer
a recall of any Software and to fully cooperate in any decision by Stamps.com to
recall, retrieve and/or replace any Software. Stamps.com agrees to maintain
copies of all documentation relating to Service Fee Revenues from Customer
purchases using Software distributed by Distributor hereunder. Within fifteen
(15) days after the end of each month, Stamps.com shall provide a report to
Distributor setting forth the revenues received by Stamps.com for such month
which are attributable to purchases from Customers using such Software. If
requested in writing by Distributor, Stamps.com shall permit, at Distributor's
sole expense, Distributor's independent certified public accountants, subject to
a non-disclosure agreement with Stamps.com, up to once per calendar year, to
have access solely to such documentation as is reasonably necessary for such
accountants to verify the amount of revenues set forth on such report; provided,
in no event shall such access include access to Stamps.com's servers. For a
period of three (3) years after termination of this Agreement, Stamps.com agrees
to keep records of all Customer purchases made pursuant to Software distributed
by Distributor hereunder.
14. RELATIONSHIP OF PARTIES.
-----------------------
Distributor is an independent contractor and nothing contained in this
Agreement shall be construed to constitute either party as a partner, joint
venturer, co-owner, employee, or agent of the other party, and neither party
shall hold itself out as such. Neither party has any right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf of
the other party, it being intended by both Distributor and Stamps.com that each
shall remain an independent contractor responsible for its own actions.
Distributor agrees to indemnify and hold Stamps.com harmless from and against
any damage or expenses, including reasonable attorney's fees, arising out of
Distributor's breach of the provisions of this Section 14.
9
<PAGE>
15. ASSIGNMENT.
----------
Distributor shall not assign, transfer or otherwise dispose of this
Agreement in whole or in part to any individual, corporation or other entity
without the prior written consent of Stamps.com.
16. TERM OF AGREEMENT; TERMINATION.
------------------------------
16.1 Term. This Agreement shall be effective as of the Effective Date and
----
shall have an initial term of [***]. Upon the expiration of such term (or any
---
renewal term), this Agreement shall [***] unless either party notifies the other
---
party at least [***] prior to the applicable renewal date of its intention to
---
not renew the Agreement (the initial term and any renewal term shall be
collectively referred to as the "Term").
16.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is appointed, or if any substantial part of the other party's assets is
the object of attachment, sequestration or other type of comparable proceeding,
and such proceeding is not vacated or terminated within thirty (30) days after
its commencement or institution.
(ii) Default. Either party may terminate this Agreement if the
-------
other party commits a material breach of any of the material terms or provisions
of this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Stamps.com may immediately terminate this Agreement in the event
Distributor breaches its obligations under Section 2.1, 3.2, 8.3 or 8.4.
(iii) Licenses. Either party may terminate this Agreement
--------
immediately if it or the other party is unable to obtain or renew any permit,
license or other governmental approval necessary to carry on the business
contemplated under this Agreement.
16.3 Termination for Convenience. Either party may terminate this
---------------------------
Agreement at any time with or without cause upon [***] prior written notice to
---
Distributor.
16.4 Rights Upon Termination. Upon termination of this Agreement by
-----------------------
expiration of the Term or otherwise, all further rights and obligations of the
parties shall cease, except that the parties shall not be relieved of (i) their
respective obligations to pay any moneys due or which become due as of or
subsequent to the date of termination, and (ii) any other respective obligations
under Sections 2.3, 3.2, 3.7, 8.1, 8.3 (first and third paragraphs only), 8.4,
9.2, 9.3, 10.1, 10.2, 11, 12, 13.1, 13.2, 14, 15, 16.4, 16.5, and 17.1 - 17.9.
Without limiting the foregoing, upon termination of this Agreement, all licenses
granted to Distributor hereunder shall terminate and each party shall remove any
links from its Web site to the other party's Web site.
16.5 Existing Licenses. All Software License Agreements in effect as of
-----------------
the date of termination or expiration of this Agreement shall survive such
termination or expiration and continue in effect until terminated in accordance
with their terms.
17. MISCELLANEOUS.
-------------
17.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil
- ---------------------
[***]Confidential treatment has been requested for the bracketed portions. The
confidential portion has been omitted and filed separately with the Securities
and Exchange Commission.
10
<PAGE>
commotion, acts of public enemies, blockade, embargo, strikes, outage of the
Internet, law, order, proclamation, regulation, ordinance, demand, or
requirement having a legal effect of any government or any judicial authority or
representative of any such government, or any other act whatsoever, whether
similar or dissimilar to those referred to in this Section 17.1, which is beyond
the reasonable control of the party affected, then the party so affected shall,
upon giving prior written notice to the other party, be excused from such
performance to the extent of such prevention, restriction, or interference,
provided that the party so affected shall use reasonable commercial efforts to
avoid or remove such causes of nonperformance, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed. The parties
agree and acknowledge that the foregoing shall include Stamps.com's failure to
obtain any necessary governmental approval required in connection with the use
of any Software, including without limitation any postal service approval.
17.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all previous negotiations, agreements
and commitments with respect thereto, and shall not be released, discharged,
changed or modified in any manner except by instruments signed by duly
authorized officers or representatives of each of the parties hereto. No course
of prior dealing between the parties and no usage of the trade shall be relevant
to supplement or explain any term used herein. Acceptance or acquiescence in a
course of performance rendered hereunder shall not be relevant to determine the
meaning of these terms and conditions even though the accepting or acquiescing
party has knowledge of the performance and opportunity for objection.
17.3 Applicable Law. Any claim or controversy relating in any way to this
--------------
Agreement shall be governed and interpreted exclusively in accordance with the
laws of the State of California and the United States without regard to the
United Nations Convention on Contracts for the International Sale of Goods. This
Agreement shall be deemed to have been made in, and shall be construed under,
the internal laws of the State of California, without regard to the principles
of conflicts of laws thereof and the United Nations Convention on Contracts for
the International Sale of Goods. In addition, Stamps.com and Distributor
acknowledge and agree that the courts located in such state shall have exclusive
jurisdiction in any action or proceedings with respect to this Agreement,
including the federal district courts located in such state.
17.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
(i) General Intent. Stamps.com and Distributor intend that all
--------------
problems and disputes relating to this Agreement or arising from the
transactions contemplated hereby ("Disputes") shall be resolved through the
procedures of this Section 17.4; provided, however, that neither party shall be
-----------------
under any obligation to proceed in accordance with this Section 17.4 with
respect to Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2,
8.3 or 8.4 of this Agreement, as to which a party may take any legal action in a
court of law or equity (without the necessity of posting any bond) to assert or
enforce a claim that it has against the other party under this Agreement. The
procedures in this Section 17.4 shall not replace or supersede any other remedy
to which a party is entitled under this Agreement or under applicable law.
(ii) Informal Resolution Efforts. Stamps.com and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Stamps.com and the president
or any vice president of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
17.4(ii), the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process, Stamps.com
and Distributor shall attempt in good faith to resolve their differences
voluntarily with the aid of an impartial mediator, who will attempt to
facilitate negotiations. The mediator shall be selected by mutual agreement of
Stamps.com and Distributor. If Stamps.com and Distributor cannot agree on a
mediator, the American Arbitration Association or shall designate a mediator at
the request of either party. Any mediator so designated must be acceptable to
both parties. The mediation shall be confidential, and the mediator may not
11
<PAGE>
testify for either party in any later proceeding relating to the Dispute. Each
party shall bear its own costs in the mediation. The fees and expenses of the
mediator shall be shared equally by the parties.
(iv) Court Actions. If Stamps.com and Distributor cannot resolve a
-------------
Dispute through mediation pursuant to Section 17.4(iii) above, either party may
seek further redress by taking legal action in a court of law or equity to
assert or enforce a claim that it has against the other party under this
Agreement.
17.5 Statute of Limitations. Any action by either party for breach of
----------------------
these terms and conditions must be commenced within one (1) year after the cause
of action has accrued.
17.6 Partial Illegality. If any provision of this Agreement or the
------------------
application thereof to any party or circumstances shall be declared void,
illegal or unenforceable, the remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event, the
parties shall use their best efforts to replace the invalid or unenforceable
provisions by a provision that, to the extent permitted by the applicable law,
achieves the purposes intended under the invalid or unenforceable provision. Any
deviation by either party from the terms and provisions of this Agreement to the
limited extent necessary to comply with applicable laws, rules or regulations
shall not be considered a breach of this Agreement.
17.7 Waiver of Compliance. Any failure by any party hereto to enforce at
--------------------
any time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every item and
condition of this Agreement.
17.8 Notices. All notices and other communications in connection with
-------
this Agreement shall be in writing and shall be sent to the respective parties
at addresses set forth below in this Section 17.8, or to such other addresses as
may be designated by the parties in writing from time to time in accordance with
this Section 17.8, by registered or certified air mail, postage prepaid, or by
express courier service, service fee prepaid, or by telefax with a hard copy to
follow via air mail or express courier service in accordance with this Section
17.8. All notices shall be deemed received (i) if given by hand, immediately,
(ii) if given by air mail, five (5) business days after posting, (iii) if given
by express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sender's identification line produced
by the recipient's telefax machine or in the sender's transmission confirmation
report as produced electronically by the sender's telefax machine.
To Stamps.com: Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
Attention: President
Facsimile: (310) 450-7337
With a copy to:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bruce R. Hallett, Esq.
Facsimile: (949) 790-6301
To Distributor:
---------------------------------
---------------------------------
---------------------------------
Attention:
-----------------------
12
<PAGE>
With a copy to:
---------------------------------
---------------------------------
---------------------------------
17.9 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duty authorized representative as of the Effective Date.
STAMPS.COM INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
DISTRIBUTOR:
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
13
<PAGE>
EXHIBIT A
A. Distributor obligations under the Agreement are as follows:
1. Distributor shall present retail promotional concepts to Westvaco's
Superstore partners (Office Depot and Officemax) and other office products
channel customers mentioned below.
2. Distributor shall offer beta versions of the Stamps.com software during
Phase III beta testing with the United States Postal Service using a link
from its website (ColumbianEnvelopes.com).
3. Distributor shall begin development of products in conjunction with new
[***].
---
4. Distributor shall have the [***].
---
5. Distributor agrees that designated consumer packages of Columbian brand
product will contain [***].
---
B. Stamps.com's obligations under this Agreement are as follows:
1. Stamps.com shall grant Columbian brand of envelopes and products the [***].
---
2. Stamps.com specifically [***].
---
3. Stamps.com shall at it sole discretion, from time to time, grant Westvaco
at [***].
---
4. Stamps.com shall not [***].
---
5. Stamps.com will track and catalog all customer transactions originating
from promotions executed in conjunction with Distributor using a series of
tracking numbers. These numbers will be either embedded in the software, if
software is distributed, or included in the advertising material provided
to customers. The numbers will be the basis of the reports that Stamps.com
will generate as part of Section 13.2. All Distributor's customers
registered with Stamps.com must have a tracking number in order for
Distributor to receive credit for such customer. Stamps.com will use
reasonable efforts with all it's customers to determine the source of the
customer for Distributor credit.
6. Stamps.com will provide the hypertext logo link described in Section 6.4
and will provide to Distributor [***] Stamps.com Web Site with attention
---
given to Distributor's brand.
- -----------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
EXHIBIT B
STANDARD SOFTWARE LICENSE AGREEMENT
-----------------------------------
STAMPS.COM, INC. END-USER SOFTWARE LICENSE AGREEMENT FOR STAMPS.COM INTERNET
POSTAGE SINGLE-USER VERSION
IMPORTANT: READ CAREFULLY
BEFORE OPENING THE SEALED ENVELOPE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL,
THE USE OF WHICH IS SUBJECT TO THIS END-USER SOFTWARE LICENSE AGREEMENT.
OPENING THE SEALED ENVELOPE CONSTITUTES YOUR AND (IF APPLICABLE) YOUR COMPANY'S
ASSENT TO AND ACCEPTANCE OF THIS END-USER SOFTWARE LICENSE AGREEMENT (THE
"LICENSE" OR "AGREEMENT"). IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MUST
NOT USE THIS PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR
---
ENFORCEABILITY OF THIS AGREEMENT, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL
BY OR ON BEHALF OF STAMPS.COM, INC. ("STAMPS.COM") SHALL BE CONSTRUED AS AN
INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
STAMPS.COM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
LICENSE AND WARRANTY:
The Software which accompanies this License (the "Software") is the property of
Stamps.com, and is protected by state, federal, and international copyright law.
Although Stamps.com continues to own the Software, you will have certain rights
to use the Software after your acceptance of this License. Except as may be
modified by a license addendum which accompanies this License, your rights and
obligations with respect to the use of this Software are as follows:
1. YOU MAY:
A. Use only one copy of any version of the Software contained on the enclosed
CD-ROM or floppy disk or downloaded from the Internet or any other online source
on a single computer;
B. Install the Software from its original distribution medium onto another
computer so long as any other copies of the Software are deleted or otherwise
made irreversibly inoperative;
C. Make one copy of the Software for archival purposes; and
D. Distribute unmodified and unregistered copies of the Software on the
original distribution medium for non-commercial use.
2. YOU MAY NOT:
A. Use the Software to purchase or print evidence of United States postage
until and unless you have been issued a Postal Meter License by the United
States Postal Service;
B. Sublicense, rent or lease any portion of the Software;
C. Reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative works
from the Software;
D. Copy or move any version of the Software after it has been installed and/or
registered to another computer;
E. Use the Software to commit or attempt to commit any form of fraud against or
engage in any form of criminal activity involving the United States Postal
Service or related agencies and organizations;
F. Authorize or allow other persons or entities to use the Software unless such
persons are members of your immediate family or household;
<PAGE>
G. Make known or allow to be made known information relating to Software serial
numbers, accounts, passwords, device identification numbers, or any other
information that could reveal or jeopardize the integrity of your Stamps.com
account; or
H. Install or use the Software on a computer located outside the United States
of America or its territories and possessions.
3. Warranty
Stamps.com warrants that the tangible media on which the Software is distributed
will be free from defects sixty (60) days from the date of delivery of the
Software to you. Your sole remedy in the event of a breach of this warranty will
be that Stamps.com will, at its option, replace any defective media returned to
Stamps.com within the warranty period. Stamps.com does not warrant that the
Software will not meet your requirements or that operation of the Software will
be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR
REPRESENTATION AS TO (1) THE ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE
VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999
THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES,
TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (2) WHETHER ANY OR ALL DATA
FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF
INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
THIS ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
4. Disclaimer of Damages
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL STAMPS.COM BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST
DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF STAMPS.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
IN NO CASE SHALL STAMPS.COM'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE
SOFTWARE. The disclaimers and limitations set forth above will apply regardless
of whether you accept the Software.
5. U.S. Government Restricted Rights:
If your company is an agency of the United States government, as defined in FAR
section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-
7014(a)(5) or otherwise, all software and accompanying documentation provided in
connection with this Agreement are "commercial items," "commercial computer
software," and/or "commercial computer software documentation." Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the United States government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
USE, DUPLICATION, OR DISCLOSURE BY THE UNITED STATES GOVERNMENT IS SUBJECT TO
RESTRICTIONS AS SET FORTH IN SUBPARAGRAPH (C) (1) (II) OF THE RIGHTS IN
TECHNICAL DATA AND COMPUTER SOFTWARE CLAUSE AT DFARS 252.227-7013 OR
SUBPARAGRAPHS (C) (1) AND (2) OF THE COMMERCIAL COMPUTER SOFTWARE RESTRICTED
RIGHTS CLAUSE AT 48 CFR 52.227-19, AS APPLICABLE.
6. Export:
<PAGE>
You may not export or re-export the Software outside the United States without
Stamps.com's express written consent. In the event such consent is received,
you must comply with the U.S. Foreign Corrupt Practices Act and all export laws,
restrictions, national security controls and regulations of the United States
and other applicable foreign agency or authority. You shall not export or re-
export, or allow the export or re-export of the Software, any component of
Software, or any copy of the Software in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to
any Group D:1 or E:2 country (or any national of such country) specified in the
then current Supplement No. 1 to Part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations (or any
successor regulations or supplement), except in compliance with and with all
licenses and approvals required under applicable export laws and regulations,
including without limitation, those of the U.S. Department of Commerce.
7. General
This Agreement will be governed by the laws of the State of California and any
applicable federal law or Postal Regulations. This Agreement may only be
modified by a license addendum which accompanies this License or by a written
document which has been signed by both you and Stamps.com. Should you have any
questions concerning this Agreement, or if you desire to contact Stamps.com for
any reason, please write:
Stamps.com, Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405.
<PAGE>
EXHIBIT C
STAMPS.COM'S TRADEMARKS
-----------------------
1. "S" Design
2. "S" Design with "Internet Postage"
3. "StampFX"
4. "stamps.com"
5. "Stamps for Home"
6. "Stamps for Office"
7. "Stamps for Networks"
8. "Stamps2000"
9. "Essurance"
*Free Postage Logo and trademark to be provided by Stamps.com
<PAGE>
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Stamps.com software
<PAGE>
EXHIBIT 10.20
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
DISTRIBUTOR AGREEMENT
---------------------
by and between
OFFICE DEPOT, INC.
and
STAMPS.COM INC.
Dated
January 15, 1999
- -------------------------------------------------------------------------------
<PAGE>
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 15/th/ day
of January, 1999 (the "Effective Date"), by and between Stamps.com Inc., a
Delaware corporation with its principal place of business at 2900 31st Street,
Suite 150, Santa Monica, California 90405 ("Stamps.com") and Office Depot, Inc.,
a Delaware corporation with its principal place of business at 2200 Old
Germantown Road, Delrey Beach, FL 33445 (the "Distributor").
RECITALS
WHEREAS, Stamps.com develops and publishes software which enables end-users
to purchase postage stamps electronically through Stamps.com's network system;
and
WHEREAS, pursuant to the terms and conditions of this Agreement, Stamps.com
desires to appoint Distributor as an independent contractor to distribute such
software and Distributor desires to provide such distribution services.
NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
-----------
As used in this Agreement, the following terms shall have the meanings set
forth in this Article 1:
"Agreement" has the meaning given to that term in the preamble to this
---------
Agreement.
"Stamps.com" has the meaning given to that term in the preamble to this
----------
Agreement.
"Business Day" means any weekday, Monday through Friday, excluding national
------------
holidays.
"Calendar-Related" refers to date values based on the Gregorian calendar as
----------------
defined in Encyclopedia Britannica, 15th edition, 1982, page 602, and to all
uses of those date values described in the Software documentation.
"Century Compliant" means that the Software satisfies the requirements set
-----------------
forth in Section 9.3 below.
"Century Noncompliant" means any failure of the Software to be Century
--------------------
Compliant.
"Confidential Information" has the meaning given to that term in Section
------------------------
8.4 of this Agreement.
"Customers" means end-user licensees of Software.
---------
"Date Data" means any Calendar-Related data in the inclusive range January
---------
1, 1900 through December 31, 2050 that the Software uses in any manner.
"Distributor" has the meaning given to that term in the preamble of this
------------
Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
1
<PAGE>
"Documentation" means the user manuals and other documentation provided by
-------------
Stamps.com for use with Software. Unless expressly excluded, the term "Software"
as used herein shall include the applicable Documentation.
"Effective Date" has the meaning given to that term in the preamble of this
--------------
Agreement.
"Exceptions" has the meaning given to that term in Section 11.
----------
"Excess Warranty" has the meaning given to this term in Section 12.
---------------
"Logo Program" has the meaning given to this term in Section 6.7.
------------
"Materials" has the meaning given to this term in Section 8.1.
---------
"OEM" means original equipment manufacturer.
---
"Service Fee Revenues" has the meaning given to this term in Section 5.2.
--------------------
"Software" means (i) the object code version of Stamps.com's software
---------
programs listed in Exhibit D, and (ii) the object code version of any updates,
modifications or revisions to such computer programs provided to Distributor
pursuant to the terms of this Agreement, all as unmodified by any party other
than Stamps.com.
"Software License Agreement" means the agreement provided in Exhibit B.
--------------------------
"System Date" means any Calendar-Related date value in the inclusive range
-----------
from January 1, 1985 through December 31, 2035 (including the transition between
such values) that the Software will be able to use as its current date while
operating.
"Term" has the meaning given to that term in Section 16.1.
----
"Trademarks" means all then-current names, marks and designations used by
----------
Stamps.com.
"Warranty Period" has the meaning given to that term in Section 9.1.
---------------
2. APPOINTMENT OF DISTRIBUTOR.
---------------------------
2.1 Grant to Distributor. Subject to all the terms and conditions of this
--------------------
Agreement and the limitations set forth below, Stamps.com hereby grants and
Distributor hereby accepts, a non-transferable, non-exclusive right to market
and distribute copies of Software solely to Customers in the United States.
Copies of Software are licensed for distribution and not sold. Distributor
shall not appoint, hire or otherwise engage subdealers to market or distribute
Software without the express written consent of Stamps.com.
2.2 Software License. Subject to all the terms and conditions of this
----------------
Agreement, Stamps.com hereby grants a non-exclusive, non-transferable, royalty-
free, sub-licensable and fully-paid-up license to Distributor, for so long as
this Agreement remains in effect, to use, reproduce and copy all Software and to
provide and make available to Customers, copies of all Software; provided that
-------------
the user of all such copies provided or made available to Customers shall be
subject to the terms of the applicable Software License Agreement between each
such Customer and Stamps.com. The foregoing license is provided by Stamps.com
to Distributor free of charge.
2.3 Title and Ownership. Distributor hereby acknowledges that all right,
-------------------
title and interest in and to Software shall at all times remain that of
Stamps.com, including all rights in the nature of copyright, patent,
2
<PAGE>
trade-secret and other intellectual property and proprietary rights with respect
to Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
-----------------------------------
3.1 Distribution of Software. Distributor shall use its commercially
------------------------
reasonable efforts to distribute Software to Customers pursuant to the
provisions set forth in Exhibit A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use, market
---------------------------
or distribute Software other than as provided herein. Distributor agrees not to
(i) disassemble, decompile or otherwise reverse engineer Software or otherwise
attempt to learn the source code, structure, algorithms or ideas underlying
Software, (ii) take any action contrary to Stamps.com's Software License
Agreement, except as expressly and unambiguously allowed under this Agreement,
(iii) alter or modify Software, (iv) attempt to disable any security devices or
codes incorporated in Software, or (v) allow or assist others to do any of the
foregoing.
