<PAGE>
As filed with the Securities and Exchange Commission on October 8, 1999
Registration No. 333-85359
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------
AMENDMENT NO. 6
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
E-STAMP CORPORATION
(Exact name of Registrant as specified in its charter)
----------------
<TABLE>
<S> <C> <C>
Delaware 5961 76-0518568
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
</TABLE>
2855 Campus Drive, Suite 100
San Mateo, California 94403
(650) 554-8454
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
ROBERT H. EWALD
President and Chief Executive Officer
2855 Campus Drive, Suite 100
San Mateo, California 94403
(650) 554-8454
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
<TABLE>
<S> <C>
DAVID J. SEGRE MICHAEL J. HALLORAN
MICHELLE L. WHIPKEY JAMES P. CLOUGH
MARK D. BEARIAULT PATRICK J. DEVINE
Wilson Sonsini Goodrich & Rosati JAMES J. MASETTI
Professional Corporation Pillsbury Madison & Sutro LLP
650 Page Mill Road 2550 Hanover Street
Palo Alto, California 94304 Palo Alto, California 94304
(650) 493-9300 (650) 233-4500
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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, 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,
check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall hereafter 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 such Section 8(a),
may determine.
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- --------------------------------------------------------------------------------
<PAGE>
Explanatory Note
The purpose of this Amendment No. 6 is solely to file exhibits to the
registration statement as set forth below in Item 16(a) of Part II.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Certificate of Incorporation of the Registrant.
3.2** Bylaws of the Registrant.
3.3** Form of Amended and Restated Certificate of Incorporation of
Registrant.
3.4** Form of Amended and Restated Bylaws of Registrant.
3.5** Certificates of Designation of Registrant relating to Series A
Preferred Stock.
3.6** Certificates of Designation of Registrant relating to Series B
Preferred Stock.
3.7** Certificate of Designation of Registrant relating to Series C
Preferred Stock.
3.8** Amendment to Certificate of Incorporation of the Registrant.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and each of
its directors and officers.
10.2** 1999 Stock Plan and form of agreements thereunder.
10.3** 1999 Employee Stock Purchase Plan and form of agreements thereunder.
10.4** 1999 Director Option Plan and form of agreements thereunder.
10.5** 1996 Stock Option and Restricted Stock Plan.
10.6** 1996 Non-Employee Director Stock Option Plan.
10.7** Second Amended and Restated Investors Rights Agreement.
10.8** Employment Agreement, dated March 29, 1996, between Registrant and
Nicole Ward (Eagan).
10.9** Employment Agreement, dated May 13, 1996, between Registrant and
Martin Pagel.
10.10** Employment Agreement, dated July 27, 1996, between Registrant and
Thomas Reinemer.
10.11** Promissory Note, dated May 30, 1999, between Registrant and Robert H.
Ewald.
10.12** Crypto iButton Service Provider Agreement dated August 21, 1998,
between Registrant and Dallas Semiconductor Corporation.
10.13+** Premium Partner Website Marketing Agreement dated July 1, 1999,
between Registrant and Microsoft Corporation.
10.14+** America Online Strategic Marketing Agreement dated November 13, 1998,
between Registrant and America Online.
10.15** Turnkey/Inventory Agreement dated June 1, 1999, between Registrant
and Modus Media International.
10.16+ Agreement for Services dated June 27, 1997 between Registrant and
Pilot Network Services, Inc.
10.17** Sublease Agreement dated February 2, 1999 between the Registrant and
Electronics for Imaging, Inc.
10.18+ Advertising and Promotion Agreement dated May 14, 1999 between
Registrant and Yahoo!, Inc.
10.19+** Letter Agreement dated August 2, 1999 between Registrant and At Home
Corporation.
10.20+** Platinum Premier Partner Package Agreement dated June 25, 1999
between Registrant, EarthLink Network, Inc. and EarthLink Operations,
Inc.
10.21+ Services Agreement dated September 24, 1999 between Registrant and
Intuit Inc.
23.1** Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation. (see Exhibit 5.1).
23.2** Consent of Ernst & Young LLP, Independent Auditors.
23.3** Consent of Howrey & Simon.
23.4** Consent of Rebecca Saeger.
24.1** Power of Attorney.
27.1** Financial Data Schedules.
</TABLE>
- ---------------------
** Previously filed.
+ The registrant is seeking confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
II-4
<PAGE>
(b) Financial Statement Schedules
Schedules not listed above 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of San Mateo, State of California, on the 8th day of October, 1999.
E-STAMP CORPORATION
/s/ Robert H. Ewald
By: _________________________________
Robert H. Ewald
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert H. Ewald President, Chief Executive October 8, 1999
____________________________________ Officer and Director
Robert H. Ewald (Principal Executive
Officer)
/s/ Anthony H. Lewis, Jr. Vice President and Chief October 8, 1999
____________________________________ Financial Officer
Anthony H. Lewis, Jr. (Principal Financial and
Accounting Officer)
* Chairman of the Board October 8, 1999
____________________________________
Marcelo A. Gumucio
* Director October 8, 1999
____________________________________
John V. Balen
* Director October 8, 1999
____________________________________
Thomas L. Rosch
* Director October 8, 1999
____________________________________
Gregory S. Stanger
* Director October 8, 1999
____________________________________
Adam Wagner
Director October 8, 1999
____________________________________
Rebecca Saeger
</TABLE>
/s/ Robert H. Ewald
*By: __________________________
Robert H. Ewald Attorney-in-
Fact
II-6
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Certificate of Incorporation of the Registrant.