3.3 Competing Products. Distributor agrees that it does not [***].
------------------ ---
Distributor shall conduct its business in a manner that reflects favorably on
Stamps.com and Software.
3.4 Software Package; Software License Agreement. Subject to Exhibit A,
--------------------------------------------
Distributor shall ensure that each copy of Software distributed by or through
Distributor to Customers shall include all components of such Software as
prepackaged by Stamps.com, including, without limitation, (i) diskettes or other
media bearing labels, (ii) Stamps.com's end user manuals and Documentation,
Stamps.com's Software License Agreement, and (iii) at the option of Stamps.com,
advertising and promotional materials supplied by Stamps.com. The parties to
each Software License Agreement shall be Stamps.com and the Customer. The terms
of the Software License Agreement shall be subject to change by Stamps.com, at
its sole discretion, upon reasonable notice to Distributor. Stamps.com shall
have the right to add to or discontinue any or all Software, but only upon
thirty (30) days' prior written notice to Distributor.
3.5 Third Party Infringement. Distributor shall notify Stamps.com promptly
------------------------
of any infringement of any copyrights, Trademarks, or other intellectual
property or proprietary rights relating to any Software. Stamps.com may, in its
sole discretion, take or not take whatever action it believes is appropriate in
connection with any such infringement. If Stamps.com elects to take any such
action, Distributor agrees to reasonably cooperate, at no expense to
Distributor, in connection therewith. If Stamps.com initiates and prosecutes any
action with respect to infringement of any copyrights, Trademarks, or other
proprietary rights relating to any Software, Stamps.com shall be entitled to
retain all amounts (including court costs and attorneys' fees) awarded by way of
judgment, settlement, or compromise with respect thereto.
3.6 Compliance. Distributor shall ascertain and comply with all applicable
----------
state, federal and local laws and regulations and standards of industry or
professional conduct, including, without limitation, those applicable to product
claims, labeling, approvals, registrations and notifications, the Internic, the
Internet Assigned Numbers Authority and Internet community standards, and shall
also obtain Stamps.com's prior written consent before adding any product claim,
label, instructions, packaging or the like to any copy of Software.
3.7 Export Control. Distributor shall not export or re-export any Software
--------------
outside the United States without Stamps.com's express written consent. In the
event such consent is received, Distributor shall comply with the U.S. Foreign
Corrupt Practices Act and all export laws, restrictions, national security
controls and regulations of the United States and other applicable foreign
agency or authority, and shall not export or re-export, or allow the export or
re-export of Software, any component of Software, any other product or
- -----------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
<PAGE>
Confidential Information or any copy or direct product of any of the foregoing
in violation of any such restrictions, laws or regulations, or to Cuba, Libya,
North Korea, Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any
national of such country) specified in the then current Supplement No. 1 to Part
740, or, in violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
4. DELIVERY TO DISTRIBUTOR.
-----------------------
4.1 Delivery. Stamps.com shall deliver a master copy of all Software to
--------
Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Stamps.com shall provide sufficient copies of all Documentation to
Distributor to allow Distributor to include such Documentation to Customers with
Software pursuant to Distributor's obligations as set forth in Exhibit A.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
-----------------------------------
5.1 Distributor's Prices to Customers. Distributor shall provide or make
---------------------------------
available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
---------------
Stamps.com shall pay Distributor a [***] of all Service Fee Revenues received by
---
Stamps.com attributable to purchases by Customers using Software; provided that,
-------------
if any such Customer previously obtained any Software from any person other than
Distributor, the Service Fee Revenues attributable to purchases by such Customer
shall not be included for purposes of determining Distributor's [***] payable by
---
Stamps.com to Distributor shall be paid within forty-five (45) days after the
[***] in which Stamps.com receives the Service Fee Revenues from which such fees
- ----
are derived. As used herein, the term "Service Fee Revenues" shall mean all
service fees received by Stamps.com from purchases of postage by Customers and
shall specifically exclude [***].
---
6. MARKETING AND ADVERTISING.
-------------------------
6.1 Distributor's General Undertaking, Representation, and Warranty.
---------------------------------------------------------------
Distributor represents, warrants, and covenants to Stamps.com that in all
advertising and marketing materials relating to Software and/or Stamps.com that
are developed by Distributor, Distributor shall endeavor to be accurate in all
respects.
6.2 Distribution of Software. Distributor hereby agrees to advertise,
------------------------
market, sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Stamps.com or is a part of Stamps.com; provided
--------
that all advertisements and promotional materials, packaging and anything else
- ----
bearing a Trademark shall identify Stamps.com as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
----------------
governed by Section 8.3.
6.3 Marketing Materials. Stamps.com agrees to provide to Distributor, at
-------------------
no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Stamps.com generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
-------------
trademark and other property markings of Stamps.com are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Stamps.com and, except
- --------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
<PAGE>
insofar as they are distributed by Distributor in the course of its performance
of its duties under this Agreement, must be promptly returned to Stamps.com upon
the expiration or termination of this Agreement. Distributor may develop its own
promotional materials for Software, provided that Distributor shall submit any
-------------
such promotional materials to Stamps.com for Stamps.com's review, and Stamps.com
shall have the right to approve or reject any such promotional materials in
Stamps.com's sole discretion.
6.4 Web Sites.
---------
(i) Hypertext Links. If Distributor has a World Wide Web site ("Web
---------------
site"), Distributor shall establish a hypertext link to Stamps.com's Web site
within thirty (30) days of the Effective Date. With respect to each hypertext
link linking users of Distributor's Web site to Stamps.com's Web site,
Distributor shall not alter the look, feel, or functionality of Stamps.com's Web
site and shall not act to prevent the look and feel of Stamps.com's Web site
(including, without limitation, page format, navigational bars, colors, fonts,
Stamps.com's trademarks, all hyperlinks appearing on Stamps.com's Web site or,
in general, the overall design of Stamps.com's Web site) from being displayed.
(ii) Responsibilities. Each party shall be solely responsible for the
----------------
development, operation, and maintenance of its Web site and for all materials
that appear on its Web site, including without limitation, (i) the technical
operation of its Web site and all related equipment, (ii) the accuracy and
appropriateness of materials posted on its Web site, and (iii) ensuring that
materials posted on its Web site do not violate any law, rule, or regulation, or
infringe upon the rights of any third party and are not defamatory, obscene or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other's Web site.
6.5 Advertising and Public Relations. Distributor may advertise Software
--------------------------------
in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in any
periodical, Distributor shall provide Stamps.com with notice (pursuant to
Section 17.8 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor shall engage in public relations
activities to encourage the publication, of articles and other publications
regarding Software.
6.6 Announcements. Within thirty (30) days following the Effective date,
-------------
Stamps.com and Distributor shall jointly issue a press release announcing
Distributor's appointment under this Agreement. Thereafter, each party shall
obtain the other party's prior written approval of all press releases that such
party issues with respect to this Agreement and the transactions contemplated by
this Agreement. Distributor also shall obtain Stamps.com's prior written
approval of all other press releases that Distributor issues with respect to
Software.
6.7 Logo Program. During the Term, upon mutual agreement of the parties,
------------
Distributor shall participate in a promotional logo program ("Logo Program") as
follows: [***]. The logos used in the Logo Program shall be deemed Trademarks
---
for all purposes of this Agreement, including the license granted by Stamps.com
in Section 8.3 Section 8.3.
7. INSTALLATION AND SUPPORT.
------------------------
Stamps.com shall be solely responsible for providing Customers with
installation, maintenance and technical integration support with respect to
Software. Distributor shall notify Stamps.com as soon as possible, and within
no more than twenty-four (24) hours or one (1) Business Day, whichever period is
longer, of Distributor's receipt of any Customer request for support or
assistance with respect to Software.
8. PROTECTION OF PROPRIETARY RIGHTS.
--------------------------------
- --------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
<PAGE>
8.1 Acknowledgment of Proprietary Materials. Distributor hereby
---------------------------------------
acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Stamps.com (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Stamps.com, the development of which required the expenditure of considerable
time and money by Stamps.com.
8.2 Proprietary Markings. Distributor hereby agrees to ensure that all
--------------------
copyright, trademark and other proprietary notices of Stamps.com affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified by Distributor.
8.3 Stamps.com Trademarks. Distributor acknowledges that Stamps.com is the
---------------------
owner of all right, title and interest in and to all the Trademarks set forth in
Exhibit C, together with any new or revised names, designs or designations that
Stamps.com may adopt to identify it or any Software during the Term, and
Distributor agrees not to adopt or use any of such Trademarks in any manner
whatsoever except as expressly provided in this Agreement.
Stamps.com hereby grants Distributor a license during the Term to use the
Trademarks, provided that (i) they are used solely in connection with the
-------------
marketing and distribution of Software and in accordance with Stamps.com's
specifications as to style, color and typeface set forth in Exhibit C (ii) such
use shall be subject to prior written approval of Stamps.com, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of
this Agreement, Distributor will take all action necessary to transfer and
assign to Stamps.com, or its nominee, any right, title or interest in or to any
of the Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Stamps.com immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks anywhere
in the world or for any mark confusingly similar thereto. Stamps.com may elect
to apply for registration of one or more of the Trademarks anywhere in the world
at its expense, and, in such event, Stamps.com shall so notify Distributor and
Distributor shall assist and cooperate with Stamps.com in connection therewith.
Distributor also agrees not to use or contest, during or after the term of this
Agreement, any Trademark, name, mark or designation used by Stamps.com anywhere
in the world (or any name, mark or designation similar thereto). Distributor
acknowledges and agrees that all use of the Trademarks by Distributor shall
inure to the benefit of Stamps.com.
8.4 Confidential Information. Distributor hereby agrees to hold any
------------------------
information, materials and data made available to it by Stamps.com that
reasonably should be understood to be confidential (collectively, "Confidential
Information"), in confidence and agrees not to use, copy, or disclose, or permit
any of its personnel to use, copy, or disclose the same for any purpose that is
not specifically authorized herein. For the purposes of this Section 8.4, the
terms and conditions of this Agreement and the Materials are Confidential
Information of Stamps.com.
9. WARRANTY.
--------
9.1 Limited Warranty of Performance. 9.1.1 Stamps.com warrants to
-------------------------------
Distributor, for a period of ninety (90) days following delivery to a Customer
(the "Warranty Period"), that the Software will substantially conform to the
Documentation and that the media on which the Software is provided is free from
material defects. The foregoing warranty will apply only to the most current
version of Software issued by Stamps.com from time to time. Stamps.com assumes
no responsibility for claims resulting from the distribution of superseded,
outdated, or uncorrected versions of Software.
9.1.2 Stamps.com warrants that Calendar-Related processing by the Software
of the Date Data or of any System Date will not cause the Software to cease to
operate substantially in accordance with the
6
<PAGE>
Documentation. Stamps.com further warrants that all data fields for the Date
Data contained in the Software are four-digit fields capable of indicating
century and millennium and that Stamps.com has verified through the testing
procedures that no change in the System Date (including the change from the year
1999 to the year 2000) will cause the Software to cease to operate substantially
in accordance with the Documentation. Notwithstanding any provision to the
contrary set forth in this Agreement, Stamps.com makes no representation or
warranty as to that the Software will be Century Compliant when it is used with
any Century Noncompliant computer software, computer firmware, computer
hardware, or any combination of the foregoing supplied by third parties.
9.2 Exclusive Remedy. Software supplied by Stamps.com hereunder which does
----------------
not comply with the warranties set forth in (i) Section 9.1.1 and is returned
(by Distributor only) to Stamps.com during the Warranty Period (with proof of
the date of purchase) or (ii) Section 9.1.2 and is returned (by Distributor
only) to Stamps.com will be corrected or replaced at no expense to Distributor,
provided Distributor returns the Software in its original packaging (if
applicable) and bears the shipping cost of returning the Software to Stamps.com
(except in the event the defective Software was downloaded by the end-user from
Stamps.com's Web site, in which case Stamps.com will advise the end-user to
contact Stamps.com directly for warranty claims). Stamps.com will bear the
shipping cost of replacement Software to Distributor. If Stamps.com cannot, or
determines that it is not commercially practical to, correct or replace the
returned Software, Stamps.com will refund the purchase price of the returned
Software paid by Distributor. The warranty set forth in Section 9.1 shall not
apply to any version of the Software which has been discontinued or superseded
or updated by a new version or release made available to Distributor (or
Distributor's end-user customer) by Stamps.com for distribution hereunder.
DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY WARRANTY CLAIM, IF
VERIFIED, IS EXPRESSLY LIMITED TO STAMPS.COM'S REASONABLE EFFORTS TO CORRECT OR
REPLACE SUCH DEFECTIVE SOFTWARE AND/OR DOCUMENTATION AT STAMPS.COM'S SOLE
EXPENSE OR REFUND THE PRICE PAID BY DISTRIBUTOR.
9.3 Disclaimer.
----------
No representation or other affirmation of fact not set forth herein, including,
without limitation, statements regarding capacity, compliance, suitability for
use, or performance of any Software, shall be or be deemed to be a warranty or
representation by Stamps.com for any purpose, or give rise to any liability or
obligation of Stamps.com whatsoever. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, COMPLIANCE, AND NON INFRINGEMENT, OR CENTURY COMPLIANCE.
10. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
------------------------------------------
10.1 No Consequential Damages; Limitation of Liability. IN NO EVENT SHALL
-------------------------------------------------
EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR
LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR
INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
EXCEPT WITH RESPECT TO A BREACH OF SECTION 8.4 AND THE INDEMNIFICATION
OBLIGATIONS UNDER SECTION 12 BELOW, THE LIABILITY OF EITHER PARTY FOR ANY CLAIM
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT
PAID BY STAMPS.COM TO DISTRIBUTOR WITH RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE
GIVING RISE TO SUCH CLAIM.
10.2 Injunctive Relief. Distributor acknowledges that any breach of its
-----------------
obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Stamps.com will cause Stamps.com irreparable injury
for which there are inadequate remedies at law, and therefore Stamps.com will be
entitled to injunctive relief in addition to all other remedies provided by this
Agreement or available at law.
7
<PAGE>
11. DEFENSE OF INTELLECTUAL PROPERTY CLAIMS.
---------------------------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that Distributor's
distribution and/or use of Software infringes a third party's copyright or
trademark or misappropriates a third party's trade secret, and if given access
by Distributor to any information Distributor has regarding such alleged
infringement, Stamps.com agrees to defend and hold harmless Distributor in such
action at its expense and will pay any costs or damages finally awarded against
Distributor in any such action; provided that, Stamps.com shall have had sole
-------------
control of the defense of any such action and all negotiations for its
settlement or compromise. In the event that Stamps.com reasonably believes that
any Software infringes a copyright or trademark or misappropriates a trade
secret, Stamps.com may, at its option and at its expense, either procure for
Distributor the right to continue using any Software, modify the same so it
becomes non-infringing or allow the Distributor to terminate this Agreement
pursuant to Section 16.2(ii). Stamps.com shall not have any liability to
Distributor under any provision of this clause if any infringement, or claim
thereof, is based upon: (i) the Distributor's use of Software in combination
with other computer hardware or software programs that Stamps.com has not
approved for use with such Software, (ii) Software that has been modified by
Distributor, (iii) Distributor's use of Software beyond the scope of the license
granted to it by Stamps.com hereunder, (iv) Distributor's use after notice of
infringement or misappropriation, or (v) Infringement by the Distributor
relating solely to the use of Software but not the Software itself. Distributor
shall indemnify Stamps.com and hold it harmless against any expense, judgment or
loss for infringement of any patent or other intellectual property right which
results from the exceptions set forth in the immediately preceding sentence of
this Section 11 (collectively, "Exceptions"). No costs or expenses shall be
incurred for the account of Stamps.com without the prior written consent of
Stamps.com. THE FOREGOING STATES THE ENTIRE LIABILITY OF STAMPS.COM WITH
RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY ANY SOFTWARE, OR ANY PART THEREOF, OR BY ITS OPERATION.
12. INDEMNITY.
---------
12.1 Distributor's Indemnity. If notified promptly in writing of any
-----------------------
action (and all prior claims relating to such action) against Stamps.com based
on a claim arising from (i) infringement of any patent or other intellectual
property right which results from the Exceptions; (ii) Distributor's grant of a
warranty to any Customer exceeding the limited warranty set forth in Section 9.1
of this Agreement (an "Excess Warranty"), (iii) Distributor's material breach of
this Agreement, or (iv) Distributor's negligence or willful misconduct,
Distributor shall indemnify Stamps.com and hold Stamps.com harmless from and
against any judgment, damage, liability, or expenses, including reasonable
attorney's fees, arising out of any claim with respect to the breach or alleged
breach of such Excess Warranty or this Agreement or such negligence or willful
misconduct; provided that Distributor shall have had sole control of the defense
-------------
of any such action and all negotiations for its settlement or compromise; and,
provided further, that no cost or expense shall be incurred for the account of
- ----------------
Distributor without Distributor's prior written consent.
12.2 Stamps.com's Indemnity. If notified promptly in writing of any action
----------------------
(and all prior claims relating to such action) against Distributor based on a
claim arising from (i) Stamps.com's material breach of this Agreement, or (ii)
Stamps.com's negligence or willful misconduct, Stamps.com shall indemnify
Distributor and hold Distributor harmless from and against any judgment, damage,
liability, or expenses, including reasonable attorney's fees, arising out of any
claim with respect to the breach or alleged breach of this Agreement or such
negligence or willful misconduct; provided that Stamps.com shall have had sole
-------------
control of the defense of any such action and all negotiations for its
settlement or compromise; and, provided further, that no cost or expense shall
----------------
be incurred for the account of Stamps.com without Stamps.com's prior written
consent.
13. REPORTS AND RECORDS.
-------------------
13.1 Reports. Distributor shall keep complete records concerning all
-------
copies of Software provided to, or downloaded by, Customers, as the case may be.
Within ten (10) Business Days of the close of each month
8
<PAGE>
during the Term, Distributor shall complete and forward to Stamps.com a monthly
report containing a summary setting forth the number of copies of Software
provided to, or downloaded by, Customers, as the case may be.
13.2 Audit. Distributor agrees to maintain copies of all documentation
-----
relating to the distribution of Software under this Agreement. If requested in
writing by Stamps.com, Distributor shall permit Stamps.com to have access to
such documentation at Distributor's place of business during ordinary business
hours. Distributor agrees to keep for three (3) years after termination of this
Agreement records of all copies of Software provided to or downloaded by
Customers, as the case may be, in each case sufficient to adequately administer
a recall of any Software and to fully cooperate in any decision by Stamps.com to
recall, retrieve and/or replace any Software. Stamps.com agrees to maintain
copies of all documentation relating to Service Fee Revenues from Customer
purchases using Software distributed by Distributor hereunder. Within fifteen
(15) days after the end of each month, Stamps.com shall provide a report to
Distributor setting forth the revenues received by Stamps.com for such month
which are attributable to purchases from Customers using such Software. If
requested in writing by Distributor, Stamps.com shall permit, at Distributor's
sole expense, Distributor's independent certified public accountants, subject to
a non-disclosure agreement with Stamps.com, up to once per calendar year, to
have access solely to such documentation as is reasonably necessary for such
accountants to verify the amount of revenues set forth on such report; provided,
in no event shall such access include access to Stamps.com's servers. For a
period of three (3) years after termination of this Agreement, Stamps.com agrees
to keep records of all Customer purchases made pursuant to Software distributed
by Distributor hereunder.
14. RELATIONSHIP OF PARTIES.
-----------------------
Distributor is an independent contractor and nothing contained in this
Agreement shall be construed to constitute either party as a partner, joint
venturer, co-owner, employee, or agent of the other party, and neither party
shall hold itself out as such. Neither party has any right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf of
the other party, it being intended by both Distributor and Stamps.com that each
shall remain an independent contractor responsible for its own actions.
Distributor agrees to indemnify and hold Stamps.com harmless from and against
any damage or expenses, including reasonable attorney's fees, arising out of
Distributor's breach of the provisions of this Section 14.
15. ASSIGNMENT.
----------
Distributor shall not assign, transfer or otherwise dispose of this
Agreement in whole or in part to any individual, corporation or other entity
without the prior written consent of Stamps.com, except that Distributor may
assign or transfer this Agreement to an affiliate or parent of Distributor at
Distributor's discretion without the necessity of any consent requirement,
provided that Distributor shall continue to remain obligated to Stamps.com for
the assignee's performance or breach of Distributor's duties and obligations
hereunder.
16. TERM OF AGREEMENT; TERMINATION.
------------------------------
16.1 Term. This Agreement shall be effective as of the Effective Date and
----
shall have an initial term of [***]. Upon the expiration of such term (or any
---
renewal term), this Agreement shall [***] unless either party notifies the other
---
party at least [***] days prior to the applicable renewal date of its intention
---
to not renew the Agreement (the initial term and any renewal term shall be
collectively referred to as the "Term").
16.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is
- --------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
9
<PAGE>
appointed, or if any substantial part of the other party's assets is the object
of attachment, sequestration or other type of comparable proceeding, and such
proceeding is not vacated or terminated within thirty (30) days after its
commencement or institution.
(ii) Default. Either party may terminate this Agreement if the other
-------
party commits a material breach of any of the material terms or provisions of
this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Stamps.com may immediately terminate this Agreement in the event
Distributor breaches its obligations under Section 2.1, 3.2, 8.3 or 8.4.
(iii) Licenses. Either party may terminate this Agreement immediately
--------
if it or the other party is unable to obtain or renew any permit, license or
other governmental approval necessary to carry on the business contemplated
under this Agreement.
16.3 Termination for Convenience. Notwithstanding anything herein to
---------------------------
the contrary, either party may terminate this Agreement at any time with or
without cause upon [***] prior written notice.
---
16.4 Rights Upon Termination. Upon termination of this Agreement by
-----------------------
expiration of the Term or otherwise, all further rights and obligations of the
parties shall cease, except that the parties shall not be relieved of (i) their
respective obligations to pay any moneys due or which become due as of or
subsequent to the date of termination, and (ii) any other respective obligations
under Sections 2.3, 3.2, 3.3, 3.7, 8.1, 8.3 (first and third paragraphs only),
8.4, 9.2, 9.3, 10.1, 10.2, 11, 12, 13.1, 13.2, 14, 15, 16.4, 16.5, and 17.1 -
17.9. Without limiting the foregoing, upon termination of this Agreement, all
licenses granted to Distributor hereunder shall terminate and each party shall
remove any links from its Web site to the other party's Web site.
16.5 Existing Licenses. All Software License Agreements in effect as of the
-----------------
date of termination or expiration of this Agreement shall survive such
termination or expiration and continue in effect until terminated in accordance
with their terms.
17. MISCELLANEOUS.
-------------
17.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil commotion,
acts of public enemies, blockade, embargo, strikes, outage of the Internet, law,
order, proclamation, regulation, ordinance, demand, or requirement having a
legal effect of any government or any judicial authority or representative of
any such government, or any other act whatsoever, whether similar or dissimilar
to those referred to in this Section 17.1, which is beyond the reasonable
control of the party affected, then the party so affected shall, upon giving
prior written notice to the other party, be excused from such performance to the
extent of such prevention, restriction, or interference, provided that the party
so affected shall use reasonable commercial efforts to avoid or remove such
causes of nonperformance, and shall continue performance hereunder with
reasonable dispatch whenever such causes are removed. The parties agree and
acknowledge that the foregoing shall include Stamps.com's failure to obtain any
necessary governmental approval required in connection with the use of any
Software, including without limitation any postal service approval.
17.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all previous negotiations, agreements
and commitments with respect thereto, and shall not be released, discharged,
changed or modified in any manner except by instruments signed by duly
authorized officers or representatives of each of the parties hereto. No course
of prior dealing between the parties and no usage of the trade shall be relevant
to supplement or explain any term used herein. Acceptance or acquiescence in a
course of performance rendered hereunder shall not be relevant to determine the
meaning of these terms and
- --------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
10
<PAGE>
conditions even though the accepting or acquiescing party has knowledge of the
performance and opportunity for objection.
17.3 Applicable Law. Any claim or controversy relating in any way to this
--------------
Agreement shall be governed and interpreted exclusively in accordance with the
laws of the State of California and the United States without regard to the
United Nations Convention on Contracts for the International Sale of Goods. This
Agreement shall be deemed to have been made in, and shall be construed under,
the internal laws of the State of California, without regard to the principles
of conflicts of laws thereof and the United Nations Convention on Contracts for
the International Sale of Goods. Any mediation under Section 17.4(iii) below
shall be conducted in Los Angeles County, California. In addition, Stamps.com
and Distributor acknowledge and agree that the courts located in such county
shall have exclusive jurisdiction in any action or proceedings with respect to
this Agreement, including the federal district courts located in such county.
17.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
(i) General Intent. Stamps.com and Distributor intend that all
--------------
problems and disputes relating to this Agreement or arising from the
transactions contemplated hereby ("Disputes") shall be resolved through the
procedures of this Section 17.4; provided, however, that neither party shall be
-----------------
under any obligation to proceed in accordance with this Section 17.4 with
respect to Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2,
8.3 or 8.4 of this Agreement, as to which a party may take any legal action in a
court of law or equity (without the necessity of posting any bond) to assert or
enforce a claim that it has against the other party under this Agreement. The
procedures in this Section 17.4 shall not replace or supersede any other remedy
to which a party is entitled under this Agreement or under applicable law.
(ii) Informal Resolution Efforts. Stamps.com and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Stamps.com and the president
or any vice president of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
17.4(ii), the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process,
Stamps.com and Distributor shall attempt in good faith to resolve their
differences voluntarily with the aid of an impartial mediator, who will attempt
to facilitate negotiations. The mediator shall be selected by mutual agreement
of Stamps.com and Distributor. If Stamps.com and Distributor cannot agree on a
mediator, the American Arbitration Association or JAMS/Endispute shall designate
a mediator at the request of either party. Any mediator so designated must be
acceptable to both parties. The mediation shall be confidential, and the
mediator may not testify for either party in any later proceeding relating to
the Dispute. Each party shall bear its own costs in the mediation. The fees
and expenses of the mediator shall be shared equally by the parties.
(iv) Court Actions. If Stamps.com and Distributor cannot resolve a
-------------
Dispute through mediation pursuant to Section 17.4(iii) above, either party may
seek further redress by taking legal action in a court of law or equity to
assert or enforce a claim that it has against the other party under this
Agreement.
17.5 Statute of Limitations. Any action by the Distributor for breach of
----------------------
these terms and conditions must be commenced within one (1) year after the cause
of action has accrued.
17.6 Partial Illegality. If any provision of this Agreement or the
------------------
application thereof to any party or circumstances shall be declared void,
illegal or unenforceable, the remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event, the
parties shall use their best efforts to replace the invalid or unenforceable
provisions by a provision that, to the extent permitted by the applicable law,
achieves the purposes intended under the invalid or unenforceable provision. Any
deviation by either party
11
<PAGE>
from the terms and provisions of this Agreement to the limited extent necessary
to comply with applicable laws, rules or regulations shall not be considered a
breach of this Agreement.
17.7 Waiver of Compliance. Any failure by any party hereto to enforce at
--------------------
any time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every item and
condition of this Agreement.
17.8 Notices. All notices and other communications in connection with this
-------
Agreement shall be in writing and shall be sent to the respective parties at
addresses set forth below in this Section 17.8, or to such other addresses as
may be designated by the parties in writing from time to time in accordance with
this Section 17.8, by registered or certified air mail, postage prepaid, or by
express courier service, service fee prepaid, or by telefax with a hard copy to
follow via air mail or express courier service in accordance with this Section
17.8. All notices shall be deemed received (i) if given by hand, immediately,
(ii) if given by air mail, five (5) business days after posting, (iii) if given
by express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sender's identification line produced
by the recipient's telefax machine or in the sender's transmission confirmation
report as produced electronically by the sender's telefax machine.
To Stamps.com: Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
Attention: President
Facsimile: (310) 450-7337
With a copy to:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bruce R. Hallett, Esq.
Fax: (949) 790-6301
To Distributor: Office Depot, Inc.
818 Mission Street, 4/th/ Floor
San Francisco, CA 94103
Attention: Mr. Keith Butler, Executive Director
Fax: (415) 974-1001
12
<PAGE>
With a copy to:
Office Depot, Inc.
2200 Old Germantown Road
Delray Beach, FL. 33445
Attn: Legal Department: Brian D. Dan, Esq.
Senior Corporate Counsel
Fax: (561) 438-4464
17.9 Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duty authorized representative as of the Effective Date.
STAMPS.COM INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
DISTRIBUTOR:
--------------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
13
<PAGE>
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor obligations under the Agreement are as follows:
1. Distributor shall promote the Software and Stamps.com during Phase III of
Stamps.com's beta-testing program.
2. Distributor shall market and make available for downloading the Software on
Distributor's World Wide Web site (the "Officedepot Site").
3. Distributor shall use good faith efforts to negotiate with Stamps.com the
terms of a [***].
---
4. Distributor shall provide Stamps.com with [***] hypertext link on the [***]
--- ---
and promote Stamps.com as Distributor's [***]. Distributor shall also place
---
the [***].
---
5. Distributor shall provide Stamps.com with the exclusive right to [***].
---
6. Distributor shall have the right to market [***]. Stamps.com will provide
----
Distributor's Customers with the [***] during the Term.
---
7. Distributor shall use commercially reasonable and good faith efforts to
promote the Software [***].
---
8. Distributor shall negotiate with Stamps.com in good faith to develop a
comprehensive program for the distribution of the Software throughout
Distributor's existing retail and e-commerce fulfillment networks.
Stamps.com's obligations under this Agreement are as follows:
1. Stamps.com shall provide Distributor with Revenue Sharing fees, as described
in Section 5.2 of this Agreement, at [***].
---
2. Stamps.com shall include Distributor's [***].
---
3. Stamps.com shall provide and maintain a hypertext link from the Stamps.com
World Wide Web site (the "Stamps.com Site") to the Officedepot Site.
4. Stamps.com shall provide Distributor the right [***].
---
- --------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
A-1
<PAGE>
EXHIBIT B
STANDARD SOFTWARE LICENSE AGREEMENT
-----------------------------------
STAMPS.COM, INC. END-USER SOFTWARE LICENSE AGREEMENT FOR STAMPS.COM INTERNET
POSTAGE SINGLE-USER VERSION
IMPORTANT: READ CAREFULLY
BEFORE OPENING THE SEALED ENVELOPE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL,
THE USE OF WHICH IS SUBJECT TO THIS END-USER SOFTWARE LICENSE AGREEMENT.
OPENING THE SEALED ENVELOPE CONSTITUTES YOUR AND (IF APPLICABLE) YOUR COMPANY'S
ASSENT TO AND ACCEPTANCE OF THIS END-USER SOFTWARE LICENSE AGREEMENT (THE
"LICENSE" OR "AGREEMENT"). IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MUST
NOT USE THIS PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR
---
ENFORCEABILITY OF THIS AGREEMENT, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL
BY OR ON BEHALF OF STAMPS.COM, INC. ("STAMPS.COM") SHALL BE CONSTRUED AS AN
INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
STAMPS.COM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
LICENSE AND WARRANTY:
The Software which accompanies this License (the "Software") is the property of
Stamps.com, and is protected by state, federal, and international copyright law.
Although Stamps.com continues to own the Software, you will have certain rights
to use the Software after your acceptance of this License. Except as may be
modified by a license addendum which accompanies this License, your rights and
obligations with respect to the use of this Software are as follows:
1. YOU MAY:
A. Use only one copy of any version of the Software contained on the enclosed
CD-ROM or floppy disk or downloaded from the Internet or any other online
source on a single computer;
B. Install the Software from its original distribution medium onto another
computer so long as any other copies of the Software are deleted or
otherwise made irreversibly inoperative;
C. Make one copy of the Software for archival purposes; and
D. Distribute unmodified and unregistered copies of the Software on the
original distribution medium for non-commercial use.
2. YOU MAY NOT:
A. Use the Software to purchase or print evidence of United States postage
until and unless you have been issued a Postal Meter License by the United
States Postal Service;
B. Sublicense, rent or lease any portion of the Software;
C. Reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative
works from the Software;
D. Copy or move any version of the Software after it has been installed and/or
registered to another computer;
E. Use the Software to commit or attempt to commit any form of fraud against
or engage in any form of criminal activity involving the United States
Postal Service or related agencies and organizations;
B-1
<PAGE>
F. Authorize or allow other persons or entities to use the Software unless
such persons are members of your immediate family or household;
G. Make known or allow to be made known information relating to Software
serial numbers, accounts, passwords, device identification numbers, or any
other information that could reveal or jeopardize the integrity of your
Stamps.com account; or
H. Install or use the Software on a computer located outside the United States
of America or its territories and possessions.
3. Warranty
Stamps.com warrants that the tangible media on which the Software is distributed
will be free from defects sixty (60) days from the date of delivery of the
Software to you. Your sole remedy in the event of a breach of this warranty will
be that Stamps.com will, at its option, replace any defective media returned to
Stamps.com within the warranty period. Stamps.com does not warrant that the
Software will not meet your requirements or that operation of the Software will
be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR
REPRESENTATION AS TO (1) THE ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE
VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999
THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES,
TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (2) WHETHER ANY OR ALL DATA
FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF
INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
THIS ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
4. Disclaimer of Damages
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL STAMPS.COM BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST
DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF STAMPS.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
IN NO CASE SHALL STAMPS.COM'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE
SOFTWARE. The disclaimers and limitations set forth above will apply regardless
of whether you accept the Software.
5. U.S. Government Restricted Rights:
If your company is an agency of the United States government, as defined in FAR
section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-
7014(a)(5) or otherwise, all software and accompanying documentation provided in
connection with this Agreement are "commercial items," "commercial computer
software," and/or "commercial computer software documentation." Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the United States government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
B-2
<PAGE>
USE, DUPLICATION, OR DISCLOSURE BY THE UNITED STATES GOVERNMENT IS SUBJECT TO
RESTRICTIONS AS SET FORTH IN SUBPARAGRAPH (C) (1) (II) OF THE RIGHTS IN
TECHNICAL DATA AND COMPUTER SOFTWARE CLAUSE AT DFARS 252.227-7013 OR
SUBPARAGRAPHS (C) (1) AND (2) OF THE COMMERCIAL COMPUTER SOFTWARE RESTRICTED
RIGHTS CLAUSE AT 48 CFR 52.227-19, AS APPLICABLE.
6. Export:
You may not export or re-export the Software outside the United States without
Stamps.com's express written consent. In the event such consent is received,
you must comply with the U.S. Foreign Corrupt Practices Act and all export laws,
restrictions, national security controls and regulations of the United States
and other applicable foreign agency or authority. You shall not export or re-
export, or allow the export or re-export of the Software, any component of
Software, or any copy of the Software in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to
any Group D:1 or E:2 country (or any national of such country) specified in the
then current Supplement No. 1 to Part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations (or any
successor regulations or supplement), except in compliance with and with all
licenses and approvals required under applicable export laws and regulations,
including without limitation, those of the U.S. Department of Commerce.
7. General
This Agreement will be governed by the laws of the State of California and any
applicable federal law or Postal Regulations. This Agreement may only be
modified by a license addendum which accompanies this License or by a written
document which has been signed by both you and Stamps.com. Should you have any
questions concerning this Agreement, or if you desire to contact Stamps.com for
any reason, please write:
Stamps.com, Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405.
B-3
<PAGE>
EXHIBIT C
STAMPS.COM'S TRADEMARKS
-----------------------
1. "S" Design
2. "S" Design with "Internet Postage"
3. "StampFX"
4. "stamps.com"
5. "Stamps for Home"
6. "Stamps for Office"
7. "Stamps for Networks"
8. "Stamps2000"
9. "Essurance"
*Free Postage Logo and trademark to be provided by Stamps.com
C-1
<PAGE>
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Stamps.com software
D-1
<PAGE>
EXHIBIT 10.21
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
DISTRIBUTOR AGREEMENT
---------------------
by and between
SEIKO INSTRUMENTS USA, INC.
and
STAMPS.COM INC.
Dated
March 31, 1999
- -------------------------------------------------------------------------------
<PAGE>
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 31st day of
March 1999 (the "Effective Date"), by and between Stamps.com Inc., a Delaware
corporation, with its principal place of business at 2900 31st Street, Suite
150, Santa Monica, California 90405 ("Stamps.com") and Seiko Instruments USA,
Inc., a California corporation, with its principal place of business at 1130
Ringwood Ct., San Jose, CA 95131 (the "Distributor").
RECITALS
WHEREAS, Stamps.com develops and publishes software which enables end-users
to purchase postage electronically through Stamps.com's network system; and
WHEREAS, pursuant to the terms and conditions of this Agreement, Stamps.com
desires to appoint Distributor as an independent contractor to distribute such
software and Distributor desires to provide such distribution services.
NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
-----------
As used in this Agreement, the following terms shall have the meanings set
forth in this Article 1:
"Agreement" has the meaning given to that term in the preamble to this
---------
Agreement.
"Stamps.com" has the meaning given to that term in the preamble to this
----------
Agreement.
"Business Day" means any weekday, Monday through Friday, excluding national
------------
holidays.
"Confidential Information" has the meaning given to that term in Section
------------------------
8.4 of this Agreement.
"Customers" means end-user licensees of Software.
---------
"Distributor" has the meaning given to that term in the preamble of this
-----------
Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
--------
"Documentation" means the user manuals and other documentation provided by
-------------
Stamps.com for use with Software. Unless expressly excluded, the term
"Software" as used herein shall include the applicable Documentation.
"Effective Date" has the meaning given to that term in the preamble of this
--------------
Agreement.
"Exception" has the meaning given to that term in Section 11.
---------
"Excess Warranty" has the meaning given to this term in Section 12.
---------------
"Logo Program" has the meaning given to this term in Section 6.7.
------------
1
<PAGE>
"Materials" has the meaning given to this term in Section 8.1.
---------
"OEM" means original equipment manufacturer.
---
"Service Fee Revenues" has the meaning given to this term in Section 5.2.
--------------------
"Software" means (i) the object code version of Stamps.com's software
--------
programs listed in Exhibit D, and (ii) the object code version of any
updates, modifications or revisions to such computer programs provided to
Distributor pursuant to the terms of this Agreement.
"Software License Agreement" means the agreement provided in Exhibit B.
--------------------------
"Term" has the meaning given to that term in Section 16.1.
----
"Trademarks" means all then-current names, marks and designations used by
----------
Stamps.com.
"Warranty Period" has the meaning given to that term in Section 9.1.
---------------
2. APPOINTMENT OF DISTRIBUTOR.
--------------------------
2.1 Grant to Distributor. Subject to all the terms and conditions of this
--------------------
Agreement and the limitations set forth below, Stamps.com hereby grants and
Distributor hereby accepts, a non-transferable, non-exclusive right to market
and distribute copies of Software solely to Customers in the United States.
Copies of Software are licensed for distribution solely with Distributor's
products and not sold.
2.2 Software License. Subject to all the terms and conditions of this
----------------
Agreement, Stamps.com hereby grants a non-exclusive, nontransferable, royalty-
free, sub-licensable and fully-paid-up license to Distributor, for so long as
this Agreement remains in effect, to use, reproduce and copy all Software and to
provide and make available to Customers, copies of all Software; provided that
-------------
the user of all such copies provided or made available to Customers shall be
subject to the terms of the applicable Software License Agreement between each
such Customer and Stamps.com. The foregoing license is provided by Stamps.com to
Distributor free of charge.
2.3 Title and Ownership. Distributor hereby acknowledges that all right,
-------------------
title and interest in and to Software shall at all times remain that of
Stamps.com, including all rights in the nature of copyright, patent, trade-
secret and other intellectual property and proprietary rights with respect to
Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
-----------------------------------
3.1 Distribution of Software. Distributor shall use its best efforts to
------------------------
distribute Software to Customers pursuant to the provisions set forth in Exhibit
A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use,
---------------------------
market or distribute Software other than as provided herein. Distributor agrees
not to (i) disassemble, decompile or otherwise reverse engineer Software or
otherwise attempt to learn the source code, structure, algorithms or ideas
underlying Software, (ii) take any action contrary to Stamps.com's Software
License Agreement, except as expressly and unambiguously allowed under this
Agreement, (iii) alter or modify Software, (iv)
2
<PAGE>
attempt to disable any security devices or codes incorporated in Software, or
(v) allow or assist others to do any of the foregoing.
3.3 Distributor's Procurement of USPS Approval. Distributor must obtain
------------------------------------------
final US Postal Service ("USPS") certification and approval on or prior to [***]
---
from the Effective Date for all products in which it plans to include Stamps.com
software. Such certification must be evidenced in writing from the USPS to
Distributor or such other appropriate proof of certification acceptable to
Stamps.com.
3.4 Software Package; Software License Agreement. Subject to Exhibit A,
--------------------------------------------
Distributor shall ensure that each copy of Software distributed by or through
Distributor to Customers shall include all components of such Software as
prepackaged by Stamps.com, including, without limitation, (i) diskettes or other
media bearing labels, (ii) Stamps.com's end user manuals and Documentation,
Stamps.com's Software License Agreement, and (iii) at the option of Stamps.com,
advertising and promotional materials supplied by Stamps.com. The parties to
each Software License Agreement shall be Stamps.com and the Customer. The terms
of the Software License Agreement shall be subject to change by Stamps.com, at
its sole discretion, upon reasonable notice to Distributor. Stamps.com shall
have the right to add to or discontinue any or all Software, but only upon
thirty (30) days' prior written notice to Distributor.
3.5 Third Party Infringement. Distributor shall notify Stamps.com
------------------------
promptly of any infringement of any copyrights, Trademarks, or other
intellectual property or proprietary rights relating to any Software. Stamps.com
may, in its sole discretion, take or not take whatever action it believes is
appropriate in connection with any such infringement. If Stamps.com elects to
take any such action, Distributor agrees to fully cooperate in connection
therewith. If Stamps.com initiates and prosecutes any action with respect to
infringement of any copyrights, Trademarks, or other proprietary rights relating
to any Software, Stamps.com shall be entitled to retain all amounts (including
court costs and attorneys' fees) awarded by way of judgment, settlement, or
compromise with respect thereto.
3.6 Compliance. Distributor shall ascertain and comply with all
----------
applicable state, federal and local laws and regulations and standards of
industry or professional conduct, including, without limitation, those
applicable to product claims, labeling, approvals, registrations and
notifications, the Internic, the Internet Assigned Numbers Authority and
Internet community standards, and shall also obtain Stamps.com's prior written
consent before adding any product claim, label, instructions, packaging or the
like to any copy of Software.
3.7 Export Control. Distributor shall not export or re-export any
--------------
Software outside the United States without Stamps.com's express written consent.
In the event such consent is received, Distributor shall comply with the U.S.