3.2** Bylaws of the Registrant.
3.3** Form of Amended and Restated Certificate of Incorporation of
Registrant.
3.4** Form of Amended and Restated Bylaws of Registrant.
3.5** Certificates of Designation of Registrant relating to Series A
Preferred Stock.
3.6** Certificates of Designation of Registrant relating to Series B
Preferred Stock.
3.7** Certificate of Designation of Registrant relating to Series C
Preferred Stock.
3.8** Amendment to Certificate of Incorporation of the Registrant.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and each of
its directors and officers.
10.2** 1999 Stock Plan and form of agreements thereunder.
10.3** 1999 Employee Stock Purchase Plan and form of agreements thereunder.
10.4** 1999 Director Option Plan and form of agreements thereunder.
10.5** 1996 Stock Option and Restricted Stock Plan.
10.6** 1996 Non-Employee Director Stock Option Plan.
10.7** Second Amended and Restated Investors Rights Agreement.
10.8** Employment Agreement, dated March 29, 1996, between Registrant and
Nicole Ward (Eagan).
10.9** Employment Agreement, dated May 13, 1996, between Registrant and
Martin Pagel.
10.10** Employment Agreement, dated July 27, 1996, between Registrant and
Thomas Reinemer.
10.11** Promissory Note, dated May 30, 1999, between Registrant and Robert H.
Ewald.
10.12** Crypto iButton Service Provider Agreement dated August 21, 1998,
between Registrant and Dallas Semiconductor Corporation.
10.13+** Premium Partner Website Marketing Agreement dated July 1, 1999,
between Registrant and Microsoft Corporation.
10.14+** America Online Strategic Marketing Agreement dated November 13, 1998,
between Registrant and America Online.
10.15** Turnkey/Inventory Agreement dated June 1, 1999, between Registrant
and Modus Media International.
10.16+ Agreement for Services dated June 27, 1997 between Registrant and
Pilot Network Services, Inc.
10.17** Sublease Agreement dated February 2, 1999 between the Registrant and
Electronics for Imaging, Inc.
10.18+ Advertising and Promotion Agreement dated May 14, 1999 between
Registrant and Yahoo!, Inc.
10.19+** Letter Agreement dated August 2, 1999 between Registrant and At Home
Corporation.
10.20+** Platinum Premier Partner Package Agreement dated June 25, 1999
between Registrant, EarthLink Network, Inc. and EarthLink Operations,
Inc.
10.21+ Services Agreement dated September 24, 1999 between Registrant and
Intuit Inc.
23.1** Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation. (see Exhibit 5.1).
23.2** Consent of Ernst & Young LLP, Independent Auditors.
23.3** Consent of Howrey & Simon.
23.4** Consent of Rebecca Saeger.
24.1** Power of Attorney.
27.1** Financial Data Schedules.
</TABLE>
- ---------------------
** Previously filed.
+ The registrant is seeking confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
<PAGE>
EXHIBIT 10.16
AGREEMENT FOR SERVICES
This Agreement is made and entered into as of June 27, 1997 ("Effective Date")
by and between E-Stamp ("Customer") and Pilot Network Services, Inc. ("Pilot").
1. Term of Agreement. Unless earlier terminated as provided in this
Agreement, the term of this Agreement will commence on the Effective Date and
will continue for a period of 12 months, and shall be automatically renewed for
successive one-year terms thereafter.
2. Services to be provided by Pilot.
(a) Pilot agrees to provide the services set forth on the attached
Schedule(s).
(b) The services set forth in this Section 2 will be provided to
Customer at rates and charges as indicated on the attached Schedule(s); provided
Pilot shall have the right to change the rates and charges to be charged for
such services by notifying Customer 90 days in advance of the effective date of
the change.
(c) Customer represents and warrants that Pilot's services will only
be used for lawful purposes. Customer understands that transmission of any
material in violation of any U.S., state, local or foreign laws or regulations
is prohibited. This includes, but is not limited to; copyrighted material,
threatening or obscene material, or material protected by trade secret. Customer
agrees to indemnify Pilot from any costs, damages, fees and expenses incurred by
Pilot which are attributable to the use of Pilot's services by Customer.
Customer will indemnify Pilot for costs and expenses related to third party
claims, provided that Pilot: (1) notifies Customer promptly in writing of the
claim and (2) permits Customer to defend, compromise or settle the claim in a
manner not adverse to Pilot and provides on a reasonable basis information,
assistance and authority to enable Customer to do so. Customer agrees to
reimburse Pilot's reasonable expenses and attorney's fees on an as-incurred
basis for such activity. Pilot shall have no authority to settle any claim on
behalf of Customer. THIS SECTION AND SECTION 4 STATE THE ENTIRE LIABILITY OF
CUSTOMER AND PILOT WITH RESPECT TO THE SERVICES PROVIDED BY PILOT TO CUSTOMER
UNDER THIS AGREEMENT, AND NEITHER CUSTOMER NOR PILOT SHALL HAVE ANY ADDITIONAL
LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT OR UNLAWFUL
ACTIVITY.
3. Term of Payment. The Implementation Charge set forth on the attached
Schedule(s) shall be payable in two equal monthly installments commencing on the
Effective Date. The Monthly Service Charges will be payable by the Customer
commencing sixty days after the Effective Date. Pilot will submit to Customer an
invoice for services provided at the beginning of each monthly period payable
upon receipt of invoice. A monthly service charge of 1.5% of the unpaid balance
will be payable on past due balances.
4. Limitation of Liability. The parties agree that: (i) Pilot exercises
no control and has no responsibility whatsoever over the content of information
transmitted by use of Pilot's services, (ii) Pilot is not responsible for the
accuracy or quality of such information, (iii) use of such information is at
Customer's own risk, and (iv) this is not a contract for the sale of goods and,
therefore, is not subject to the Uniform Commercial Code. Pilot warrants that it
has the right and power to enter into this Agreement and that it will provide
the services specified in this Agreement in a workmanlike and professional
manner. IN ALL OTHER RESPECTS, NO REPRESENTATIONS AND WARRANTIES (WRITTEN OR
ORAL) HAVE BEEN MADE BY THE PARTIES. THE SERVICES ARE PROVIDED "AS IS" AND PILOT
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE
SERVICES IT IS PROVIDING, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Pilot makes no guarantees
with respect to the services rendered under this Agreement and Pilot shall have
no liability as a result of Pilot's performance of this Agreement, including,
without limitation, interrupted service, unauthorized access by a third party,
errors or delays in transmission, loss of data or failure to meet Customer's
requirements. Without limiting the foregoing, Pilot's entire liability under,
for breach of, arising under, or related to this Agreement or the services to be
provided hereunder (whether in tort, contract or any other theory), shall not
exceed the aggregate charges for services rendered for
<PAGE>
the prior twelve months under this Agreement that gave rise to such liability.
In no event shall either party be liable for indirect, exemplary, special,
incidental or consequential damages, or costs, including but not limited to, any
lost profits or revenues, loss of use or goodwill, or any third party claims,
even if such party has been advised of the possibility of such damages.
5. Termination. Either party may terminate this Agreement without penalty
upon ninety (90) days advance written notice to the other party prior to the end
of the initial, or any successive, twelve (12) month periods. In addition,
Customer agrees that Pilot, at its option, may either terminate this Agreement
upon thirty (30) days written notice to Customer, or suspend all services to
Customer, if any amount due for services rendered under this Agreement is
outstanding according to terms specified in Section 3 unless Customer remedies
the problem within such thirty (30) day period. Either party may terminate this
Agreement if the other party is in material breach of this Agreement and has not
cured the breach within thirty (30) days of written notice specifying the
breach. Termination of this Agreement shall result in any and all balances past
due becoming immediately due and payable.
6. General Provisions.
(a) The term "Agreement" as used herein will include any future
written amendments, modifications, or supplements made hereto,
provided, however, that no amendments, modifications or
supplements to this Agreement shall be deemed valid unless signed
by authorized representatives of both parties and expressly
referencing this Agreement. No representation or statement not
expressly contained in this Agreement or, except as set forth in
Section 2(b) hereof, in any written, signed amendment hereto
shall be binding upon Pilot or Customer.
(b) This Agreement may not be assigned by Customer without the prior
written consent of Pilot.
(c) If any of the provisions are invalid under any applicable statute
or rule of law, such provisions are to that extent to be deemed
omitted and the remaining provisions of this Agreement will
remain in full force and effect.
(d) In the event suit is commenced to collect any amounts owing
hereunder, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs of suit.
(e) The Agreement constitutes the complete Agreement between the
parties and supersedes all previous representations,
understandings or agreements and shall prevail notwithstanding
any variance with terms and conditions of any proposal submitted.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of California, regardless of its
choice of law provisions.
(g) Any legal action or proceeding relating to this Agreement shall
be instituted in any state or federal court in San Francisco or
Alameda County, California. Pilot and Customer agree to submit to
the jurisdiction of, and agree that venue is proper in, the
aforesaid courts in any such legal action or proceeding.
(h) All notices, including notices of address change, required to be
sent hereunder shall be in writing and deemed given when
delivered by personal delivery, telegram, facsimile, telecopier,
courier service or registered mail to the addresses listed on the
signature page, or such other address that a party may specify.
(i) Pilot shall not be in default or otherwise liable for any delay
in or failure of its performance under this Agreement where such
delay or failure arises by reason of any Act of God, or any
government
-2-
<PAGE>
or any governmental body, acts of war, the elements, strikes or
labor disputes, or other cause beyond the control of Pilot.
(j) Customer agrees to comply with all applicable United States
export control laws and regulations, including without
limitation, the laws and regulations administered by the United
States Department of Commerce and the United States Department of
State.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS.
CUSTOMER: E-Stamp PILOT NETWORK SERVICES, INC.
-----------------
By: /s/ T. Reinemer By: /s/ Marketta Silvera
----------------------- ------------------------------
Name: T. Reinemer Name: Marketta Silvera
--------------------- ----------------------------
Title: VP Operations Title: CEO
-------------------- ---------------------------
Address: 4009 Miranda Ave. Address: 1080 Marina Village Parkway
------------------ Alameda, California 94501
Palo Alto, CA 94304
- ---------------------------
Agreement only valid in
conjunction with attached
Amendment.