Foreign Corrupt Practices Act and all export laws, restrictions, national
security controls and regulations of the United States and other applicable
foreign agency or authority, and shall not export or re-export, or allow the
export or re-export of Software, any component of Software, any other product or
Confidential Information or any copy or direct product of any of the foregoing
in violation of any such restrictions, laws or regulations, or to Cuba, Libya,
North Korea, Iran, Iraq, or Rwanda or to any Group D:I or E:2 country (or any
national of such country) specified in the then current Supplement No. 1 to Part
740, or, in violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
- --------------------
[***]Confidential treatment nas been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
<PAGE>
4. DELIVERY TO DISTRIBUTOR.
-----------------------
4.1 Delivery. Stamps.com shall deliver a master copy of all Software to
--------
Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Stamps.com shall provide sufficient copies of all Documentation
to Distributor to allow Distributor to include such Documentation to Customers
with Software pursuant to Distributor's obligations as set forth in Exhibit A.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
-----------------------------------
5.1 Distributor's Prices to Customers. Distributor shall provide or make
---------------------------------
available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
---------------
Stamps.com shall pay Distributor [***] of all Service Fee Revenues received by
---
Stamps.com attributable to purchases by Customers using Software; provided that
-------------
if any such Customer previously obtained any Software from any person other than
Distributor, the Service Fee Revenues attributable to purchases by such Customer
shall not be included for purposes of determining Distributor's [***] payable by
---
Stamps.com to Distributor shall be paid within forty-five (45) days after [***]
---
in which Stamps.com receives the Service Fee Revenues from which such fees are
derived. As used herein, the term "Service Fee Revenues" shall mean all service
fees received by Stamps.com from purchases of postage by Customers and shall
specifically exclude [***].
---
6. MARKETING AND ADVERTISING.
-------------------------
6.1 Distributor's General Undertaking, Representation, and Warranty.
---------------------------------------------------------------
Distributor represents, warrants, and covenants to Stamps.com that all
advertising and marketing materials relating to Software and/or Stamps.com that
are developed by Distributor shall be accurate in all respects.
6.2 Distribution of Software. Distributor hereby agrees to advertise,
------------------------
market sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Stamps.com or is a part of Stamps.com; provided
--------
that all advertisements and promotional materials, packaging and anything else
- ----
bearing a Trademark shall identify Stamps.com as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
----------------
governed by Section 8.3.
6.3 Marketing Materials. Stamps.com agrees to provide to Distributor, at
-------------------
no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Stamps.com generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
-------------
trademark and other property markings of Stamps.com are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Stamps.com and, except insofar as they are
distributed by Distributor in the course of its performance of its duties under
this Agreement, must be promptly returned to Stamps.com upon the expiration or
termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
-------------
promotional materials to Stamps.com for
- --------------------
[***]Confidential treatment nas been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
<PAGE>
Stamps.com's review, and Stamps.com shaft have the right to approve or reject
any such promotional materials in Stamps.com's sole discretion.
6.4 Web Sites.
---------
(i) Hypertext Links. If Distributor has a World Wide Web site ("Web
---------------
site"), Distributor shall establish a hypertext link to Stamps.com's Web site
within thirty (30) days of the Effective Date. With respect to each hypertext
link linking users of Distributor's Web site to Stamps.com's Web site,
Distributor shall not alter the look, feel, or functionality of Stamps.com's Web
site and shall not act to prevent the look and feel of Stamps.com's Web site
(including, without limitation, page format, navigational bars, colors, fonts,
Stamps.com's trademarks, all hyperlinks appearing on Stamps.com's Web site or,
in general, the overall design of Stamps.com's Web site) from being displayed.
(ii) Responsibilities. Each party shall be solely responsible for the
----------------
development, operation, and maintenance of its Web site and for all materials
that appear on its Web site, including without limitation, (i) the technical
operation of its Web site and all related equipment, (ii) the accuracy and
appropriateness of materials posted on its Web site, and (iii) ensuring that
materials posted on its Web site do not violate any law, rule, or regulation, or
infringe upon the rights of any third party and are not defamatory, obscene or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other's Web site.
6.5 Advertising and Public Relations. Distributor may advertise Software
--------------------------------
in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in any
periodical, Distributor shall provide Stamps.com with notice (pursuant to
Section 17.8 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor shall engage in public relations
activities to encourage the publication, of articles and other publications
regarding Software.
6.6 Announcements. Within thirty (30) days following the Effective date,
-------------
Stamps.com and Distributor shall jointly issue a press release announcing
Distributor's appointment under this Agreement. Thereafter, each party shall
obtain the other party's prior written approval of all press releases that such
party issues with respect to this Agreement and the transactions contemplated by
this Agreement. Distributor also shall obtain Stamps.com's prior written
approval of all other press releases that Distributor issues with respect to
Software.
6.7 Logo Program. During the Term, upon mutual agreement of the Parties,
------------
Distributor shall participate in a promotional logo program ("Logo Program") as
follows: [***]. The logos used in the Logo Program shall be deemed Trademarks
---
for all purposes of this Agreement, including the license granted by Stamps.com
in Section 8.3.
- --------------------
[***]Confidential treatment nas been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
<PAGE>
7. INSTALLATION AND SUPPORT. Stamps.com shall be solely responsible for
------------------------
providing Customers with installation, maintenance and technical integration
support with respect to Software. Distributor shall immediately refer all of
the Distributor's customers who contact the Distributor via telephone regarding
technical support for the Software to stamps.com technical support department
all other technical support requests to the Distributor received via mail,
email, or fax, from the Distributor's Customers shall be forwarded to stamps.com
within no more than twenty-four (24) hours or one (1) Business Day, whichever
period is longer.
8. PROTECTION OF PROPRIETARY RIGHTS.
--------------------------------
8.1 Acknowledgment of Proprietary Materials. Distributor hereby
---------------------------------------
acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Stamps.com (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Stamps.com, the development of which required the expenditure of considerable
time and money by Stamps.com.
8.2 Proprietary Markings. Distributor hereby agrees to ensure that all
--------------------
copyright, trademark and other proprietary notices of Stamps.com affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified.
8.3 Stamps.com Trademarks. Distributor acknowledges that Stamps.com is
---------------------
the owner of all right, title and interest in and to all the Trademarks set
forth in Exhibit C, together with any new or revised names, designs or
designations that Stamps.com may adopt to identify it or any Software during the
Term, and Distributor agrees not to adopt or use any of such Trademarks in any
manner whatsoever except as expressly provided in this Agreement.
Stamps.com hereby grants Distributor a license during the Term to use the
Trademarks, provided that (i) they are used solely in connection with the
-------------
marketing and distribution of Software and in accordance with Stamps.com's
specifications as to style, color and typeface set forth in Exhibit C, (ii) such
use shall be subject to prior written approval of Stamps.com, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of
this Agreement, Distributor will take all action necessary to transfer and
assign to Stamps.com, or its nominee, any right, title or interest in or to any
of the Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Stamps.com immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks anywhere
in the world or for any mark confusingly similar thereto. Stamps.com may elect
to apply for registration of one or more of the Trademarks anywhere in the world
at its expense, and, in such event, Stamps.com shall so notify Distributor and
Distributor shall assist and cooperate with Stamps.com in connection therewith.
Distributor also agrees not to use or contest, during or after the term of this
Agreement, any Trademark, name, mark or designation used by Stamps.com anywhere
in the world (or any name, mark or designation similar thereto). Distributor
acknowledges and agrees that all use of the Trademarks by Distributor shall
inure to the benefit of Stamps.com.
8.4 Confidential Information. Distributor hereby agrees to hold any
------------------------
information, materials and data made available to it by Stamps.com that
reasonably should be understood to be confidential (collectively, "Confidential
Information"), in confidence and agrees not to use, copy, or disclose, or
6
<PAGE>
permit any of its personnel to use, copy, or disclose the same for any purpose
that is not specifically authorized herein. For the purposes of this Section
8.4, the terms and conditions of this Agreement and the Materials are
Confidential Information of Stamps.com.
9. WARRANTY.
--------
9.1 Limited Warranty of Performance. Stamps.com warrants to Distributor
-------------------------------
that all Software will, under normal use, conform to the limited warranty
contained in the Software License Agreement applicable to such Software during
the warranty period set forth in such Agreement (the "Warranty Period"). The
foregoing warranty will apply only to the most current version of Software
issued by Stamps.com from time to time. Stamps.com assumes no responsibility for
claims resulting from the distribution of superseded, outdated, or uncorrected
versions of Software.
9.2 Exclusive Remedy. If a Customer contacts Stamps.com during the
----------------
Warranty Period claiming a breach of the warranty set forth in the then-current
Software License Agreement provided by Distributor to that Customer, Stamps.com
will use reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Software. If a Customer contacts Distributor during
the Warranty Period claiming any such breach of warranty, Distributor shall
promptly refer the matter to Stamps.com. DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY
IN THE EVENT OF ANY SUCH CLAIM, IF VERIFIED, IS EXPRESSLY LIMITED TO
STAMPS.COM'S REASONABLE EFFORTS TO CORRECT OR REPLACE SUCH DEFECTIVE SOFTWARE
AND/OR DOCUMENTATION AT STAMPS.COM'S SOLE EXPENSE.
9.3 Disclaimer. No representation or other affirmation of fact not set
----------
forth herein, including, without limitation, statements regarding capacity,
compliance, suitability for use, or performance of any Software, shall be or be
deemed to be a warranty or representation by Stamps.com for any purpose, or give
rise to any liability or obligation of Stamps.com whatsoever. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE, AND NON-
INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR REPRESENTATION AS TO (Y) THE
ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE VALUES, INCLUDING BUT NOT
LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999 THROUGH AND BEYOND JANUARY
1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES, TO OPERATE IN ACCORDANCE
WITH THE DOCUMENTATION, OR (Z) WHETHER ANY OR ALL DATA FIELDS FOR CALENDAR DATE
VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF INDICATING CENTURY AND
MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
10. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
------------------------------------------
10.1 No Consequential Damages; Limitation of Liabilities. IN NO EVENT
---------------------------------------------------
SHALL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT FOR LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR
DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY. EXCEPT WITH RESPECT TO A BREACH OF SECTION 8.4 AND
DISTRIBUTOR'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 BELOW, THE LIABILITY
OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY STAMPS.COM TO
7
<PAGE>
DISTRIBUTOR WITH RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE GIVING RISE TO SUCH
CLAIM.
10.2 Injunctive Relief. Distributor acknowledges that any breach of its
-----------------
obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Stamps.com will cause Stamps.com irreparable injury
for which there are inadequate remedies at law, and therefore Stamps.com will be
entitled to injunctive relief in addition to all other remedies provided by this
Agreement or available at law.
11. DEFENSE OF INTELLECTUAL PROPERTY CLAIMS.
---------------------------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that Distributor's
distribution and/or use of Software infringes a third party's copyright or
trademark or misappropriates a third party's trade secret, and if given access
by Distributor to any information Distributor has regarding such alleged
infringement, Stamps.com agrees to defend and hold harmless Distributor in such
action at its expense and will pay any costs or damages finally awarded against
Distributor in any such action; provided that Stamps.com shall have had sole
-------------
control of the defense of any such action and all negotiations for its
settlement or compromise. In the event that Stamps.com reasonably believes that
any Software infringes a copyright or trademark or misappropriates a trade
secret, Stamps.com may, at its option and at its expense, either procure for
Distributor the right to continue using any Software, modify the same so it
becomes non-infringing or allow the Distributor to terminate this Agreement
pursuant to Section 16.2(ii). Stamps.com shall not have any liability to
Distributor under any provision of this clause if any infringement, or claim
thereof, is based upon: (i) the use of Software in combination with other
computer hardware or software programs that Stamps.com has not approved for use
with such Software, (ii) Software that has been modified by Distributor, (iii)
Distributor's use of Software beyond the scope of the license granted to it by
Stamps. com hereunder, (iv) Distributor's use after notice of infringement or
misappropriation, or (v) Infringement relating solely to the use of Software but
not the Software itself. Distributor shall indemnify Stamps.com and hold it
harmless against any expense, judgment or loss for infringement of any patent or
other intellectual property right which results from the exceptions set forth in
the immediately preceding sentence of this Section 11 (collectively,
"Exceptions"). No costs or expenses shall be incurred for the account of
Stamps.com without the prior written consent of Stamps.com. THE FOREGOING
STATES THE ENTIRE LIABILITY OF STAMPS.COM WITH RESPECT TO INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY ANY
SOFTWARE, OR ANY PART THEREOF, OR BY ITS OPERATION.
12. DISTRIBUTOR'S INDEMNITY.
-----------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Stamps.com based on a claim arising from (i)
infringement of any patent or other intellectual property right which results
from the Exceptions; (ii) Distributor's grant of a warranty to any Customer
exceeding the limited warranty set forth in Section 9.1 of this Agreement (an
"Excess Warranty"), (iii) Distributor's material breach of this Agreement, or
(iv) Distributor's negligence or willful misconduct, Distributor shall indemnify
Stamps.com and hold Stamps.com harmless from and against any judgment, damage,
liability, or expenses, including reasonable attorney's fees, arising out of any
claim with respect to the breach or alleged breach of such Excess Warranty or
this Agreement or such negligence or willful misconduct; provided that
-------------
Distributor shall have had sole control of the defense of any such action and
all negotiations for its settlement or compromise; and, provided further that no
-----------------
cost or expense shall be incurred for the account of Distributor without
Distributor's prior written consent.
8
<PAGE>
13. REPORTS AND RECORDS.
-------------------
13.1 Reports. Distributor shall keep complete records concerning the
-------
number of copies of Software provided with Distributor's products, or downloaded
by, Customers, as the case may be. Within ten (10) Business Days of the close of
each month during the Term, Distributor shall complete and forward to Stamps.com
a monthly report containing a summary setting forth the number of copies of
Software provided with the Distributor's products, or downloaded by, Customers,
as the case may be. Distributor shall also provide as part of this report the
name and location of all Distributor's Customers who completed the Distributor's
product registration.
13.2 Audit. Distributor agrees to maintain copies of all documentation
-----
relating to the distribution of Software under this Agreement. If requested in
writing by Stamps.com, Distributor shall permit Stamps.com and its independent
certified public accountants to have access to such documentation at
Distributors place of business during ordinary business hours. Distributor
agrees to keep for three (3) years after termination of this Agreement records
of all copies of Software provided to or downloaded by Customers, as the case
may be, in each case sufficient to adequately administer a recall of any
Software and to fully cooperate in any decision by Stamps.com to recall,
retrieve and/or replace any Software. Stamps.com agrees to maintain copies of
all documentation relating to Service Fee Revenues from Customer purchases using
Software distributed by Distributor hereunder. Within fifteen (15) days after
the end of each month, Stamps.com shall provide a report to Distributor setting
forth the revenues received by Stamps.com for such month which are attributable
to purchases from Customers using such Software. If requested in writing by
Distributor, Stamps.com shall permit at Distributor's sole expense,
Distributor's independent certified public accountants, subject to a non-
disclosure agreement with Stamps.com, up to once per calendar year, to have
access solely to such documentation as is reasonably necessary for such
accountants to verify the amount of revenues set forth on such report; provided,
in no event shall such access include access to Stamps.com's servers. For a
period of three (3) years after termination of this Agreement, Stamps.com agrees
to keep records of all Customer purchases made pursuant to Software distributed
by Distributor hereunder.
14. RELATIONSHIP OF PARTIES.
-----------------------
Distributor is an independent contractor and nothing contained in this
Agreement shall be construed to constitute either party as a partner, joint
venturer, co-owner, employee, or agent of the other party, and neither party
shall hold itself out as such. Neither party has any right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf of
the other party, it being intended by both Distributor and Stamps.com that each
shall remain an independent contractor responsible for its own actions.
Distributor agrees to indemnify and hold Stamps.com harmless from and against
any damage or expenses, including reasonable attorney's fees, arising out of
Distributor's breach of the provisions of this Section 14.
15. ASSIGNMENT.
----------
Distributor shall not assign, transfer or otherwise dispose of this
Agreement in whole or in part to any individual, corporation or other entity
without the prior written consent of Stamps.com.
9
<PAGE>
16. TERM OF AGREEMENT; TERMINATION.
------------------------------
16.1 Term. This Agreement shall be effective as of the Effective Date and
----
shall have an initial term of [***]. Upon the expiration of such term (or any
---
renewal term), this Agreement shall automatically renew for [***] unless either
---
party notifies the other party at least [***]prior to the applicable renewal
---
date of its intention to not renew the Agreement (the initial term and any
renewal term shall be collectively referred to as the "Term").
16.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is appointed, or if any substantial part of the other party's assets is
the object of attachment, sequestration or other type of comparable proceeding,
and such proceeding is not vacated or terminated within thirty (30) days after
its commencement or institution.
(ii) Default. Either party may terminate this Agreement if the
-------
other party commits a material breach of any of the material terms or provisions
of this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Stamps.com may immediately terminate this Agreement in the event
Distributor breaches its obligations under Section 2.1, 3.2, 8.3 or 8.4.
(iii) Licenses. Either party may terminate this Agreement
--------
immediately if it or the other party is unable to obtain or renew any permit,
license or other governmental approval necessary to carry on the business
contemplated under this Agreement.
(iv) USPS Certification for Distributor. Stamps.com may terminate
----------------------------------
this Agreement immediately upon written notice to Distributor in the event
Distributor fails to obtain USPS certification in accordance with Section 3.4
hereof.
16.3 Termination for Convenience. Stamps.com may terminate this Agreement
---------------------------
at any time with or without cause upon [***] prior written notice to
Distributor. In the event Stamps.com terminates this Agreement pursuant to this
Section 16.3, [***].
16.4 Rights Upon Termination. Upon termination of this Agreement by
-----------------------
expiration of the Term or otherwise, all further rights and obligations of the
parties shall cease, except that the parties shall not be relieved of (i) their
respective obligations to pay any moneys due or which become due as of or
subsequent to the date of termination, and (ii) any other respective obligations
under Sections 2.3, 3.2, 3.8, 8.1, 8.3 (first and third paragraphs only), 8.4,
9.2, 9.3, 10.1, 10.2, 11, 12, 13.1, 13.2, 14, 15, 16.4, 16.5, and 17.1 - 17.9.
Without limiting the foregoing, upon termination of this Agreement, all licenses
granted to Distributor hereunder shall terminate and each party shall remove any
links from its Web site to the other party's Web site.
16.5 Existing Licenses. All Software License Agreements in effect as of
-----------------
the date of termination or expiration of this Agreement shall survive such
termination or expiration and continue in effect until terminated in accordance
with their terms.
- --------------------
[***]Confidential treatment nas been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
10
<PAGE>
17. MISCELLANEOUS.
-------------
17.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil commotion,
acts of public enemies, blockade, embargo, strikes, outage of the Internet, law,
order, proclamation, regulation, ordinance, demand, or requirement having a
legal effect of any government or any judicial authority or representative of
any such government, or any other act whatsoever, whether similar or dissimilar
to those referred to in this Section 17.1, which is beyond the reasonable
control of the party affected, then the party so affected shall, upon giving
prior written notice to the other party, be excused from such performance to the
extent of such prevention, restriction, or interference, provided that the party
so affected shall use reasonable commercial efforts to avoid or remove such
causes of nonperformance, and shall continue performance hereunder with
reasonable dispatch whenever such causes are removed. The parties agree and
acknowledge that the foregoing shall include Stamps.com's failure to obtain any
necessary governmental approval required in connection with the use of any
Software, including without limitation any postal service approval.
17.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all previous negotiations, agreements
and commitments with respect thereto, and shall not be released, discharged,
changed or modified in any manner except by instruments signed by duly
authorized officers or representatives of each of the parties hereto. No course
of prior dealing between the parties and no usage of the trade shall be relevant
to supplement or explain any term used herein. Acceptance or acquiescence in a
course of performance rendered hereunder shall not be relevant to determine the
meaning of these terms and conditions even though the accepting or acquiescing
party has knowledge of the performance and opportunity for objection.
17.3 Applicable Law. Any claim or controversy relating in any way to this
--------------
Agreement shall be governed and interpreted exclusively in accordance with the
laws of the State of California and the United States without regard to the
United Nations Convention on Contracts for the International Sale of Goods. This
Agreement shall be deemed to have been made in, and shall be construed under,
the internal laws of the State of California, without regard to the principles
of conflicts of laws thereof and the United Nations Convention on Contracts for
the International Sale of Goods. Any mediation under Section 17.4(iii) below
shall be conducted in Los Angeles County, California. In addition, Stamps.com
and Distributor acknowledge and agree that the courts located in such county
shall have exclusive jurisdiction in any action or proceedings with respect to
this Agreement, including the federal district courts located in such county.
17.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
(i) General Intent. Stamps.com and Distributor intend that all
--------------
problem and disputes relating to this Agreement or arising from the transactions
contemplated hereby ("Disputes") shall be resolved through the procedures of
this Section 17.4; provided, however, that neither party shall be under any
-----------------
obligation to proceed in accordance with this Section 17.4 with respect to
Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2, 8.3 or 8.4
of this Agreement, as to which a party may take any legal action in a court of
law or equity (without the necessity of posting any bond) to assert or enforce a
claim that it has against the other party under this Agreement. The procedures
in this Section 17.4 shall not replace or supersede any other remedy to which a
party is entitled under this Agreement or under applicable law.
11
<PAGE>
(ii) Informal Resolution Efforts. Stamps.com and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Stamps.com and the president
or any vice president of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
17.4(ii), the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process, Stamps.com
and Distributor shall attempt in good faith to resolve their differences
voluntarily with the aid of an impartial mediator, who will attempt to
facilitate negotiations. The mediator shall be selected by mutual agreement of
Stamps.com and Distributor. If Stamps.com and Distributor cannot agree on a
mediator, the American Arbitration Association or JAMS/Endispute shall designate
a mediator at the request of either party. Any mediator so designated must be
acceptable to both parties. The mediation shall be confidential, and the
mediator may not testify for either party in any later proceeding relating to
the Dispute. Each party shall bear its own costs in the mediation. The fees and
expenses of the mediator shall be shared equally by the parties.
(iv) Court Actions. If Stamps.com and Distributor cannot resolve a
-------------
Dispute through mediation pursuant to Section 17.4(iii) above, either party may
seek further redress by taking legal action in a court of law or equity to
assert or enforce a claim that it has against the other party under this
Agreement
17.5 Statute of Limitations. Any action by the Distributor for breach of
----------------------
these terms and conditions must be commenced within one (1) year after the cause
of action has accrued.
17.6 Partial Illegality. If any provision of this Agreement or the
------------------
application thereof to any party or circumstances shall be declared void,
illegal or unenforceable, the remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event the parties
shall use their best efforts to replace the invalid or unenforceable provisions
by a provision that, to the extent permitted by the applicable law, achieves the
purposes intended under the invalid or unenforceable provision. Any deviation by
either party from the terms and provisions of this Agreement to the limited
extent necessary to comply with applicable laws, rules or regulations shall not
be considered a breach of this Agreement.
17.7 Waiver of Compliance. Any failure by any party hereto to enforce at
--------------------
any time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every item and
condition of this Agreement.
17.8 Notices. All notices and other communications in connection with
-------
this Agreement shall be in writing and shall be sent to the respective parties
at addresses set forth below in this Section 17.8, or to such other addresses as
may be designated by the parties in writing from time to time in accordance with
this Section 17.8, by registered or certified air mail, postage prepaid, or by
express courier service, service fee prepaid, or by telefax with a hard copy to
follow via air mail or express courier service in accordance with this Section
17.8. All notices shall be deemed received (i) if given by hand, immediately,
(ii) if given by air mail, five (5) business days after posting, (iii) if given
by express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sender's identification line produced
by the recipient's telefax machine or in the sender's transmission confirmation
report as produced electronically by the sender's telefax machine.
12
<PAGE>
To Stamps.com: Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
Attention: President
Facsimile: (310) 450-7337
With a copy to: Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, CA 92618
Attention: Bruce R. Hallet, Esq.
Facsimile: (949) 790-6301
To Distributor: Seiko Instruments USA Inc.
1130 Ringwood Ct.
San Jose, CA 95131-1726
Attention: Lynn W. Keyser
With a copy to:
--------------------------------
--------------------------------
--------------------------------
17.9 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized representative as of the Effective Date.
STAMPS.COM INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
DISTRIBUTOR:
SEIKO INSTRUMENTS USA INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
13
<PAGE>
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor shall:
1. obtain USPS certification in accordance with Section 3.4 of this Agreement
prior to distributing the Software with any of Distributor's products.
2. apply the Stamps.com [***], with which the Software is bundled in accordance
---
with this Agreement. The Logo shall be applied in accordance with logo usage
guidelines to be provided under separate cover by Stamps.com from time to
time during the Term.
3. promote the Software and the Logo [***], in accordance with Section 6 of
---
this Agreement and with logo usage guidelines to be provided under separate
cover by Stamps.com from time to time during the Term.
4. bundle and distribute the Software on [***],
---
5. promote, market, and provide an executable graphical interface for
installation of the Software on the [***].
---
6. provide [***] to end user [***].
--- ---
7. include the Software and [***] in all product offerings to existing customer
---
base,
8. Distributor shall provide Stamps.com the right [***].
---
9. create a hypertext link to Stamps.com's World Wide Web site (the "Stamps.com
Site") located as of the Effective Date at the uniform resource locator
("URL") address www.stamps.com from the [***] (the "SeikoSmart Site") [***].
-------------- --- ---
10. [***].
---
11. demonstrate and/or promote the Software with the Printer, and other related
or similar products, [***].
---
12. include Stamps.com in discussions regarding integration of the Software
into Distributor's Smart Label Printer software program.
- --------------------
[***]Confidential treatment nas been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
14
<PAGE>
EXHIBIT B
STANDARD SOFTWARE LICENSE AGREEMENT
-----------------------------------
STAMPS.COM, INC. END-USER SOFTWARE LICENSE AGREEMENT FOR STAMPS.COM INTERNET
POSTAGE SINGLE-USER VERSION
IMPORTANT: READ CAREFULLY
BEFORE OPENING THE SEALED ENVELOPE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL,
THE USE OF WHICH IS SUBJECT TO THIS END-USER SOFTWARE LICENSE AGREEMENT.
OPENING THE SEALED ENVELOPE CONSTITUTES YOUR AND (IF APPLICABLE) YOUR COMPANY'S
ASSENT TO AND ACCEPTANCE OF THIS END-USER SOFTWARE LICENSE AGREEMENT (THE
"LICENSE" OR "AGREEMENT"). IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MUST
NOT USE THIS PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR
---
ENFORCEABILITY OF THIS AGREEMENT, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL
BY OR ON BEHALF OF STAMPS.COM, INC. ("STAMPS.COM") SHALL BE CONSTRUED AS AN
INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
STAMPS.COM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
LICENSE AND WARRANTY:
The Software which accompanies this License (the "Software") is the property of
Stamps.com, and is protected by state, federal, and international copyright law.
Although Stamps.com continues to own the Software, you will have certain rights
to use the Software after your acceptance of this License. Except as may be
modified by a license addendum which accompanies this License, your rights and
obligations with respect to the use of this Software are as follows:
1. YOU MAY:
A. Use only one copy of any version of the Software contained on the enclosed
CD-ROM or floppy disk or downloaded from the Internet or any other online source
on a single computer;
B. Install the Software from its original distribution medium onto another
computer so long as any other copies of the Software are deleted or otherwise
made irreversibly inoperative;
C. Make one copy of the Software for archival purposes; and
D. Distribute unmodified and unregistered copies of the Software on the
original distribution medium for non-commercial use.
2. YOU MAY NOT:
A. Use the Software to purchase or print evidence of United States postage
until and unless you have been issued a Postal Meter License by the United
States Postal Service;
B. Sublicense, rent or lease any portion of the Software;
C. Reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative works
from the Software;
15
<PAGE>
D. Copy or move any version of the Software after it has been installed and/or
registered to another computer;
E. Use the Software to commit or attempt to commit any form of fraud against or
engage in any form of criminal activity involving the United States Postal
Service or related agencies and organizations;
F. Authorize or allow other persons or entities to use the Software unless such
persons are members of your immediate family or household;
G. Make known or allow to be made known information relating to Software serial
numbers, accounts, passwords, device identification numbers, or any other
information that could reveal or jeopardize the integrity of your Stamps.com
account; or
H. Install or use the Software on a computer located outside the United States
of America or its territories and possessions.
3. Warranty
Stamps.com warrants that the tangible media on which the Software is distributed
will be free from defects sixty (60) days from the date of delivery of the
Software to you. Your sole remedy in the event of a breach of this warranty
will be that Stamps.com will, at its option, replace any defective media
returned to Stamps.com within the warranty period. Stamps.com does not warrant
that the Software will not meet your requirements or that operation of the
Software will be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR
REPRESENTATION AS TO (1) THE ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE
VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999
THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES,
TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (2) WHETHER ANY OR ALL DATA
FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF
INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
THIS ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
4. Disclaimer of Damages
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL STAMPS.COM BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST
DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF STAMPS.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
16
<PAGE>
IN NO CASE SHALL STAMPS.COM `S LIABILITY EXCEED THE PURCHASE PRICE FOR THE
SOFTWARE. The disclaimers and limitations set forth above will apply regardless
of whether you accept the Software.
5. U.S. Government Restricted Rights:
If your company is an agency of the United States government, as defined in FAR
section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-
7014(a)(5) or otherwise, all software and accompanying documentation provided in
connection with this Agreement are "commercial items," "commercial computer
software," and/or "commercial computer software documentation." Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the United States government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
USE, DUPLICATION, OR DISCLOSURE BY THE UNITED STATES GOVERNMENT IS SUBJECT TO
RESTRICTIONS AS SET FORTH IN SUBPARAGRAPH (C) (1) (II) OF THE RIGHTS IN
TECHNICAL DATA AND COMPUTER SOFTWARE CLAUSE AT DFARS 252.227-7013 OR
SUBPARAGRAPHS (C) (1) AND (2) OF THE COMMERCIAL COMPUTER SOFTWARE RESTRICTED
RIGHTS CLAUSE AT 48 CFR 52.227-19, AS APPLICABLE.
6. Export:
You may not export or re-export the Software outside the United States without
Stamps.com's express written consent. In the event such consent is received,
you must comply with the U.S. Foreign Corrupt Practices Act and all export laws,
restrictions, national security controls and regulations of the United States
and other applicable foreign agency or authority. You shall not export or re-
export, or allow the export or re-export of the Software, any component of
Software, or any copy of the Software in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to
any Group D:1 or E:2 country (or any national of such country) specified in the
then current Supplement No. 1 to Part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations (or any
successor regulations or supplement), except in compliance with and with all
licenses and approvals required under applicable export laws and regulations,
including without limitation, those of the U.S. Department of Commerce.
7. General
This Agreement will be governed by the laws of the State of California and any
applicable federal law or Postal Regulations. This Agreement may only be
modified by a license addendum which accompanies this License or by a written
document which has been signed by both you and Stamps.com. Should you have any
questions concerning this Agreement, or if you desire to contact Stamps.com for
any reason, please write:
Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405.
17
<PAGE>
EXHIBIT C
STAMPS.COM'S TRADEMARKS
-----------------------
1. "S" Design
2. "S" Design with "Internet Postage"
3. "StampFX"
4. "stamps.com"
5. "Stamps for Home"
6. "Stamps for Office"
7. "Stamps for Networks"
8. "Stamps2000"
9. "Essurance"
10. "Postage Service"
*Free Postage Logo and trademark to be provided by Stamps.com
18
<PAGE>
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Stamps.com software
19
<PAGE>
EXHIBIT 10.22
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
DISTRIBUTOR AGREEMENT
---------------------
by and between
AVERY DENNISON OFFICE PRODUCTS COMPANY
and
STAMPS.COM INC.
Dated
March 30, 1999
- -------------------------------------------------------------------------------
<PAGE>
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 30th day of
March, 1999 (the "Effective Date"), by and between Stamps.com, Inc., a Delaware
corporation with its principal place of business at 2900 31st Street, Suite 150,
Santa Monica, California 90405, ("Stamps.com") and Avery Dennison Office
Products Company, a Nevada corporation having its principal place of business at
50 Pointe Drive, Brea, California 92821 (the "Distributor").
RECITALS
WHEREAS, Stamps.com develops and publishes software which enables end-users
to purchase postage stamps electronically through Stamps.com's network system;
and
WHEREAS, pursuant to the terms and conditions of this Agreement, Stamps.com
desires to appoint Distributor as an independent contractor to distribute such
software via distributor's World Wide Web site ("Web Site") or bundled with
distributor's software products and Distributor desires to provide such
distribution services.
NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
-----------
As used in this Agreement, the following terms shall have the meanings set
forth in this Article 1:
"Agreement" has the meaning given to that term in the preamble to this
---------
Agreement.
"Stamps.com" has the meaning given to that term in the preamble to this
----------
Agreement.
"Business Day" means any weekday, Monday through Friday, excluding national
------------
holidays.
"Confidential Information" has the meaning given to that term in Section
------------------------
7.4 of this Agreement.
"Customers" means end-user licensees of Software.
---------
"Disclosing Party" has the meaning given to this term in Section 7.4.
----------------
"Distributor" has the meaning given to that term in the preamble of this
-----------
Agreement.
"Disputes" has the meaning given to that term in Section 16.4(i)
--------
"Documentation" means the user manuals and other documentation provided by
-------------
Stamps.com for use with Software. Unless expressly excluded, the term "Software"
as used herein shall include the applicable Documentation.
"Effective Date" has the meaning given to that term in the preamble of this
--------------
Agreement.
"Exceptions" has the meaning given to that term in Section 10.
----------
"Excess Warranty" has the meaning given to this term in Section 11.
---------------
1
<PAGE>
"Logo Program" has the meaning given to this term in Section 5.8.
------------
"Materials" has the meaning given to this term in Section 7.1.
---------
"OEM" means original equipment manufacturer.
---
"Receiving Party" has the meaning given to this term in Section 7.4
---------------
"Service Fee Revenues" has the meaning given to this term in Section 5.2.
--------------------
"Software" means (i) the object code version of Stamps.com's software
--------
programs listed in Exhibit D, and (ii) the object code version of any updates,
modifications or revisions to such computer programs provided to Distributor
pursuant to the terms of this Agreement.
"Software License Agreement" means the agreement provided in Exhibit B.
-------------------------
"Term" has the meaning given to that term in Section 15.1.
----
"Trademarks" means all then-current names, marks and designations used by
----------
Stamps.com.
"Warranty Period" has the meaning given to that term in Section 8.1.
---------------
2. APPOINTMENT OF DISTRIBUTOR.
--------------------------
2.1 Grant to Distributor. Subject to all the terms and conditions of this
--------------------
Agreement and the limitations set forth below, Stamps.com hereby grants and
Distributor hereby accepts, a non-transferable, non-exclusive right to market
and distribute copies of Software solely to Customers in the United States and
Canada. Notwithstanding Stamps.com's grant to Distributor of the right to
market and distribute copies of Software in Canada, Distributor acknowledges and
agrees that Software is not capable of providing Canadian postage and
Distributor shall not represent to any Customer or prospective Customer that
Software may be used for such purpose. Copies of Software are licensed for
distribution and not sold. Distributor shall not appoint, hire or otherwise
engage subdealers to market or distribute Software without the express written
consent of Stamps.com.
2.2 Software License. Subject to all the terms and conditions of this
----------------
Agreement, Stamps.com hereby grants a non-exclusive, non-transferable, royalty-
free, sub-licensable and fully-paid-up license to Distributor, for so long as
this Agreement remains in effect, to use, reproduce and copy all Software and to
provide and make available to Customers, copies of all Software; provided that
the user of all such copies provided or made available to Customers shall be
subject to the terms of the applicable Software License Agreement between each
such Customer and Stamps.com. The foregoing license is provided by Stamps.com to
Distributor free of charge.
2.3 Title and Ownership. Distributor hereby acknowledges that all right,
-------------------
title and interest in and to Software shall at all times remain that of
Stamps.com, including all rights in the nature of copyright, patent, trade
secret and other intellectual property and proprietary rights with respect to
Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
2
<PAGE>
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
-----------------------------------
3.1 Distribution of Software. Distributor shall use its best efforts to
------------------------
distribute Software to Customers pursuant to the provisions set forth in Exhibit
A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use,
---------------------------
market or distribute Software other than as provided herein. Distributor agrees
not to (i) disassemble, decompile or otherwise reverse engineer Software or
otherwise attempt to learn the source code, structure, algorithms or ideas
underlying Software, (ii) take any action contrary to Stamps.com's Software
License Agreement, except as expressly and unambiguously allowed under this
Agreement, (iii) alter or modify Software, (iv) attempt to disable any security
devices or codes incorporated in Software, or (v) allow or assist others to do
any of the foregoing.
3.3 Software Package; Software License Agreement. Subject to Exhibit A,
--------------------------------------------
Distributor shall ensure that each copy of Software distributed by or through
Distributor to Customers shall include all components of such Software as
prepackaged by Stamps.com, including, without limitation, (i) pursuant to 3.3 of
Exhibit A hereto, diskettes or other media bearing labels, (ii) Stamps.com's end
user manuals and Documentation, Stamps.com's Software License Agreement, and
(iii) at the option of Stamps.com, advertising and promotional materials
supplied by Stamps.com. The parties to each Software License Agreement shall be
Stamps.com and the Customer. The terms of the Software License Agreement shall
be subject to change by Stamps.com, at its sole discretion, upon reasonable
notice to Distributor. Stamps.com shall have the right to add to or to
discontinue Software (hereinafter referred to as "Existing Software") after
providing Distributor with written notice of such addition or discontinuance.
Following receipt of such written notice, Distributor shall promptly cease
bundling Existing Software with Distributor's software product(s) and, if
Stamps.com requests Distributor to do so, shall cease distributing Distributor's
inventories of Existing Software as soon as reasonably possible following
Distributor's receipt of Stamps.com's request. Stamps.com shall [***] at the
---
time that Distributor ceases distribution of such bundled software in response
to Stamps.com's request; provided, however, that Distributor shall use
commercially reasonable efforts to salvage and reuse all reusable components of
such bundled software, such as packaging and software media.
3.4 Third Party Infringement. Distributor shall notify Stamps.com
------------------------
promptly of any infringement of which Distributor becomes aware of any
copyrights, Trademarks, or other intellectual property or proprietary rights
relating to any Software. Stamps.com may, in its sole discretion, take or not
take whatever action it believes is appropriate in connection with any such
infringement. If Stamps.com elects to take any such action, Distributor agrees
to provide to Stamps.com all reasonable cooperation, at Stamps.com's expense, in
connection therewith. If Stamps.com initiates and prosecutes any action with
respect to infringement of any copyrights, Trademarks, or other proprietary
rights relating to any Software, Stamps.com shall be entitled to retain all
amounts (including court costs and attorneys' fees) awarded by way of judgment,
settlement, or compromise with respect thereto.
3.5 Export Control. Distributor shall not export or re-export any
--------------
Software outside the United States without Stamps.com's express written consent.
In the event such consent is received Distributor shall comply with the U.S.
Foreign Corrupt Practices Act and all export laws, restrictions, national
security controls and regulations of the United States and other applicable
foreign agency or authority, and shall not export or re-export, or allow the
export or re-export of Software, any component of Software, any other product or
Confidential Information or any copy or direct product of any of the foregoing
in violation of any such restrictions, laws or regulations, or to Cuba, Libya,
North Korea, Iran,
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
<PAGE>
Iraq, or Rwanda or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. I to Part 740, or, in
violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
4. DELIVERY TO DISTRIBUTOR.
-----------------------
4.1 Delivery. Stamps.com shall deliver a master copy of all Software to
--------
Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Stamps.com shall provide sufficient copies of all Documentation
to Distributor to allow Distributor to include such Documentation to Customers
with Software.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
-----------------------------------
5.1 Distributor's Prices to Customers. Distributor shall provide or make
---------------------------------
available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
---------------
Stamps.com shall pay Distributor [***] of all Service Fee Revenues received by
---
Stamps.com attributable to purchases by Customers using Software; provided that,
-------------
if any such Customer previously obtained any Software from any person other than
Distributor, the Service Fee Revenues attributable to purchases by such Customer
shall not be included for purposes of determining Distributor's [***] payable by
---
Stamps.com to Distributor shall be paid within forty-five (45) days after [***]
---
in which Stamps.com receives the Service Fee Revenues from which such fees are
derived. As used herein, the term "Service Fee Revenues" shall mean all service
fees received by Stamps.com from purchases of postage by Customers and shall
specifically exclude [***].
---
5.3 Advertising of Software. Distributor hereby agrees to advertise,
-----------------------
market, sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Stamps.com or is a part of Stamps.com; provided
--------
that all advertisements and promotional materials, packaging and anything else
- ----
bearing a Trademark shall identify Stamps.com as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
----------------
governed by Section 8.3.
5.4 Marketing Materials. Stamps.com agrees to provide to Distributor, at
-------------------
no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Starrips.com. generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
-------------
trademark and other property markings of Stamps.com are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Stamps.com and, except insofar as they are
distributed by Distributor in the course of its performance of its duties under
this Agreement, must be promptly returned to Stamps.com upon the expiration or
termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
-------------
promotional materials to Stamps.com for
- ------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
<PAGE>
Stamps.com's review, and Stamps.com shall have the right to approve or reject
any such promotional materials in Stamps.com's sole discretion.
5.5 Web Sites. Each party shall be solely responsible for the development
---------
operation, and maintenance of its Web site and for all materials that appear on
its Web site, including without limitation, (i) the technical operation of its
Web site and all related equipment, (ii) the accuracy and appropriateness of
materials posted on its Web site, and (iii) ensuring that materials posted on
its Web site do not violate any law, rule, or regulation, or infringe upon the
rights of any third party and are not defamatory, obscene or otherwise illegal.
Each party disclaims all liability for all such matters with respect to the
other's Web site.
5.6 Advertising and Public Relations. Distributor may advertise Software
--------------------------------
in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in
any periodical, Distributor shall provide Stamps.com with notice (pursuant to
Section 16.7 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor may engage in public relations
activities to encourage the publication, of articles and other publications
regarding Software.
5.7 Announcements. Each party shall obtain the other party's prior
-------------
written approval of all press releases that such party issues with respect to
this Agreement and the transactions contemplated by this Agreement.
5.8 Logo Program. During the Term, upon mutual agreement of the parties,
------------
Distributor shall participate in a promotional logo program ("Logo Program") as
follows: [***]. The logos used in the Logo Program shall be deemed Trademarks
---
for all purposes of this Agreement, including the license granted by Stamps.com
in Section 7. [***].
---
6. INSTALLATION AND SUPPORT.
------------------------
Stamps.com shall be solely responsible for providing Customers with
installation, maintenance and technical integration support with respect to
Stamps.com Software. Distributor shall use all reasonable efforts to notify
Stamps.com as soon as reasonably possible of Distributor's receipt of any
Customer request for support or assistance with respect to Software.
7. PROTECTION OF PROPRIETARY RIGHTS.
--------------------------------
7.1 Acknowledgment of Proprietary Materials. Distributor hereby
---------------------------------------
acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Stamps.com (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Stamps.com, the development of which required the expenditure of considerable
time and money by Stamps.com.
7.2 Proprietary Markings. Distributor hereby agrees to ensure that all
--------------------
copyright, trademark and other proprietary notices of Stamps.com affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified by Distributor.
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
<PAGE>
7.3 Stamps.com Trademarks. Distributor acknowledges that Stamps.com is
---------------------
the owner of all right, title and interest in and to all the Trademarks set
forth in Exhibit C, together with any new or revised names, designs or
designations that Stamps.com may adopt to identify it or any Software during the
Term, and Distributor agrees not to adopt or use any of such Trademarks in any
manner whatsoever except as expressly provided in this Agreement.
Stamps.com hereby grants Distributor a license during the Term to use the
Trademarks, provided that (i) they are used solely in connection with the
-------------
marketing and distribution of Software and in accordance with Stamps.com's
specifications as to style, color and typeface set forth in Exhibit C (ii) such
use shall be subject to prior written approval of Stamps.com, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of
this Agreement, Distributor will take all action necessary to transfer and
assign to Stamps.com, or its nominee, any right, title or interest in or to any
of the Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Stamps.com, immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks anywhere
in the world or for any mark confusingly similar thereto. Distributor also
agrees not to use or contest, during or after the term of this Agreement, any
Trademark, name, mark or designation used by Stamps.com anywhere in the world
(or any name, mark or designation confusingly similar thereto). Distributor
acknowledges and agrees that all use of the Trademarks by Distributor shall
inure to the benefit of Stamps.com.