-3-
<PAGE>
Amendment To Agreement For Services Between
Pilot Network Services and
E-Stamp Corporation
1. Section 3. Term of Payment, change the 3rd sentence to read:
Pilot will submit to Customer an invoice for services provided at the beginning
of each monthly period payable within thirty (30) days of receipt of invoice.
2. Add the following to Section 5, Termination:
In the future, should Pilot elect not to provide Secure Web Hosting Services on
NT platform, Customer has the right to terminate this Agreement upon thirty
(30) days written notice to Pilot, providing that NT hosting at a Pilot
Service Center is a Customer requirement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS ADDENDUM, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS.
E-Stamp Corporation Pilot Network Services, Inc.
By: /s/ T. Reinemer By: /s/ Marketta Silvera
------------------------- --------------------------
Name & Title: Reinemer VP-Ops. Name & Title: CEO
---------------- -----------------
Date: June 27, 1997 Date:
------------------------ -------------------------
<PAGE>
1. Charges
1.1. [***] Secure Internet Service via Pilot's [***]
One-Time Setup Charge: $ 6,000
Monthly Charge: $ 4,000
Included Services:
. Procure, provision and install:
- T-1 line connecting Customer to Pilot
- Routers and CSU/DSUs
. Manage all Domain Name registrations with InterNIC:
- Host and Name Server registration or re-registration (InterNIC
registration fees passed through to the Customer)
. Establish Internet connectivity and access to all generic
Internet services
. Configure and deploy Pilot's [***]
- Customize Pilot [***] to implement Customer security policies
- Sanitize all [***] for security and auditing purposes
- Establish a secure, fortified email gateway
- Set up external fortified [***] service at Pilot Service
Center
- Install and integrate security monitoring tools into the
firewall
- Install and integrate logging mechanisms into the firewall
- Install and integrate Pilot Traffic Profile(TM) Reporting
System into firewall
- Setup and test tape backup systems
- Provide hot spares for immediate swap-out in event of server
failure
. Administration and management of Pilot's [***]
- Apply security patches, fix bugs and/or provide workarounds
- Maintain all equipment and software, including upgrades
- Maintain fortified email gateway and external [***] service
- Execute daily incremental and full weekly backups with offsite
tape storage
- Provide online access to Pilot Traffic Profile(TM) Reports
for authorized viewing
- Log, document and submit intrusion attempt reports
. Provide Internet access to Customer-maintained or Pilot-Hosted
server(s)
. Provide NNTP Newsfeed to Customer-maintained (or Pilot-Hosted)
News:
Charges are based on initial twelve-month commitment. Customer will be
invoiced for setup charges in two equal monthly installments
commencing on the effective date. Monthly service charges will become
due and payable sixty days after the effective date. This quotation
is valid for thirty (30) days beginning May 23, 1997.
Charges for this service shall not commence until such time that the customer
notifies to begin the installation process. Customer agrees to provide
notification 45 day before E-Stamp beta test starts.
Approved: /s/ T.J. Reinemer
---------------------------
(signature)
Name: T.J. Reinemer
---------------------------
(please print)
Title: VP- Operations
--------------------------
(please print)
Date: 27-June-97
---------------------------
(please print)
Standard prices for Secure Internet Services are $12,000 One-Time Setup Charge
and $5,000 Monthly Charge. Special prices quoted apply only if ordered in
conjunction with E-fill application and database hosting R&D -- and marketing
site web hosting services. Standard service charges will apply if ordered
separately.
NOTIFICATION TO BEGIN THE INSTALLATION PROCESS WILL BE FORTHCOMING NOT LATER
THAN 9/30/97, UNLESS THE U.S. POSTAL SERVICE DENIES THE APPROVAL FOR THIS
PROJECT WITH E-STAMP OR CAUSES OTHER UNFORESEEN DELAYS.
/s/ [T.J.R.] 30-June-97 /s/ [ILLEGIBLE] /s/ [ILLEGIBLE] 6/30/97
*** 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>
1.2. Marketing World-Wide Web (WWW) Server Hosting*
Additional One-Time Setup Charge: $6,000
Additional Monthly Charge: $ 500
Included Services:
. Create Marketing Web server:
- Procure dedicated Web server and tape backup system
- Configure server with the OS and Web Server & Sequel
software
- Sanitize the [***] for security and auditing purposes
- Register under Customer domain (e.g., www.estamp.com)
- Integrate Web server into Pilot's [***]
- Install and integrate security monitoring tools into the
server
- Install and integrate logging mechanisms into the server
- Install and integrate Pilot Traffic Profile Reporting
System(TM) into server
- Setup and test tape backup system
- Configure and deploy Pilot's proprietary system for
securely and automatically updating Web content
- Supply [***] of storage for Customer content (upgradable)
- Provide hot spares for immediate swap-out in event of
server failure
. Administration and management of Web server:
- Apply security patches, fix bugs and/or provide
workarounds
- Support of authenticated mechanism for content updates
- Execute daily incremental and full weekly backups with
offsite tape storage
- Maintain all equipment and software, including upgrades
- Provide online access to Pilot Traffic Profile
Reports(TM)
Charges are based on initial twelve-month commitment. Customer
will be invoiced for setup charges in two equal monthly
installments commencing on the effective date. Monthly service
charges will become due and payable sixty days after the
effective date. This quotation is valid for thirty (30) days
beginning May 23, 1997.