7.4 Confidential Information. Each party (the "Receiving Party") hereby
------------------------
agrees to hold any information, materials and data made available to the
Receiving Party by the other party hereto (the "Disclosing Party") that the
Receiving Party should reasonably understand to be confidential (collectively,
"Confidential Information") in confidence and not to use, copy, or disclose, or
permit any of its personnel to use, copy, or disclose the Disclosing Party's
Confidential Information for any purpose that is not specifically authorized
herein. For the purposes of this Section 7.4, the terms and conditions of this
Agreement and the Materials shall be deemed Confidential Information.
8. WARRANTY.
--------
8.1 Limited Warranty of Performance. Stamps.com. warrants to Distributor
-------------------------------
that all Software will, under normal use, conform to the limited warranty
contained in the Software License Agreement applicable to such Software during
the warranty period set forth in such Agreement (the "Warranty Period"). The
foregoing warranty will apply only to the most current version of Software
issued by Stamps.com from time to time. Stamps.com assumes no responsibility for
claims resulting from the distribution of superseded, outdated, or uncorrected
versions of Software.
8.2 Exclusive Remedy. If a Customer contacts Stamps.com during the
----------------
Warranty Period claiming a breach of the warranty set forth in the then-current
Software License Agreement provided by Distributor to that Customer, Stamps.com
will use reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Software. If a Customer contacts Distributor
during the Warranty Period claiming any such breach of warranty, Distributor
shall promptly refer the matter to Stamps.com. DISTRIBUTOR'S SOLE AND EXCLUSIVE
REMEDY IN THE EVENT OF ANY SUCH CLAIM, IF VERIFIED, IS EXPRESSLY LIMITED TO
STAMPS.COM'S REASONABLE EFFORTS TO CORRECT OR REPLACE SUCH DEFECTIVE SOFTWARE
AND/OR DOCUMENTATION AT STAMPS.COM'S SOLE EXPENSE.
6
<PAGE>
8.3 Disclaimer. No representation or other affirmation of fact not set
----------
forth herein, including, without limitation, statements regarding capacity,
compliance, suitability for use, or performance of any Software, shall be or be
deemed to be a warranty or representation by Stamps.com for any purpose, or give
rise to any liability or obligation of Stamps.com whatsoever. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE, AND NON-
INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR REPRESENTATION AS TO (Y) THE
ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE VALUES, INCLUDING BUT NOT
LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999 THROUGH AND BEYOND JANUARY
1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES, TO OPERATE IN ACCORDANCE
WITH THE DOCUMENTATION, OR (Z) WHETHER ANY OR ALL DATA FIELDS FOR CALENDAR DATE
VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF INDICATING CENTURY AND
MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
9. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
------------------------------------------
9.1 No Consequential Damages; Limitation of Liability. IN NO EVENT SHALL
-------------------------------------------------
EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR
LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR
INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
EXCEPT WITH RESPECT TO A BREACH OF SECTION 7.4 AND DISTRIBUTOR'S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 11 BELOW, THE LIABILITY OF EITHER PARTY FOR ANY CLAIM
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT
PAID BY STAMPS.COM TO DISTRIBUTOR WITH RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE
GIVING RISE TO SUCH CLAIM.
9.2 Injunctive Relief. Each party acknowledges that any breach of its
-----------------
obligations under this Agreement with respect to the proprietary rights or
Confidential Information of the other party will cause the other party
irreparable injury for which there are inadequate remedies at law and, therefor,
that such other party shall be entitled to injunctive relief, without the
posting of any bond, in addition to all other remedies provided by this
Agreement or available at law or in equity.
10. STAMPS.COM'S INDEMNITY.
----------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that, or arising
from, (i) Distributor's distribution and/or use of Software infringes a third
party's copyright or trademark or misappropriates a third party's trade secret
(if given access by Distributor to any information Distributor has regarding
such alleged infringement), (ii) Stamps.com's material breach of this Agreement
gross negligence or willful misconduct, or (iii) Stamps.com's failure to comply
with applicable state, federal, and local laws and regulations, industry
standards or rules of professional conduct, including, without limitation, those
applicable to product claims, labeling, approvals, registrations and
notifications, the Internic, the Internet Assigned Numbers Authority and
Internet community standards, Stamps.com. agrees to defend and hold harmless
Distributor in such action at its expense and will pay any costs or damages
finally awarded against Distributor in any such action; provided that,
Stamps.com shall have had sole control of the defense of any such action and all
negotiations for its settlement or compromise. In the event that Stamps.com
reasonably believes that any Software infringes a copyright or trademark or
misappropriates a trade secret, Stamps.com may, at its
7
<PAGE>
option and at its expense, either procure for Distributor the right to continue
using any Software, modify the same so it becomes non-infringing or allow the
Distributor to terminate this Agreement pursuant to Section 16.2(ii). Stamps.com
shall not have any liability to Distributor under any provision of this clause
if any infringement, or claim thereof, is based upon: (i) the use of Software in
combination with other computer hardware or software programs that Stamps.com
has not approved for use with such Software, (ii) Software that has been
modified by Distributor, (iii) Distributor's use of Software beyond the scope of
the license granted to it by Stamps.com hereunder and otherwise for any purpose
for which Software was not intended to be used; or (iv) Distributor's failure to
use commercially reasonable efforts to cease reproducing, bundling and/or
distributing Software following Distributor's receipt from Stamps.com of notice
of infringement or misappropriation. Distributor shall indemnify Stamps.com and
hold it harmless against any expense, judgment or loss for infringement of any
patent or other intellectual property right which results from the exceptions
set forth in the immediately preceding sentence of this Section 11
(collectively, "Exceptions"). No costs or expenses shall be incurred for the
account of Stamps.com without the prior written consent of Stamps.com. THE
FOREGOING STATES THE ENTIRE LIABILITY OF STAMPS.COM WITH RESPECT TO INFRINGEMENT
OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY ANY
SOFTWARE, OR ANY PART THEREOF, OR BY ITS OPERATION.
11. DISTRIBUTOR'S INDEMNITY.
-----------------------
Provided that Distributor is notified promptly and in writing of such claim
(and all prior related claims), Distributor shall indemnify Stamps.com and hold
Stamps.com harmless from and against any judgment, damage, liability, or
expenses, including reasonable attorney's fees, arising out of any claim against
Stamps.com arising from (i) infringement of any patent or other intellectual
property right which results from the Exceptions; (ii) Distributor's grant of a
warranty to any Customer exceeding the limited warranty set forth in Section 9.1
of this Agreement (an "Excess Warranty"), (iii) Distributor's material breach of
this Agreement, (iv) Distributor's gross negligence or willful misconduct, (v)
Distributor's failure to comply with applicable state, federal, and local laws
and regulations, industry standards or rules of professional conduct, including,
without limitation, those applicable to product claims, labeling, approvals,
registrations and notifications, the Internic, the Internet Assigned Numbers
Authority and Internet community standards; or (vi) Distributor's addition to
any copy of Software of any product claim, label, instructions, packaging, or
the like, without Stamps.com's prior written consent. Notwithstanding any
provision to the contrary contained in this Agreement, Distributor shall have
sole control of the defense of any such action and all negotiations for its
settlement or compromise; and no cost or expense shall be incurred for the
account of Distributor without Distributor's prior written consent.
12. REPORTS AND RECORDS.
-------------------
12.1 Distributor's Reports. Distributor shall keep complete records
---------------------
concerning all copies of Software shipped to or downloaded by, Customers, as the
case may be. Within fifteen (15) Business Days of the close of each quarter
during the Term, Distributor shall complete and forward to Stamps.com a report
containing a summary setting forth the number of copies of Software provided to,
or downloaded by, Customers, as the case may be.
12.2 Stamps.com's Reports. Stamps.com is responsible for [***].
-------------------- ---
Stamps.com agrees to maintain [***].
---
13. RELATIONSHIP OF PARTIES.
-----------------------
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
8
<PAGE>
Distributor is an independent contractor and nothing contained in this
Agreement shall be construed to constitute either party as a partner, joint
venturer, co-owner, employee, or agent of the other party, and neither party
shall hold itself out as such. Neither party has any right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf of
the other party, it being intended by both Distributor and Stamps.com that each
shall remain an independent contractor responsible for its own actions.
14. ASSIGNMENT.
----------
Neither party shall assign, transfer or otherwise dispose of this Agreement
in whole or in part to any individual, corporation or other entity without the
prior written consent of the other party, which shall not be unreasonably
withheld or delayed. By way of example, but not of limitation, a party may
reasonably withhold its written consent to any assignment, transfer or other
disposition of this Agreement to any individual, corporation or other entity
that is a competitor of, or would lead to a conflict of interest with, the party
withholding consent.
15. TERM OF AGREEMENT; TERMINATION.
------------------------------
15.1 Term. This Agreement shall be effective as of the Effective Date and
----
shall have an initial term that commences on the Effective Date and expires on
[***]. This Agreement shall automatically renew for subsequent [***], unless
- ---- ---
either party gives the other party notice of its intention not to renew this
Agreement at least [***] days prior to the expiration of the then-current term.
---
15.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is appointed, or if any substantial part of the other party's assets is
the object of attachment sequestration or other type of comparable proceeding,
and such proceeding is not vacated or terminated within thirty (30) days after
its commencement or institution.
(ii) Default. Either party may terminate this Agreement if the other
-------
party commits a material breach of any of the material terms or provisions of
this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Stamps.com may immediately terminate this Agreement in the event that
Stamps.com reasonably determines that Distributor has breached its obligations
under Section 2.1, 3.2. 8.3 or 8.4.
15.3 Termination Due to the United States Postal Service. Stamps.com may
---------------------------------------------------
terminate this Agreement upon written notice to Distributor if the United States
Postal Service ("USPS") (i) does not approve the Software, or (ii) determines
that the Software may not be used to print postage onto labels because such use
of labels fails to meet the USPS's specifications.
15.4 Rights Upon Termination. Upon termination of this Agreement by
-----------------------
expiration of the Term or otherwise, all further rights and obligations of the
parties shall cease, except that the parties shall not be relieved of (i) their
respective obligations to pay any moneys due or which become due as of or
- ----------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
9
<PAGE>
subsequent to the date of termination, and (ii) any other respective obligations
under Sections 2.3, 3.2, 3.3, 3.7, 8.1, 8.3 (first and third paragraphs only),
8.4, 9.2, 9.3, 10.1, 10.2, 11, 12, 13.1, 13.2, 14, 15, 16.4, 16.5, and 17.1 -
17.9. Without limiting the foregoing, upon termination of this Agreement, all
licenses granted to Distributor hereunder shall terminate and each party shall
remove any links from its Web site to the other party's Web site.
15.5 Licenses. Existing Licenses. Either party may terminate this
---------------------------
Agreement immediately if it or the other party is unable to obtain or renew any
permit, license or other governmental approval necessary to carry on the
business contemplated under this Agreement. All Software License Agreements in
effect as of the date of termination or expiration of this Agreement shall
survive such termination or expiration and continue in effect until terminated
in accordance with their terms.
16. MISCELLANEOUS.
-------------
16.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil commotion,
acts of public enemies, blockade, embargo, strikes, outage of the Internet, law,
order, proclamation, regulation, ordinance, demand, or requirement having a
legal effect of any government or any judicial authority or representative of
any such government, or any other act whatsoever, whether similar or dissimilar
to those referred to in this Section 16.1, which is beyond the reasonable
control of the party affected, then the party so affected shall, upon giving
prior written notice to the other party, be excused from such performance to the
extent of such prevention, restriction, or interference, provided that the party
so affected shall use reasonable commercial efforts to avoid or remove such
causes of nonperformance, and shall continue performance hereunder with
reasonable dispatch whenever such causes are removed. The parties agree and
acknowledge that the foregoing shall include Stamps.com's failure to obtain any
necessary governmental approval required in connection with the use of any
Software, including without limitation any postal service approval.
16.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all previous negotiations, agreements
and commitments with respect thereto, and shall not be released, discharged,
changed or modified in any manner except by instruments signed by duly
authorized officers or representatives of each of the parties hereto. No course
of prior dealing between the parties and no usage of the trade shall be relevant
to supplement or explain any term used herein. Acceptance or acquiescence in a
course of performance rendered hereunder shall not be relevant to determine the
meaning of these terms and conditions even though the accepting or acquiescing
party has knowledge of the performance and opportunity for objection.
16.3 Applicable Law. Any claim or controversy relating in any way to this
--------------
Agreement shall be governed and interpreted exclusively in accordance with the
laws of the State of California and the United States without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
This Agreement shall be deemed to have been made in, and shall be construed
under, the internal laws of the State of California, without regard to the
principles of conflicts of laws thereof and the United Nations Convention on
Contracts for the International Sale of Goods. Any mediation under Section
17.4(iii) below shall be conducted in Los Angeles County, California. In
addition, Stamps.com and Distributor acknowledge and agree that the courts
located in such county shall have exclusive jurisdiction in any action or
proceedings with respect to this Agreement, including the federal district
courts located in such county.
16.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
10
<PAGE>
(i) General Intent. Stamps.com and Distributor intend that all
--------------
problems and disputes relating to this Agreement or arising from the
transactions contemplated hereby ("Disputes") shall be resolved through the
procedures of this Section; provided, however that neither party shall be under
-----------------
any obligation to proceed in accordance with this Section with respect to
Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2, 8.3 or 8.4
of this Agreement, as to which a party may take any legal action in a court of
law or equity (without the necessity of posting any bond) to assert or enforce a
claim that it has against the other party under this Agreement. The procedures
in this Section shall not replace or supersede any other remedy to which a party
is entitled under this Agreement or under applicable law.
(ii) Informal Resolution Efforts. Stamps.com and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Stamps.com and the president
or any vice president or authorized representative of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
(ii) above, the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process,
Stamps.com and Distributor shall attempt in good faith to resolve their
differences voluntarily with the aid of an impartial mediator, who will attempt
to facilitate negotiations. The mediator shall be selected by mutual agreement
of Stamps.com and Distributor. If Stamps.com and Distributor cannot agree on a
mediator, the American Arbitration Association or JAMS/Endispute shall designate
a mediator at the request of either party. Any mediator so designated must be
acceptable to both parties. The mediation shall be confidential, and the
mediator may not testify for either party in any later proceeding relating to
the Dispute. Each party shall bear its own costs in the mediation. The fees
and expenses of the mediator shall be shared equally by the parties.
(iv) Court Actions. If Stamps.com and Distributor cannot resolve a
-------------
Dispute through mediation pursuant to Section above, either party may seek
further redress by taking legal action in a court of law or equity to assert or
enforce a claim that it has against the other party under this Agreement.
16.5 Partial Illegality. If any provision of this Agreement or the
------------------
application thereof to any party or circumstances shall be declared void,
illegal or unenforceable, the remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event, the
parties shall use their best efforts to replace the invalid or unenforceable
provisions by a provision that, to the extent permitted by the applicable law,
achieves the purposes intended under the invalid or unenforceable provision.
Any deviation by either party from the terms and provisions of this Agreement to
the limited extent necessary to comply with applicable laws, rules or
regulations shall not be considered a breach of this Agreement.
16.6 Waiver of Compliance. Any failure by any party hereto to enforce at
--------------------
any time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every item and
condition of this Agreement.
16.7 Notices. All notices and other communications in connection with
-------
this Agreement shall be in writing and shall be sent to the respective parties
at addresses set forth below in this Section or to such other addresses as may
be designated by the parties in writing from time to time in accordance with
this Section by registered or certified air mail, postage prepaid, or by express
courier service, service fee prepaid, or by telefax with a hard copy to follow
via air mail or express courier service in accordance with this Section. All
notices shall be deemed received (i) if given by hand, immediately, (ii) if
given by air mail, five (5) business days after posting, (iii) if given by
express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sendees identification line produced
by the recipient's telefax machine
11
<PAGE>
or in the sender's transmission confirmation report as produced electronically
by the sender's telefax machine.
To Stamps.com: Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
Attention: President
Facsimile: (310) 450-7337
With a copy to:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bruce R. Hallett, Esq.
Facsimile: (949) 790-6301
To Distributor: Avery Dennison
50 Pointe Drive
Brea, CA 92821
Attention: Jill Karrenbrock
With a copy to: Mary Freeman, Esq.
50 Pointe Drive
Brea, CA 92821
16.8 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
12
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duty authorized representative as of the Effective Date.
STAMPS.COM, INC.
By:
-----------------------------------------
Name: John M. Payne
Title: President/CEO
DISTRIBUTOR:
AVERY DENNISON OFFICE PRODUCTS COMPANY
By:
-----------------------------------------
Name: David W. Freeman
Title: VP/GM Automation Products
13
<PAGE>
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor's obligations in connection with its distribution rights under the
Agreement are as follows:
1. Distributor shall promote and make the Stamps.com Software available as the
[***] (the Avery.com/software uniform resource locator ("URL") address) in
---
which prospective Customers may download various software products
2. Distributor shall provide Stamps.com with [***], approved by the USPS
---
through which prospective end users may download postage.
3. From the Effective Date through [***] through the following methods:
---
3.1. via downloading by prospective Customers from the Software Section of
the Avery Office Products Web Site;
3.2. automated download capabilities through the installation process of
all (downloaded) Label Pro and Avery Wizard software products;
provided that Stamps.com, provides the necessary resources to
Distributor to enable such capabilities; and
3.3. inclusion in a bundle with all Distributor Label Pro software
products sold by Distributor in the retail and commercial
distribution channels.
4. Distributor shall promote Stamps.com's [***] pursuant to Section 3.3 above,
---
in accordance with the logo usage guidelines to be provided under separate
cover by Stamps.com from time to time during the Term.
5. As soon as reasonably possible after the Effective Date, Distributor shall
provide and maintain a hypertext link to Stamps.com's World Wide Web site
(the "Stamps.com Site") located as of the Effective Date at the universal
resource locator ("URL") address www.Stamps.com from the [***].
---
6. At Stamps.com cost and expense, Distributor will provide Stamps.com the
right to [***].
---
7. During the term hereof Distributor shall [***].
---
8. If Stamps.com purchases label "starter kits" from Distributor for direct
sale or promotion to consumers, Distributor will negotiate the pricing on
such starter kits in good faith with Stamps.com and [***]. However, if
---
Stamps.com does not purchase the "starter kits" then Distributor will pay a
[***]. Upon completion of the parties' negotiations with respect to such
---
[***], the parties shall amend this Exhibit A to set forth herein such
----
[***].
---
Stamps.com's obligations with respect to this Agreement are as follows:
- -----------------------------------------------------------------------
1. Within thirty (30) days of the date on which Stamps.com receives approval
of the Software from the USPS, Stamps.com shall provide to Distributor a
master diskette from which Distributor may copy the Software for
distribution.
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
2. In order to assist Distributor with the fulfillment of its obligations
under Section 3.2 of this Exhibit A, Stamps.com will provide [***] that
---
Distributor maintains at the Distributor Site.
3. Stamps.com agrees to explore in good faith the inclusion of Distributor in
[***].
---
4. Distributor's branded Laser and Inkjet labels shall be the [***].
---
Stamps.com grants Distributor [***]. At any time during the Term, if
---
Distributor does not [***] that meets such needs. Distributor acknowledges
---
and agrees that Stamps.com can provide no guarantees as to whether
Customers will use Distributor's products described above.
5. As soon as reasonably possible after the Effective Date, Stamps.com shall
provide and maintain a hypertext link to Avery Software Web Site located as
of the Effective Date at the universal resource locator ("URL") address
www.Avery.com. from [***].
---
6. Stamps.com shall use commercially reasonable efforts to make accessible to
end users through the "help" files included in the Software from time to
time and on Stamps.com's Software support site on the World Wide Web
Distributor's recommended practices and procedures with respect to the
printing of labels on inkjet and laserjet printers.
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
EXHIBIT B
STANDARD SOFTWARE LICENSE AGREEMENT
-----------------------------------
STAMPS.COM, INC. END-USER SOFTWARE LICENSE AGREEMENT FOR STAMPS.COM INTERNET
POSTAGE SINGLE-USER VERSION
IMPORTANT: READ CAREFULLY
BEFORE OPENING THE SEALED ENVELOPE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL,
THE USE OF WHICH IS SUBJECT TO THIS END-USER SOFTWARE LICENSE AGREEMENT. OPENING
THE SEALED ENVELOPE CONSTITUTES YOUR AND (IF APPLICABLE) YOUR COMPANY'S ASSENT
TO AND ACCEPTANCE OF THIS END-USER SOFTWARE LICENSE AGREEMENT (THE "LICENSE" OR
"AGREEMENT"). IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MUST NOT USE THIS
PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL
BY OR ON BEHALF OF STAMPS.COM, INC. ("STAMPS.COM") SHALL BE CONSTRUED AS AN
INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
STAMPS.COM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
LICENSE AND WARRANTY:
The Software which accompanies this License (the "Software") is the property of
Stamps.com, and is protected by state, federal, and international copyright law.
Although Stamps.com continues to own the Software, you will have certain rights
to use the Software after your acceptance of this License. Except as may be
modified by a license addendum which accompanies this License, your rights and
obligations with respect to the use of this Software are as follows:
1. YOU MAY:
A. Use only one copy of any version of the Software contained on the enclosed
CD-ROM or floppy disk or downloaded from the Internet or any other online source
on a single computer;
B. Install the Software from its original distribution medium onto another
computer so long as any other copies of the Software are deleted or otherwise
made irreversibly inoperative;
C. Make one copy of the Software for archival purposes; and
D. Distribute unmodified and unregistered copies of the Software on the
original distribution medium for non-commercial use.
2. YOU MAY NOT:
A. Use the Software to purchase or print evidence of United States postage
until and unless you have been issued a Postal Meter License by the United
States Postal Service;
B. Sublicense, rent or lease any portion of the Software;
C. Reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative works
from the Software;
<PAGE>
D. Copy or move any version of the Software after it has been installed and/or
registered to another computer;
E. Use the Software to commit or attempt to commit any form of fraud against or
engage in any form of criminal activity involving the United States Postal
Service or related agencies and organizations;
F. Authorize or allow other persons or entities to use the Software unless such
persons are members of your immediate family or household;
G. Make known or allow to be made known information relating to Software serial
numbers, accounts, passwords, device identification numbers, or any other
information that could reveal or jeopardize the integrity of your Stamps.com
account; or
H. Install or use the Software on a computer located outside the United States
of America or its territories and possessions.
3. Warranty
Stamps.com warrants that the tangible media on which the Software is distributed
will be free from defects sixty (60) days from the date of delivery of the
Software to you. Your sole remedy in the event of a breach of this warranty
will be that Stamps.com will, at its option, replace any defective media
returned to Stamps.com within the warranty period. Stamps.com does not warrant
that the Software will not meet your requirements or that operation of the
Software will be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR
REPRESENTATION AS TO (1) THE ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE
VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999
THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES,
TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (2) WHETHER ANY OR ALL DATA
FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF
INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
THIS ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
4. Disclaimer of Damages
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL STAMPS.COM BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST
DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF STAMPS.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
<PAGE>
IN NO CASE SHALL STAMPS.COM'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE
SOFTWARE. The disclaimers and limitations set forth above will apply regardless
of whether you accept the Software.
5. U.S. Government Restricted Rights:
If your company is an agency of the United States government, as defined in FAR
section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-
7014(a)(5) or otherwise, all software and accompanying documentation provided in
connection with this Agreement are "commercial items," "commercial computer
software," and/or "commercial computer software documentation." Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the United States government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
USE, DUPLICATION, OR DISCLOSURE BY THE UNITED STATES GOVERNMENT IS SUBJECT TO
RESTRICTIONS AS SET FORTH IN SUBPARAGRAPH (C)(1)(II) OF THE RIGHTS IN TECHNICAL
DATA AND COMPUTER SOFTWARE CLAUSE AT DFARS 252.227-7013 OR SUBPARAGRAPHS (C)(1)
AND (2) OF THE COMMERCIAL COMPUTER SOFTWARE RESTRICTED RIGHTS CLAUSE AT 48 CFR
52.227-19, AS APPLICABLE.
6. Export:
You may not export or re-export the Software outside the United States without
Stamps.com's express written consent. In the event such consent is received,
you must comply with the U.S. Foreign Corrupt Practices Act and all export laws,
restrictions, national security controls and regulations of the United States
and other applicable foreign agency or authority. You shall not export or re-
export, or allow the export or re-export of the Software, any component of
Software, or any copy of the Software in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to
any Group D:1 or E:2 country (or any national of such country) specified in the
then current Supplement No. 1 to part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations (or any
successor regulations or supplement), except in compliance with and with all
licenses and approvals required under applicable export laws and regulations,
including without limitation, those of the U.S. Department of Commerce.
7. General.
This Agreement will be governed by the laws of the State of California and any
applicable federal law or Postal Regulations. This Agreement may only be
modified by a license addendum which accompanies this License or by a written
document which has been signed by both you and Stamps.com. Should you have any
questions concerning this Agreement, or if you desire to contact Stamps.com for
any reason, please write:
Stamps.com, Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
<PAGE>
EXHIBIT C
STAMPS.COM'S TRADEMARKS
-----------------------
1. "S" Design
2. "S" Design with "Internet Postage"
3. "StampFX"
4. "stamps.com"
5. "Stamps for Home"
6. "Stamps for Office"
7. "Stamps for Networks"
8. "Stamps2000"
9. "Essurance"
* "Free Postage" logo and trademark to be provided by Stamps.com
<PAGE>
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Stamps.com software
<PAGE>
EXHIBIT 10.23
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- --------------------------------------------------------------------------------
DISTRIBUTOR AGREEMENT
---------------------
by and between
DYMO-COSTAR CORPORATION
and
STAMPS.COM INC.
Dated
March 11, 1999
- -------------------------------------------------------------------------------
<PAGE>
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 11th day of
March, 1999 (the "Effective Date"), by and between Stamps.com Inc., a Delaware
corporation, with its principal place of business at 2900 31st Street, Suite
150, Santa Monica, California 90405 ("Stamps.com") and Dymo-CoStar Corporation,
a Delaware corporation, with its principal place of business at 599 West Putnam
Ave., Greenwich, CT 06830-6092 (the "Distributor").
RECITALS
WHEREAS, Stamps.com develops and publishes software which enables end-users
to purchase postage electronically through Stamps.com's network system; and
WHEREAS, pursuant to the terms and conditions of this Agreement Stamps.com
desires to appoint Distributor as an independent contractor to distribute such
software and Distributor desires to provide such distribution services.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
-----------
As used in this Agreement, the following terms shall have the meanings set
forth in this Article 1:
"Agreement" has the meaning given to that term in the preamble to this
---------
Agreement.
"Stamps.com" has the meaning given to that term in the preamble to this
----------
Agreement.
"Business Day" means any weekday, Monday through Friday, excluding national
------------
holidays.
"Confidential Information" has the meaning given to that term in Section
------------------------
8.4 of this Agreement.
"Customers" means end-user licensees of Software.
---------
"Distributor" has the meaning given to that term in the preamble of this
-----------
Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
--------
"Documentation" means the user manuals and other documentation provided by
-------------
Stamps.com for use with Software. Unless expressly excluded, the term
"Software" as used herein shall include the applicable Documentation.
"Effective Date" has the meaning given to that term in the preamble of this
--------------
Agreement.
"Exceptions" has the meaning given to that term in Section 11.
----------
"Excess Warranty" has the meaning given to this term in Section 12.
---------------
"Logo Program" has the meaning given to this term in Section 6.7.
------------
1
<PAGE>
"Materials" has the meaning given to this term in Section 8.1.
---------
"OEM" means original equipment manufacturer.
---
"Service Fee Revenues" has the meaning given to this term in Section 5.2.
--------------------
"Software" means (i) the object code version of Stamps.com's software
--------
programs listed in Exhibit D, and (ii) the object code version of any updates,
modifications or revisions to such computer programs provided to Distributor
pursuant to the terms of this Agreement.
"Software License Agreement" means the agreement provided in Exhibit B.
--------------------------
"Term" has the meaning given to that term in Section 16.1.
----
"Trademarks" means all then-current names, marks and designations used by
----------
Stamps.com.
"Warranty Period" has the meaning given to that term in Section 9.1.
---------------
2. APPOINTMENT OF DISTRIBUTOR.
---------------------------
2.1 Grant to Distributor. Subject to all the term and conditions of this
--------------------
Agreement and the limitations set forth below, Stamps.com hereby grants and
Distributor hereby accepts, a non-transferable, non-exclusive right to market
and distribute copies of Software solely to Customers in the United States.
Copies of Software are licensed for distribution and not sold. Distributor
shall not appoint, hire or otherwise engage subdealers to market or distribute
Software without the express written consent of Stamps.com.
2.2 Software License. Subject to all the terms and conditions of this
----------------
Agreement, Stamps.com hereby grants a non-exclusive, nontransferable, royalty-
free, sub-licensable and fully-paid-up license to Distributor, for so long as
this Agreement remains in effect, to use, reproduce and copy all Software and to
provide and make available to Customers, copies of all Software; provided that
-------- ----
the user of all such copies provided or made available to Customers shall be
subject to the terms of the applicable Software License Agreement between each
such Customer and Stamps.com. The foregoing license is provided by Stamps.com to
Distributor free of charge.
2.3 Title and Ownership. Distributor hereby acknowledges that all right,
-------------------
title and interest in and to Software shall at all times remain that of
Stamps.com, including all rights in the nature of copyright, patent, trade-
secret and other intellectual property and proprietary rights with respect to
Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
-----------------------------------
3.1 Distribution of Software. Distributor shall use its best efforts to
------------------------
distribute Software to Customers pursuant to the provisions set forth in Exhibit
A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use,
---------------------------
market or distribute Software other than as provided herein. Distributor agrees
not to (i) disassemble, decompile or otherwise reverse engineer Software or
otherwise attempt to learn the source code, structure, algorithms or ideas
underlying Software, (ii) take any action contrary to Stamps.com's Software
License Agreement, except
2
<PAGE>
as expressly and unambiguously allowed under this Agreement, (iii) alter or
modify Software, (iv) attempt to disable any security devices or codes
incorporated in Software, or (v) allow or assist others to do any of the
foregoing.
3.3 Distributor's Procurement of USPS Approval. Distributor must obtain
------------------------------------------
final US Postal Service ("USPS") certification and approval on or prior to [***]
---
from the Effective Date for all products in which it plans to include Stamps.com
Software. Such certification must be evidenced in writing from the USPS to
Distributor or such other appropriate proof of certification acceptable to
Stamps.com.
3.4 Software Package; Software License Agreement. Subject to Exhibit A,
--------------------------------------------
Distributor shall ensure that each copy of Software distributed by or through
Distributor to Customers shall include all components of such Software as
prepackaged by Stamps.com, including, without limitation, (i) diskettes or other
media bearing labels, (ii) Stamps.com's end user manuals and Documentation,
Stamps.com's Software License Agreement, and (iii) at the option of Stamps.com,
advertising and promotional materials supplied by Stamps.com. The parties to
each Software License Agreement shall be Stamps.com and the Customer. The terms
of the Software License Agreement shall be subject to change by Stamps.com, at
its sole discretion, upon reasonable notice to Distributor. Stamps.com shall
have the right to add to or discontinue any or all Software, but only upon
thirty (30) days' prior written notice to Distributor.
3.5 Third Party Infringement. Distributor shall notify Stamps.com
------------------------
promptly of any infringement of any copyrights, Trademarks, or other
intellectual property or proprietary rights relating to any Software. Stamps.com
may, in its sole discretion, take or not take whatever action it believes is
appropriate in connection with any such infringement. If Stamps.com elects to
take any such action, Distributor agrees to fully cooperate in connection
therewith. If Stamps.com initiates and prosecutes any action with respect to
infringement of any copyrights, Trademarks, or other proprietary rights relating
to any Software, Stamps.com shall be entitled to retain all amounts (including
court costs and attorneys' fees) awarded by way of judgment, settlement, or
compromise with respect thereto.
3.6 Compliance. Distributor shall ascertain and comply with all
----------
applicable state, federal and local laws and regulations and standards of
industry or professional conduct, including, without limitation, those
applicable to product claims, labeling, approvals, registrations and
notifications, the Internic, the Internet Assigned Numbers Authority and
Internet community standards, and shall also obtain Stamps.com's prior written
consent before adding any product claim, label, instructions, packaging or the
like to any copy of Software.
3.7 Export Control. Distributor shall not export or re-export any
--------------
Software outside the United States without Stamps.com's express written consent.
In the event such consent is received, Distributor shall comply with the U.S.
Foreign Corrupt Practices Act and all export laws, restrictions, national
security controls and regulations of the United States and other applicable
foreign agency or authority, and shall not export or re-export, or allow the
export or re-export of Software, any component of Software, any other product or
Confidential Information or any copy or direct product of any of the foregoing
in violation of any such restrictions, laws or regulations, or to Cuba, Libya,
North Korea, Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any
national of such country) specified in the then current Supplement No. 1 to Part
740, or, in violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
<PAGE>
4. DELIVERY TO DISTRIBUTOR.
-----------------------
4.1 Delivery. Stamps.com shall deliver a master copy of all Software to
--------
Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Stamps.com shall provide sufficient copies of all Documentation
to Distributor to allow Distributor to include such Documentation to Customers
with Software pursuant to Distributor's obligations as set forth in Exhibit A.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
-----------------------------------
5.1 Distributor's Prices to Customers. Distributor shall provide or make
---------------------------------
available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
---------------
Stamps.com shall pay Distributor a [***] of all Service Fee Revenues received by
---
Stamps.com attributable to purchases by Customers using Software; provided that,
-------- ----
if any such Customer previously obtained any Software from any person other than
Distributor, the Service Fee Revenues attributable to purchases by such Customer
shall not be included for purposes of determining Distributor's [***] payable by
---
Stamps.com to Distributor shall be paid within forty-five (45) days after [***]
---
in which Stamps.com receives the Service Fee Revenues from which such fees are
derived. As used herein, the term "Service Fee Revenues" shall mean all service
fees received by Stamps.com from purchases of postage by Customers and shall
specifically exclude [***].
---
6. MARKETING AND ADVERTISING.
-------------------------
6.1 Distributor's General Undertaking, Representation, and Warranty.
---------------------------------------------------------------
Distributor represents, warrants, and covenants to Stamps.com that all
advertising and marketing materials relating to Software and/or Stamps.com that
are developed by Distributor shall be accurate in all respects.
6.2 Distribution of Software. Distributor hereby agrees to advertise,
------------------------
market, sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Stamps.com or is a part of Stamps.com; provided
--------
that all advertisements and promotional materials, packaging and anything else
- ----
bearing a Trademark shall identify Stamps.com as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
-------- -------
governed by Section 8.3.
6.3 Marketing Materials. Stamps.com agrees to provide to Distributor, at
-------------------
no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Stamps.com generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
-------- ----
trademark and other property markings of Stamps.com are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Stamps.com and, except insofar as they are
distributed by Distributor in the course of its performance of its duties under
this Agreement must be promptly returned to Stamps.com upon the expiration or
termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
-------- ----
promotional materials to Stamps.com for
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
<PAGE>
Stamps.com's review, and Stamps.com shaft have the right to approve or reject
any such promotional materials in Stamps.com's sole discretion.
6.4 Web Sites.
---------
(i) Hypertext Links. If Distributor has a World Wide Web site
---------------
("Web site"), Distributor shall establish a hypertext link to Stamps.com's Web
site within thirty (30) days of the Effective Date. With respect to each
hypertext link linking users of Distributor's Web site to Stamps.com's Web site,
Distributor shall not alter the look, feel, or functionality of Stamps.com's Web
site and shall not act to prevent the look and feel of Stamps.com's Web site
(including, without limitation, page format, navigational bars, colors, fonts,
Stamps.com's trademarks, all hyperlinks appearing on Stamps.com's Web site or,
in general, the overall design of Stamps.com's Web site) from being displayed.
(ii) Responsibilities. Each party shall be solely responsible for the
----------------
development, operation, and maintenance of its Web site and for all materials
that appear on its Web site, including without limitation, (i) the technical
operation of its Web site and all related equipment, (ii) the accuracy and
appropriateness of materials posted on its Web site, and (iii) ensuring that
materials posted on its Web site do not violate any law, rule, or regulation, or
infringe upon the rights of any third party and are not defamatory, obscene or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other's Web site.
6.5 Advertising and Public Relations. Distributor may advertise Software
--------------------------------
in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in any
periodical, Distributor shall provide Stamps.com with notice (pursuant to
Section 17.8 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor shall engage in public relations
activities to encourage the publication of articles and other publications
regarding Software.
6.6 Announcements. Within thirty (30) days following the Effective date,
-------------
Stamps.com and Distributor shall jointly issue a press release announcing
Distributor's appointment under this Agreement. Thereafter, each party shall
obtain the other party's prior written approval of all press releases that such
party issues with respect to this Agreement and the transactions contemplated by
this Agreement. Distributor also shall obtain Stamps.com's prior written
approval of all other press releases that Distributor issues with respect to
Software.
6.7 Logo Program. During the Term, upon mutual agreement of the Parties,
------------
Distributor shall participate in a promotional logo program ("Logo Program") as
follows: [***]. The logos used in die Logo Program shall be deemed Trademarks
---
for all purposes of this Agreement, including the license granted by Stamps.com
in Section 8.3.
7. INSTALLATION AND SUPPORT.
------------------------
Stamps.com shall be solely responsible for providing Customers with
installation, maintenance and technical integration support with respect to
Software. Distributor shall notify Stamps.com as soon as possible, and within
no more than twenty-four (24) hours or one (1) Business Day, whichever period is
longer, of Distributor's receipt of any Customer request for support or
assistance with respect to Software.
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
<PAGE>
8. PROTECTION OF PROPRIETARY RIGHTS.
--------------------------------
8.1 Acknowledgment of Proprietary Materials. Distributor hereby
---------------------------------------
acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Stamps.com (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Stamps.com, the development of which required the expenditure of considerable
time and money by Stamps.com.
8.2 Proprietary Markings. Distributor hereby agrees to ensure that all
--------------------
copyright trademark and other proprietary notices of Stamps.com affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified by Distributor.
8.3 Stamps.com Trademarks. Distributor acknowledges that Stamps.com is
---------------------
the owner of all right, title and interest in and to all the Trademarks set
forth in Exhibit C, together with any new or revised names, designs or
designations that Stamps.com may adopt to identify it or any Software during the
Term, and Distributor agrees not to adopt or use any of such Trademarks in any
manner whatsoever except as expressly provided in this Agreement.
Stamps.com hereby grants Distributor a license during the Term to use
the Trademarks, provided that (i) they are used solely in connection with the
-------- ----
marketing and distribution of Software and in accordance with Stamps.com's
specifications as to style, color and typeface set forth in Exhibit C, (ii) such
use shall be subject to prior written approval of Stamps.com, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of
this Agreement, Distributor will take all action necessary to transfer and
assign to Stamps.com, or its nominee, any right, title or interest in or to any
of the Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Stamps.com immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks
anywhere in the world or for any mark confusingly similar thereto. Stamps.com
may elect to apply for registration of one or more of the Trademarks anywhere in
the world at its expense, and, in such event, Stamps.com shall so notify
Distributor and Distributor shall assist and cooperate with Stamps.com in
connection therewith. Distributor also agrees not to use or contest, during or
after the term of this Agreement, any Trademark, name, mark or designation used
by Stamps.com anywhere in the world (or any name, mark or designation similar
thereto). Distributor acknowledges and agrees that all use of the Trademarks by
Distributor shall inure to the benefit of Stamps.com.
8.4 Confidential Information. Distributor hereby agrees to hold any
------------------------
information, materials and data made available to it by Stamps.com that
reasonably should be understood to be confidential (collectively, "Confidential
Information"), in confidence and agrees not to use, copy, or disclose, or permit
any of its personnel to use, copy, or disclose the same for any purpose that is
not specifically authorized herein. For the purposes of this Section 8.4, the
terms and conditions of this Agreement and the Materials are Confidential
Information of Stamps.com.
9. WARRANTY.
--------
9.1 Limited Warranty of Performance. Stamps.com warrants to Distributor
-------------------------------
that all Software will, under normal use, conform to the limited warranty
contained in the Software License Agreement
6
<PAGE>
applicable to such Software during the warranty period set forth in such
Agreement (the "Warranty Period"). The foregoing warranty will apply only to the
most current version of Software issued by Stamps.com from time to time.
Stamps.com assumes no responsibility for claims resulting from the distribution
of superseded, outdated, or uncorrected versions of Software.
9.2 Exclusive Remedy. If a Customer contacts Stamps.com during the
----------------
Warranty Period claiming a breach of the warranty set forth in the then-current
Software License Agreement provided by Distributor to that Customer, Stamps.com
will use reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Software. If a Customer contacts Distributor during
the Warranty Period claiming any such breach of warranty, Distributor shall
promptly refer the matter to Stamps.com. DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY
IN THE EVENT OF ANY SUCH CLAIM, IF VERIFIED, IS EXPRESSLY LIMITED TO
STAMPS.COM'S REASONABLE EFFORTS TO CORRECT OR REPLACE SUCH DEFECTIVE SOFTWARE
AND/OR DOCUMENTATION AT STAMPS.COM'S SOLE EXPENSE.
9.3 Disclaimer. No representation or other affirmation of fact not set
----------
forth herein, including, without limitation, statements regarding capacity,
compliance, suitability for use, or performance of any Software, shall be or be
deemed to be a warranty or representation by Stamps.com for any purpose, or give
rise to any liability or obligation of Stamps.com whatsoever. The Software has
been designed to record, store, process and calculate and present calendar dates
falling on or after January 1, 2000, and is designed to calculate any
information dependent on or relating to such dates in the same manner and with
the same functionality, data integrity and performance as the Software records,
stores, processes, calculates and presents calendar dates on or before December
31, 1999, or calculates and presents any information dependent on or relating to
such dates. In addition, Stamps.com has no reason to believe that the Software
will lose functionality with respect to the introduction of records containing
dates falling on or after January 1, 2000. NEVERTHELESS, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE, AND NON-INFRINGEMENT, AND ANY
WARRANTY, GUARANTEE OR REPRESENTATION AS TO (Y) THE ABILITY OF THE SOFTWARE TO
PROCESS CALENDAR DATE VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES
FROM JANUARY 1, 1999 THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH
CALENDAR DATE VALUES, TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (Z)
WHETHER ANY OR ALL DATA FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT
FIELDS CAPABLE OF INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS
CORRECTLY.
10. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
------------------------------------------
10.1 No Consequential Damages; Limitation of Liability. IN NO EVENT SHALL
-------------------------------------------------
EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR
LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR
INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
EXCEPT WITH RESPECT TO A BREACH OF SECTION 8.4 AND DISTRIBUTOR'S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 12 BELOW, THE LIABILITY OF EITHER PARTY FOR ANY CLAIM
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT
PAID BY STAMPS.COM TO DISTRIBUTOR WITH RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE
GIVING RISE TO SUCH CLAIM.
7
<PAGE>
10.2 Injunctive Relief. Distributor acknowledges that any breach of its
-----------------
obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Stamps.com will cause Stamps.com irreparable injury
for which there are inadequate remedies at law, and therefore Stamps.com will be
entitled to injunctive relief in addition to all other remedies provided by this
Agreement or available at law.