Approved: T.J. Reinemer
---------------------
(signature)
Name: T.J. Reinemer
---------------------
(please print)
Title: VP - Operation
---------------------
(please print)
Date: 27-June-97
---------------------
(please print)
Customer will provide all the software necessary to host the Web server. If
additional third-party software is to be installed and supported, the software
must be mutually agreed upon in advance between Pilot and the Customer such an
addition could affect pricing for services.
*** 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>
Secure Commerce Web Server Hosting and NT R&D Project*
One-Time Setup Charge: $6,000
Monthly Charge: $3,500
Included Services:
. Install and deploy Customer-provided dedicated E-fill application
and database servers and tape backup systems
- Install customer-provided servers (primary and backup) and
RAID 5 with the OS, application and database server software
- Sanitize the [***]for security and auditing purposes
- Integrate servers into Pilot's [***]
- Install and integrate security monitoring tools into the
servers
- Install and integrate logging mechanisms into the servers
- Position E-fill servers on dedicated [***] Ethernet network
segment within Pilot Service Center
- Setup and test tape backup system
. Administration and management of E-fill and database servers:
- Apply security patches, fix bugs and/or provide workarounds
- Support authenticated process for content updates &
synchronization
- Perform regular backups of servers, including offsite storage
of tapes
- Provide access to authorized agents for equipment maintenance
- Maintain software, including performing upgrades
- Provide uptime monitoring of the servers
- Perform database index maintenance
. Research security requirements of services hosted on the NT
platform:
- Protection techniques to guard against denial-of-service
attacks
- Protection techniques to guard against unauthorized server
access
- Deployability of O/S configuration to multiple machines
- Integration into the Pilot [***]
- Porting, monitoring and other utilities
- Provide written report of conclusions at 3 and 6 month
milestones
. Log, document, and submit intrusion-attempt reports to Customer
The monthly charge is based on an initial six-month commitment to the
service and is due at the beginning of each month. One-time setup fees
are due and payable in advance. This quotation is valid for thirty
(30) days beginning May 23, 1997 and anticipates that services will be
installed within 90 days of order.
Charges for this service shall not commence until such time that the customer
notifies Pilot to begin installation process. Customer agrees to provide
notification 45 days before E-Stamp beta tests starts.
Approved: /s/ T.J. Reinemer
-----------------------
(signature)
Name: T.J. Reinemer
-----------------------
(please print)
Title: VP-Operations
-----------------------
(please print)
Date: 27-June-97
-----------------------
(please print)
If additional third-party software is required to be installed and supported,
the software must be mutually agreed upon in advance between Pilot and the
Customer and pricing for services and support could potentially be affected.
NOTIFICATION TO BEGIN THE INSTALLATION PROCESS WILL BE FORTHCOMING NOT LATER
THAN 9/30/97, UNLESS THE U.S. POSTAL SERVICE DENIES THE APPROVAL FOR THIS
PROJECT WITH E-STAMP OR CAUSES UNFORESEEN DELAYS.
/s/ [T.J.R.] 30-June-97 /s/ [ILLEGIBLE] /s/ [ILLEGIBLE] 6/30/97
*** 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>
Exhibit 10.18
ADVERTISING AND PROMOTION AGREEMENT
THIS ADVERTISING AND PROMOTION AGREEMENT (the "Agreement") is made this 14
---------
day of May, 1999 (the "Effective Date") between YAHOO!, INC., a California
--------------
corporation, with offices at 3420 Central Expressway, Santa Clara, CA 95051,
("YAHOO") and E-Stamp Corporation, ("Advertiser"), a Delaware corporation, with
----------
offices at 2855 Campus Drive, San Mateo, California, 94403.
In consideration of the mutual promises contained herein, the parties agree
as follows:
SECTION 1: DEFINITIONS
- -------------------------
The following terms are used in this Agreement with the respective meanings set
forth below:
"Advertiser Brand Features" shall mean Advertiser's trademarks, service
-------------------------
marks, logos and other distinctive brand features of Advertiser.
"Advertiser Competitor" shall mean a company or a division of a company
---------------------
primarily in the business of selling U.S. electronic postage or U.S. electronic
postage software. The agreed upon list of such companies at the Effective Date
is as follows: Stamps.com, Pitney Bowes and Neopost. In the event Advertiser
Competitor is acquired by another company which is not an Advertiser Competitor,
the acquiring company, or the division of such company that assumes the business
of Advertiser Competitor, shall be considered Advertiser Competitor, provided
such company or division is primarily in the business of selling U.S. electronic
postage or U.S. electronic postage software. From time to time, but no more than
one time per calendar quarter, Advertiser may request additions to this list of
Advertiser Competitors of certain companies that receive PC postage
certification from the USPS. Such companies shall be included as Advertiser
Competitors upon Yahoo approval, which shall not be unreasonably withheld,
provided that Yahoo may honor any agreements with such newly designated
Advertiser Competitors entered into prior to such designation.
"Advertiser Links" shall mean the hyperlinks placed by Yahoo in connection
----------------
with this Agreement including but not limited to those links described on
Exhibit A. For the avoidance of doubt, Advertiser Links includes hyperlinks to
- ---------
Advertiser Site embedded in Yahoo Delivers email and the EZ Venture Program,
placed in connection with this Agreement.
"Advertiser Site" shall mean the web site owned and operated by, or on
---------------
behalf of, Advertiser dedicated to the sale of electronic postage services or
software and currently located at http://www.estamp.com.
--------------
"Affiliate" shall mean any entity controlled by, controlling, or under
---------
common control with a party hereto but only for so long as such control exists,
where "control" means ownership of more than fifty percent of the equity
-------
entitled to vote in the election of directors or if not a corporation, the
corresponding managing authority.
1
<PAGE>
"Click-through" shall mean the initiation of a user presence at the
-------------
Advertiser Site that originated from an Advertiser Link as recorded by Yahoo's
advertiser reporting system.
"EZ Venture Promotion" shall mean that Yahoo promotional program, the
--------------------
specifications of which are attached as Exhibit E hereof.
"Included Pages" shall mean those pages on the Yahoo Properties containing
--------------
Advertiser Links. Included Pages includes EZ Venture Promotion pages containing
Advertiser Links but excludes Yahoo Direct email messages delivered by Yahoo in
connection with this Agreement.
"Jump Page" shall mean the page of the Advertiser Site dedicated to the
---------
promotion of electronic postage services or software which is the first page a
user sees when clicking on an Advertiser Link (other than a Promotion Link) and
which includes an application for a user to sign up for such services or a
direct hyperlink to such application.
"Launch Date" shall mean the date on which the program described herein is
-----------
launched and by which Advertiser Site is Fully Operational (as defined in
Section 5.3 hereof), which date is originally scheduled as July 15, 1999.
"Promotion Link" shall mean a front page graphic link which: (a) contains
--------------
Advertiser brand features, (b) has dimensions no larger than 230 pixels wide by
33 pixels high, (c) may contain animation of up to 6 seconds with no looping,
(d) has a maximum file size of three (3) kilobytes, (e) conforms to Yahoo's
promotional specifications and guidelines, which may be amended by Yahoo from
time-to-time, and (f) links to a promotional Jump Page.
"Yahoo Brand Features" shall mean Yahoo's trademarks, service marks, logos
--------------------
and other distinctive brand features of Yahoo.
"Yahoo Post Office" shall mean a Yahoo Property, under the editorial
-----------------
control of Yahoo, dedicated to postal content and services.
"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to the
---------------
World Wide Web currently located at http://www.yahoo.com.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media
----------------
properties, including, without limitation, global Internet guides that are
developed in whole or in part by Yahoo or its Affiliates. A description of
certain applicable Yahoo Properties can be found on Exhibit A.
---------
SECTION 2: THE PROGRAM
- -------------------------
2.1 Program Elements. Yahoo shall make available a program comprised of
the elements set forth in this Section 2.1 (the "Program")
(a) Advertiser Links. During the Term of the Agreement Yahoo shall
----------------
place the Advertiser Links as specified on Exhibit A.
Notwithstanding the foregoing, Yahoo reserves the right, at its
sole discretion, to remove keywords and category pages set forth
in Exhibit A, which it reasonably believes are trademarks,
tradenames, product names or brand names belonging to an entity
not party to this Agreement, and substitute such words with
similar
2
<PAGE>
inventory. The Yahoo Post Office shall be launched by Yahoo by
the Launch Date or July 15, 1999, whichever is later. Yahoo may
launch the Yahoo Post Office prior to such date provided the
exclusivity provisions of Section 6.3 shall still apply.
(b) Front Page Promotions. During the Term, Yahoo shall include
----------------------
Advertiser in one multi-sponsor promotion on the Front Page of
the Yahoo Main Site. Such front page promotion shall (i) be
subject to available inventory, it being understood and agreed
that the promotion will be scheduled as close to the Launch Date
as possible, (ii) continue for at least one week, and (iii) be
conducted in accordance with Yahoo's then current standard
policies and procedures for promotions (including but not limited
to those policies pertaining to user information) and applicable
law. Yahoo shall place a Promotion Link on the Front Page in
connection with such promotion.
(c) EZ Venture Promotion. Commencing after the Launch Date and
---------------------
continuing to the extent possible through Period 1 (as defined in
Section 2.3 below), Yahoo shall include Advertiser in an EZ
Venture Promotion.
(d) Yahoo Delivers. During Period 1 (as defined in Section 2.3
---------------
below), Yahoo will send a total of [***] emails to Yahoo users
that have opted to participate in the receipt of emails as part
of the registration process for Yahoo. Such emails will be
targeted and contain content as mutually agreed to by the
parties. The email will comply with the guidelines and
specifications provided in Exhibit A.