11. DEFENSE OF INTELLECTUAL PROPERTY CLAIMS.
----------------------------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that Distributor's
distribution and/or use of Software infringes a third party's copyright or
trademark or misappropriates a third party's trade secret, and if given access
by Distributor to any information Distributor has regarding such alleged
infringement, Stamps.com agrees to defend and hold harmless Distributor in such
action at its expense and will pay any costs or damages finally awarded against
Distributor in any such action; provided that Stamps.com shall have had sole
-------- ----
control of the defense of any such action and all negotiations for its
settlement or compromise. In the event that Stamps.com reasonably believes that
any Software infringes a copyright or trademark or misappropriates a trade
secret, Stamps.com may, at its option and at its expense, either procure for
Distributor the right to continue using any Software, modify the same so it
becomes non-infringing or allow the Distributor to terminate this Agreement
pursuant to Section 16.2(ii). Stamps.com shall not have any liability to
Distributor under any provision of this clause if any infringement, or claim
thereof, is based upon: (i) the use of Software in combination with other
computer hardware or software program that Stamps.com has not approved for use
with such Software, (ii) Software that has been modified by Distributor, (iii)
Distributor's use of Software beyond the scope of the license granted to it by
Stamps.com hereunder, (iv) Distributor's use after notice of infringement or
misappropriation, or (v) Infringement relating solely to the use of Software but
not the Software itself. Distributor shall indemnify Stamps.com and hold it
harmless against any expense, judgment or loss for infringement of any patent or
other intellectual property right which results from the exceptions set forth in
the immediately preceding sentence of this Section 11 (collectively,
"Exceptions"). No costs or expenses shall be incurred for the account of
Stamps.com without the prior written consent of Stamps.com. THE FOREGOING
STATES THE ENTIRE LIABILITY OF STAMPS.COM WITH RESPECT TO INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY ANY
SOFTWARE, OR ANY PART THEREOF, OR BY ITS OPERATION.
12. DISTRIBUTOR'S INDEMNITY.
-----------------------
If notified promptly in writing of any action (and all prior claims
relating to such action) against Stamps.com based on a claim arising from (i)
infringement of any patent or other intellectual property right which results
from the Exceptions; (ii) Distributor's grant of a warranty to any Customer
exceeding the limited warranty set forth in Section 9.1 of this Agreement (an
"Excess Warranty"), (iii) Distributor's material breach of this Agreement, or
(iv) Distributor's negligence or willful misconduct Distributor shall indemnify
Stamps.com and hold Stamps.com harmless from and against any judgment, damage,
liability, or expenses, including reasonable attorney's fees, arising out of any
claim with respect to the breach or alleged breach of such Excess Warranty or
this Agreement or such negligence or willful misconduct; provided that
-------------
Distributor shall have had sole control of the defense of any such action and
all negotiations for its settlement or compromise; and, provided further that no
-------- -------
cost or expense shall be incurred for the account of Distributor without
Distributor's prior written consent.
13. REPORTS AND RECORDS.
-------------------
13.1 Reports. Distributor shall keep complete records concerning all
-------
copies of Software provided to, or downloaded by, Customers, as the case may be.
Within ten (10) Business Days of the
8
<PAGE>
close of each month during the Term, Distributor shall complete and forward to
Stamps.com a monthly report containing a summary setting forth the number of
copies of Software provided to, or downloaded by, Customers, as the case may be,
and the name and location of the Customer who was provided with, or downloaded a
copy of, Software, as the case may be.
13.2 Audit. Distributor agrees to maintain copies of all documentation
-----
relating to the distribution of Software under this Agreement. If requested in
writing by Stamps.com, Distributor shall permit Stamps.com and its independent
certified public accountants, subject to a non-disclosure agreement with
Distributor, to have access to such documentation at Distributor's place of
business during ordinary business hours. Distributor agrees to keep for three
(3) years after termination of this Agreement records of all copies of Software
provided to or downloaded by Customers, as the case may be, in each case
sufficient to adequately administer a recall of any Software and to fully
cooperate in any decision by Stamps.com to recall, retrieve and/or replace any
Software. Stamps.com agrees to maintain copies of all documentation relating to
Service Fee Revenues from Customer purchases using Software distributed by
Distributor hereunder. Within fifteen (15) days after the end of each month,
Stamps.com shall provide a report to Distributor setting forth the revenues
received by Stamps.com for such month which are attributable to purchases from
Customers using such Software. If requested in writing by Distributor,
Stamps.com shall permit, at Distributor's sole expense, Distributor and
distributor's independent certified public accountants, subject to a non-
disclosure agreement with Stamps.com, up to once per calendar year, to have
access solely to such documentation as is reasonably necessary for Distributor
and Distributor's accountants to verify the amount of revenues set forth on such
report; provided, in no event shall such access include access to Stamps.com's
servers. For a period of three (3) years after termination of this Agreement,
Stamps.com agrees to keep records of all Customer purchases made pursuant to
Software distributed by Distributor hereunder.
14. RELATIONSHIP OF PARTIES.
-----------------------
Distributor is an independent contractor and nothing contained in this
Agreement shall be construed to constitute either party as a partner, joint
venturer, co-owner, employee, or agent of the other party, and neither party
shall hold itself out as such. Neither party has any right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf of
the other party, it being intended by both Distributor and Stamps.com that each
shall remain an independent contractor responsible for its own actions.
Distributor agrees to indemnify and hold Stamps.com harmless from and against
any damage or expenses, including reasonable attorney's fees, arising out of
Distributor's breach of the provisions of this Section 14.
15. ASSIGNMENT.
----------
Distributor shall not assign, transfer or otherwise dispose of this
Agreement in whole or in part to any individual, corporation or other entity
without the prior written consent of Stamps.com.
16. TERM OF AGREEMENT; TERMINATION.
------------------------------
16.1 Term. This Agreement shall be effective as of the Effective Date and
----
shall have an initial term that commences on the Effective Date and expires
[***] from the Effective Date. Upon the expiration of such term (or any renewal
---
term), this Agreement shall [***] unless either party notifies the other party
---
at least [***] prior to the applicable renewal date of its intention to not
---
renew the Agreement (the initial term and any renewal term shall be collectively
referred to as the "Term").
- -------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
9
<PAGE>
16.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is appointed, or if any substantial part of the other party's assets is
the object of attachment, sequestration or other type of comparable proceeding,
and such proceeding is not vacated or terminated within thirty (30) days after
its commencement or institution.
(ii) Default. Either party may terminate this Agreement if the
-------
other party commits a material breach of any of the material terms or provisions
of this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Stamps.com may immediately terminate this Agreement in the event
Distributor breaches its obligations under Section 2.1, 3.2, 8.3 or 8.4.
(iii) Licenses. Either party may terminate this Agreement
--------
immediately if it or the other party is unable to obtain or renew any permit,
license or other governmental approval necessary to carry on the business
contemplated under this Agreement.
(iv) USPS Certification for Distributor. Stamps.com may terminate
----------------------------------
this Agreement immediately upon written notice to Distributor in the event
Distributor fails to obtain USPS certification in accordance with Section 3.3 of
the Agreement.
16.3 Termination for Convenience. Each party shall terminate this
---------------------------
Agreement at any time with or without cause upon [***] prior written notice to
---
the other party. In the event Stamps.com terminates this Agreement pursuant to
this Section 16.3, [***].
---
16.4 Rights Upon Termination. Upon termination of this Agreement by
-----------------------
expiration of the Term or otherwise, all further rights and obligations of the
parties shall cease, except that the parties shall not be relieved of (i) their
respective obligations to pay any moneys due or which become due as of or
subsequent to the date of termination, and (ii) any other respective obligations
under Sections 2.3, 3.2, 8.1, 8.3 (first and third paragraphs only), 8.4, 9.2,
9.3, 10.1, 10.2, 11, 12, 13.1, 13.2, 14, 15, 16.4, 16.5, and 17.1 - 17.9.
Without limiting the foregoing, upon termination of this Agreement, all licenses
granted to Distributor hereunder shall terminate and each party shall remove any
links from its Web site to the other party's Web site.
16.5 Existing Licenses. All Software License Agreements in effect as of
-----------------
the date of termination or expiration of this Agreement shall survive such
termination or expiration and continue in effect until terminated in accordance
with their terms.
17. MISCELLANEOUS.
-------------
17.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil commotion,
acts of public enemies, blockade, embargo, strikes, outage of the Internet, law,
order, proclamation, regulation, ordinance, demand, or requirement having a
legal effect of any government or any judicial authority or representative of
any such government, or any other act
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
10
<PAGE>
whatsoever, whether similar or dissimilar to those referred to in this Section
17.1, which is beyond the reasonable control of the party affected, then the
party so affected shall, upon giving prior written notice to the other party, be
excused from such performance to the extent of such prevention, restriction, or
interference, provided that the party so affected shall use reasonable
commercial efforts to avoid or remove such causes of nonperformance, and shall
continue performance hereunder with reasonable dispatch whenever such causes are
removed. The parties agree and acknowledge that the foregoing shall include
Stamps.com's failure to obtain any necessary governmental approval required in
connection with the use of any Software, including without limitation any postal
service approval.
17.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all previous negotiations, agreements
and commitments with respect thereto, and shall not be released, discharged,
changed or modified in any manner except by instruments signed by duly
authorized officers or representatives of each of the parties hereto. No course
of prior dealing between the parties and no usage of the trade shall be relevant
to supplement or explain any term used herein. Acceptance or acquiescence in a
course of performance rendered hereunder shall not be relevant to determine the
meaning of these terms and conditions even though the accepting or acquiescing
party has knowledge of the performance and opportunity for objection.
17.3 Applicable. Any claim or controversy relating in any way to this
----------
Agreement shall be governed and interpreted exclusively in accordance with the
laws of the State of California and the United States without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
This Agreement shall be deemed to have been made in, and shall be construed
under, the internal laws of the State of California, without regard to the
principles of conflicts of laws thereof and the United Nations Convention on
Contracts for the International Sale of Goods. Any mediation under Section
17.4(iii) below shall be conducted in Los Angeles County, California. In
addition, Stamps.com and Distributor acknowledge and agree that the courts
located in such county shall have exclusive jurisdiction in any action or
proceedings with respect to this Agreement, including the federal district
courts located in such county.
17.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
(i) General Intent. Stamps.com and Distributor intend that all
--------------
problems and disputes relating to this Agreement or arising from the
transactions contemplated hereby ("Disputes") shall be resolved through the
procedures of this Section 17.4; provided, however, that neither party shall be
-------- -------
under any obligation to proceed in accordance with this Section 17.4 with
respect to Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2,
8.3 or 8.4 of this Agreement, as to which a party may take any legal action in a
court of law or equity (without the necessity of posting any bond) to assert or
enforce a claim that it has against the other party under this Agreement. The
procedures in this Section 17.4 shall not replace or supersede any other remedy
to which a party is entitled under this Agreement or under applicable law.
(ii) Informal Resolution Efforts. Stamps.com and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Stamps.com and the president
or any vice president of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
17.4(ii), the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process, Stamps.com
and Distributor shall attempt in good faith to resolve their differences
voluntarily with the aid of an impartial mediator, who will attempt to
facilitate negotiations. The mediator shall be selected by mutual agreement of
Stamps.com and Distributor. If Stamps.com and
11
<PAGE>
Distributor cannot agree on a mediator, the American Arbitration Association or
JAMS/Endispute shall designate a mediator at the request of either party. Any
mediator so designated must be acceptable to both parties. The mediation shall
be confidential, and the mediator may not testify for either party in any later
proceeding relating to the Dispute. Each party shall bear its own costs in the
mediation. The fees and expenses of the mediator shall be shared equally by the
parties.
(iv) Court Actions. If Stamps.com and Distributor cannot resolve a
-------------
Dispute through mediation pursuant to Section 17.4(iii) above, either party may
seek further redress by taking legal action in a court of law or equity to
assert or enforce a claim that it has against the other party under this
Agreement.
17.5 Statute of Limitations. Any action by the Distributor for breach of
----------------------
these terms and conditions must be commenced within one (1) year after the cause
of action has accrued.
17.6 Partial Illegality. If any provision of this Agreement or the
------------------
application thereof to any party or circumstances shall be declared void,
illegal or unenforceable, die remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event the parties
shall use their best efforts to replace the invalid or unenforceable provisions
by a provision that, to the extent permitted by the applicable law, achieves the
purposes intended under the invalid or unenforceable provision. Any deviation by
either party from the terms and provisions of this Agreement to the limited
extent necessary to comply with applicable laws, rules or regulations shall not
be considered a breach of this Agreement.
17.7 Waiver of Compliance. Any failure by any party hereto to enforce at
--------------------
any time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every item and
condition of this Agreement.
17.8 Notices. All notices and other communications in connection with
-------
this Agreement shall be in writing and shall be sent to the respective parties
at addresses set forth below in this Section 17.8, or to such other addresses as
may be designated by the parties in writing from time to time in accordance with
this Section 17.8, by registered or certified air mail, postage prepaid, or by
express courier service, service fee prepaid, or by telefax with a hard copy to
follow via air mail or express courier service in accordance with this Section
17.8. All notices shall be deemed received (i) if given by hand, immediately,
(ii) if given by air mail, five (5) business days after posting, (iii) if given
by express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sender's identification line produced
by the recipients telefax machine or in the sender's transmission confirmation
report as produced electronically by the sender's telefax machine.
To Stamps.com: Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
Attention: President
Facsimile: (310) 450-7337
12
<PAGE>
With a copy to:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bruce R. Hallett, Esq.
Facsimile: (949) 790-6301
To Distributor: Dymo-CoStar Corporation
599 West Putnam Ave.
Greenwich, CT 06830
Attn: President
Facsimile: (203) 661-1540
With a copy to:
John J. O'Connor
Esselte Corporation
71 Clinton Road
Garden City, New York 11530
17.9 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representative as of the Effective
Date.
STAMPS.COM INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
DISTRIBUTOR:
DYMO-COSTAR CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
13
<PAGE>
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor's obligations under the Agreement are as follows:
- ------------------------------------------------------------
1. Distributor must obtain USPS certification for any of distributor's
products bundled with the Software in accordance with Section 3.3 of this
Agreement.
2. Distributor shall promote Stamps.com's [***] pursuant to Section 6.7 of
---
this Agreement, and in accordance with the logo usage guidelines which are
mutually agreeable to Distributor and Stamps.com and which will be provided
under separate cover by Stamps.com from time to time during the Term.
3. Distributor shall advertise the [***]. Distributor's advertising of the
---
Software and Logo must comply with Section 6 of this Agreement and the
mutually agreeable logo usage guidelines to be provided under separate
cover by Stamps.com from time to time during the Term.
4. Distributor shall bundle and distribute the Software on [***]; provided,
--- --------
however, that Distributor shall not be required to bundle and distribute
-------
the Software on [***].
---
5. Distributor shall promote, market, and provide for the installation of the
Software from the [***] as well as provide Customer's an [***].
--- ---
6. Distributor shall market Stamps.com's [***] (subject to paragraph 3 and 4).
---
7. Distributor shall provide Stamps.com the right to [***].
---
8. At all times during which the Agreement remains in effect, Distributor
shall provide and maintain a hypertext link to the Stamps.com World Wide
Web site (the "Stamps.com Site") located from [***] on Distributor's World
---
Wide Web site that contain references to Stamps.com and/or the Software.
9. Distributor shall provide Stamps.com with [***] on the Dymo-CoStar Site and
---
each other page of the Co-Star Site on which a reference to Stamps.com, the
Software, or both appears. The parties may mutually agree on such [***] on
---
a case-by-case basis.
10. Distributor shall provide Stamps.com the right to market and [***].
---
Stamps.com and the Distributor must agree to commercially reasonable terms
to govern such marketing and [***].
---
11. Distributor shall use commercially reasonable and good faith efforts to
[***] during the Term in the United States.
----
12. Distributor shall provide Stamps.com with the necessary resources and
expert level engineering and technical support assistance to integrate the
Software into Distributor's LabelWriter printer products at no charge.
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
A-1
<PAGE>
13. In a collaborative effort with Stamps.com, Distributor shall include
Stamps.com in discussions to integrate the Software into Distributor's Co-
Star Label Printer software.
Stamps.com's obligations with respect to this Agreement are as follows:
- -----------------------------------------------------------------------
1. Within thirty (30) days of Stamps.com's USPS certification, Stamps.com
shall provide the Software to Distributor for integration with
Distributor's USPS approved LabelWriter printer products and label designs.
2. Stamps.com shall have the right to market and [***]. Stamps.com and the
---
Distributor must agree to commercially reasonable terms to govern such
marketing and [***].
---
3 Stamps.com shall provide reasonable technical support to Distributor to
complete the integration of the Software into Distributor's products at no
charge.
4. Stamps.com shall [***].
---
- --------------------
[***]Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
A-2
<PAGE>
EXHIBIT B
STANDARD SOFTWARE LICENSE AGREEMENT
-----------------------------------
STAMPS.COM INC. END-USER SOFTWARE LICENSE AGREEMENT FOR STAMPS.COM
INTERNET POSTAGE SINGLE-USER VERSION
IMPORTANT: READ CAREFULLY
BEFORE OPENING THE SEALED ENVELOPE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL,
THE USE OF WHICH IS SUBJECT TO THIS END-USER SOFTWARE LICENSE AGREEMENT.
OPENING THE SEALED ENVELOPE CONSTITUTES YOUR AND (IF APPLICABLE) YOUR COMPANY'S
ASSENT TO AND ACCEPTANCE OF THIS END-USER SOFTWARE LICENSE AGREEMENT (THE
"LICENSE" OR "AGREEMENT"). IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MUST
NOT USE THIS PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR
---
ENFORCEABILITY OF THIS AGREEMENT, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL
BY OR ON BEHALF OF STAMPS.COM, INC. ("STAMPS.COM") SHALL BE CONSTRUED AS AN
INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
STAMPS.COM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
LICENSE AND WARRANTY:
The Software which accompanies this License (the "Software") is the property of
Stamps.com and is protected by state, federal, and international copyright law.
Although Stamps.com continues to own the Software, you will have certain rights
to use the Software after your acceptance of this License. Except as may be
modified by a license addendum which accompanies this License, your rights and
obligations with respect to the use of this Software are as follows:
1. YOU MAY:
A. Use only one copy of any version of the Software contained on the enclosed
CD-ROM or floppy disk or downloaded from the Internet or any other online
source on a single computer;
B. Install the Software from its original distribution medium onto another
computer so long as any other copies of the Software are deleted or
otherwise made irreversibly inoperative;
C. Make one copy of the Software for archival purposes; and
D. Distribute unmodified and unregistered copies of the Software on the
original distribution medium for non-commercial use.
2. YOU MAY NOT:
A. Use the Software to purchase or print evidence of United States postage
until and unless you have been issued a Postal Meter License by the United
States Postal Service;
B. Sublicense, rent or lease any portion of the Software;
C. Reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative
works from the Software;
B-1
<PAGE>
D. Copy or move any version of the Software after it has been installed and/or
registered to another computer;
E. Use the Software to commit or attempt to commit any form of fraud against
or engage in any form of criminal activity involving the United States
Postal Service or related agencies and organizations;
F. Authorize or allow other persons or entities to use the Software unless
such persons are members of your immediate family or household;
G. Make known or allow to be made known information relating to Software
serial numbers, accounts, passwords, device identification numbers, or any
other information that could reveal or jeopardize the integrity of your
Stamps.com account; or
H. Install or use the Software on a computer located outside the United States
of America or its territories and possessions.
3. Warranty
Stamps.com warrants that the tangible media on which the Software is distributed
will be free from defects sixty (60) days from the date of delivery of the
Software to you. Your sole remedy in the event of a breach of this warranty
will be that Stamps.com will, at its option, replace any defective media
returned to Stamps.com within the warranty period. Stamps.com does not warrant
that the Software will not meet your requirements or that operation of the
Software will be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR
REPRESENTATION AS TO (1) THE ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE
VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999
THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES,
TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (2) WHETHER ANY OR ALL DATA
FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF
INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
THIS ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
4. Disclaimer of Damages
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL STAMPS.COM BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST
DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF STAMPS.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
IN NO CASE SHALL STAMPS.COM'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE
SOFTWARE. The disclaimers and limitations set forth above will apply regardless
of whether you accept the Software.
5. U.S. Government Restricted Rights:
If your company is an agency of the United States government, as defined in FAR
section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-
7014(a)(5) or otherwise, all software and accompanying documentation provided in
connection with this Agreement are "commercial items," "commercial computer
software," and/or "commercial computer software documentation." Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the United States government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
USE, DUPLICATION, OR DISCLOSURE BY THE UNITED STATES GOVERNMENT IS SUBJECT TO
RESTRICTIONS AS SET FORTH IN SUBPARAGRAPH (C)(1)(II) OF THE RIGHTS IN TECHNICAL
DATA AND COMPUTER SOFTWARE CLAUSE AT DFARS 252.227-7013 OR SUBPARAGRAPHS (C)(1)
AND (2) OF THE COMMERCIAL COMPUTER SOFTWARE RESTRICTED RIGHTS CLAUSE AT 48 CFR
52.227-19, AS APPLICABLE.
6. Export:
You may not export or re-export the Software outside the United States without
Stamps.com's express written consent. In the event such consent is received,
you must comply with the U.S. Foreign Corrupt Practices Act and all export laws,
restrictions, national security controls and regulations of the United States
and other applicable foreign agency or authority. You shall not export or re-
export, or allow the export or re-export of the Software, any component of
Software, or any copy of the Software in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to
any Group D:1 or E:2 country (or any national of such country) specified in the
then current Supplement No. 1 to part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations (or any
successor regulations or supplement), except in compliance with and with all
licenses and approvals required under applicable export laws and regulations,
including without limitation, those of the U.S. Department of Commerce.
7. General.
This Agreement will be governed by the laws of the State of California and any
applicable federal law or Postal Regulations. This Agreement may only be
modified by a license addendum which accompanies this License or by a written
document which has been signed by both you and Stamps.com. Should you have any
questions concerning this Agreement, or if you desire to contact Stamps.com for
any reason, please write:
Stamps.com Inc.
2900 31st Street, Suite 150
Santa Monica, CA 90405
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EXHIBIT C
STAMPS.COM'S TRADEMARKS
-----------------------
1. "S" Design
2. "S" Design with "Internet Postage"
3. "StampFX"
4. "stamps.com"
5. "Stamps for Home"
6. "Stamps for Office"
7. "Stamps for Networks"
8. "Stamps2000"
9. "Essurance"
10. "Postage Server"
* Free Postage Logo and trademark to be provided by Stamps.com
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EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Stamps.com software