2.2 Advertiser Link Requirements. As requested by Yahoo from time to time,
----------------------------
Advertiser shall execute the standard Yahoo insertion order set forth in
Exhibit C in connection with all Advertiser Links for administrative
purposes only. The standard terms and conditions generally attached to such
insertion order shall not apply. Advertiser shall provide all materials for
the Advertiser Links in accordance with Yahoo's policies in effect from
time to time regarding (i) the manner of transmission to Yahoo, (ii) the
lead-time prior to publication, (iii) content/creative and (iv) promotions.
Such policies may be found at www.yahoo.com/docs/advertising and the
------------------------------
current version of the most relevant such policies are attached as Exhibit
F. Yahoo shall not be required to publish any Advertiser Link that is not
received in accordance with such policies. All contents of Advertiser Links
are subject to Yahoo's approval. Yahoo reserves the right to reject or
cancel any Advertiser Link, at any time, for any reason whatsoever
(including belief by Yahoo that placement of Advertiser Link may subject
Yahoo to criminal or civil liability). In the event of such cancellation,
and provided Advertiser is not otherwise in breach of this Agreement, Yahoo
shall work with Advertiser to promptly replace such Advertiser Link with an
acceptable Advertiser Link. All Advertiser Links provided by Advertiser
must be in compliance with and contain all disclosures required by all
applicable U.S. federal, state and local laws, rules and regulations,
including, without limitation, consumer protection laws and rules and
regulations governing product claims, truth in labeling, and false
advertising.
[***] 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>
2.3 Performance Guarantees. During the Term and subject to Section 5.3
----------------------
hereof: (a) Yahoo shall deliver a minimum of [***] page views of the
Included Pages, ("Total Page Views") and shall use reasonable efforts to
deliver such Total Page Views in accordance with the following schedule:
(5/14/99 - 12/31/99, "Period 1")(1/1/00-6/30/00) ("Period 2")
- -------------------------------------------------------------
[***]% ([***] page views) [***]% ([***] page views)
(7/1/00-12/31/00) ("Period 3")
- ------------------------------
[***]% ([***] page views)
(includes all EZ Venture clicks)
In the event Yahoo fails to deliver the percentage of the Total Page Views
required during Period 1 or 2, Yahoo will "make good" the shortfall during
the following period, and in the event the failure occurs with respect to
Period 3, Yahoo will "make good" the shortfall during the six month period
following the expiration of Period 3.
(b) Yahoo shall deliver page views of the various Advertiser Links in the
quantities provided in Exhibit A.
(c) Yahoo shall deliver [***] page views of the Promotion Link in
connection with the Promotion provided in accordance with Section 2.1(b)
(d) Yahoo shall deliver [***] clicks to an offer page in connection with
the EZ Venture Promotion provided in accordance with Section 2.1(c).
(e) Yahoo shall deliver [***] emails in accordance with Section 2.1(d)
during Period 1.
(f) In the event, by the end of the Term, Yahoo fails to deliver (i) the
Total Page Views under Section 2.3(a), (ii) the page views provided in
Sections 2.3(b) and 2.3(c), (iii) the clicks provided in Section 2.3(d), or
(iv) the Yahoo Delivers email messages provided in Section 2.3(e), Yahoo
will "make good" the shortfall by extending its obligations in similar
areas and placement as those described in Section 2.3, as mutually agreed
upon, beyond the end of the Term until such obligations are satisfied. This
section 2.3 sets forth the entire liability of Yahoo, and Advertiser's sole
remedy for Yahoo's breach of its obligations under Section 2.1 or Yahoo's
failure to deliver the number of page views described in this Sections 2.3.
2.4 Delivery Statistics. Delivery statistics provided by Yahoo are the
-------------------
official, definitive measurements of Yahoo's performance of its delivery
obligations hereunder (or under any related insertion order). No other such
statistics (including any provided by Advertiser or a third party ad
server) shall be accepted by Yahoo. Yahoo represents that the process and
technology used to generate such statistics have been certified and audited
by an independent agency.
SECTION 3: COMPENSATION
------------
[***] 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>
3.1 Slotting Fee and Holding Fee. Advertiser shall pay Yahoo a non-
----------------------------
refundable slotting fee of three million three hundred thousand dollars
($3,300,000) and a non-refundable, non-creditable holding fee of seven
hundred thousand dollars ($700,000) as set forth below. Except for the
first two payments which shall be made on the dates set forth below, such
amounts shall be paid to Yahoo within thirty (30) days after receipt of
invoice submitted in accordance with Section 3.2 below but no earlier than
the dates set forth below.
<TABLE>
<CAPTION>
<S> <C>
Upon signing of the Agreement: $500,000
May 14, 1999 $ 20,000
July 1, 1999 $280,000
September 15, 1999 $520,000
December 15, 1999 $670,000
March 15, 2000 $670,000
June 15, 2000 $670,000
September 15, 2000 $670,000
</TABLE>
The first seven hundred thousand dollars ($700,000) to be paid are
designated as a holding fee for the Program ("Holding Fee"). The Holding
Fee shall be earned by Yahoo as follows:
<TABLE>
<CAPTION>
<S> <C>
May 14, 1999 -- May 31, 1999 $ 76,000
June 1, 1999 -- June 30, 1999 $156,000
July 1, 1999 - July 31, 1999 $156,000
August 1, 1999 -- August 31, 1999 $156,000
September 1, 1999 -- September 30, 1999 $156,000
</TABLE>
If the Launch Date occurs prior to September 30, 1999, the number of days
between the Launch Date and September 30, 1999 shall be calculated. The
portion of the Holding Fee corresponding to this number of days (according
to the schedule above) shall be applied as an additional slotting fee. The
remaining $3,300,000 of the slotting fee shall be creditable only in
connection with Section 5.3(d).
3.2 Payment Information. Except for the first two payments, Yahoo shall
-------------------
submit invoices to Advertiser thirty (30) days prior to the date of payment
set forth above. All scheduled payments pursuant to Sections 3.1 above
shall be made by Advertiser via wire transfer into Yahoo's main account
pursuant to the wire transfer instructions set forth on Exhibit D. All
payments to Yahoo shall be exclusive of sales, use or value-added taxes
(other than taxes based on Yahoo's net income), which taxes shall be the
sole responsibility of Advertiser.
3.3 Late Payments. Any portion of the above payments which has not been
-------------
paid to Yahoo on the dates set forth above shall bear interest at the
lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum
amount allowed by law.
SECTION 4: INDEMNIFICATION
- --------------------------
5
<PAGE>
4.1 Advertiser Indemnification. Advertiser, at its own expense, will
--------------------------
indemnify, defend and hold harmless Yahoo and its employees,
representatives, agents and Affiliates, against any claim, suit, action, or
other proceeding brought against Yahoo based on or arising from a claim
that any Advertiser Brand Feature, content, material, product, information,
software data or service produced, distributed, offered or provided by
Advertiser, including, without limitation, the distribution of postage, or
any material presented on any site on the Internet produced, maintained, or
published by Advertiser, infringes in any manner any copyright, patent,
trademark, trade secret or any other intellectual property right of any
third party, is or contains any material or information that is obscene,
defamatory, libelous, slanderous, or that violates any law or regulation,
is negligently performed, or otherwise violates or breaches any duty
toward, or rights of any person or entity, including, without limitation,
rights of publicity, privacy or personality, or has otherwise resulted in
any consumer fraud, product liability, tort, breach of contract, injury,
damage or harm of any kind to any person or entity; provided, however, that
in any such case: (x) Yahoo provides Advertiser with prompt notice of any
such claim, (y)Yahoo permits Advertiser to assume and control the defense
of such action upon Advertiser's written acknowledgment of the obligation
to indemnify and (z) upon Advertiser's written request, and at no expense
to Yahoo, Yahoo will provide to Advertiser all available information and
assistance necessary for Advertiser to defend such claim. Advertiser will
not enter into any settlement or compromise of any such claim without
Yahoo's prior written consent, which shall not be unreasonably withheld.
Advertiser will pay any and all costs, damages, and expenses, including,
but not limited to, reasonable attorneys' fees and costs awarded against or
otherwise incurred by Yahoo in connection with or arising from any such
claim, suit, action or proceeding. The aforementioned indemnification shall
not apply to the extent such claims (i) are not somehow related to this
Agreement, (ii) have occurred as a result of Yahoo breaching its
obligations under this Agreement or (iii) have occurred as a result of
Yahoo modifying, without Advertiser authorization, Advertiser materials
provided by Advertiser pursuant to this Agreement.
4.2 Limitation of Liability.
-----------------------
EXCEPT AS PROVIDED IN THIS SECTION 4, UNDER NO CIRCUMSTANCES SHALL
ADVERTISER, YAHOO, OR ANY AFFILIATE BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING
FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS.
SECTION 5: TERM AND TERMINATION
- -------------------------------
5.1 Term and Renewals. The Term of this Agreement shall commence on May 14,
-----------------
1999 and expire on December 31, 2000, unless earlier terminated as provided
in this Agreement.
6
<PAGE>
5.2 Termination for Cause. This Agreement may be terminated at any time by
----------------------
either party: (i) immediately upon written notice if the other party: (a)
is declared insolvent by an administrative party; (b) files a petition in
bankruptcy; or (c) makes an assignment for the benefit of its creditors; or
(ii) upon the expiration of thirty (30) days after written notice to the
other party of such other party's breach of any of its obligations under
this Agreement in any material respect (ten (10) days in the case of a
failure to pay), which breach is not remedied within such thirty (30) or
ten (10) day period as applicable. Failure to make payments as set forth
herein shall be deemed a material breach of this Agreement giving rise to
the notice and cure provisions set forth above and the right by Yahoo to
suspend performance hereunder until such breach is cured. Any termination
pursuant to Section 5.2 shall be without any liability or obligation of the
terminating party, other than with respect to any breach of this Agreement
prior to termination. For the avoidance of doubt, if this Agreement is
terminated by Advertiser for Yahoo's breach, Advertiser shall have no
obligation to make any payments payable after the date of termination.
However, Slotting Fee payments made prior to the date of termination
representing page views not delivered or foregone (as calculated on a daily
basis per the schedule provided in 2.3(a)) shall not be refunded, but shall
be creditable against Advertiser's future placements of advertising,
promotions, email deliveries, hyperlinks and any other related services
made available by Yahoo to third parties or Advertiser from time to time
based on availability and then current rates ). The first $200,000 of any
such credits must be applied by June 30, 2000 and any remaining credits
must be applied prior to December 31, 2000.
5.3 Pro-ration Periods.
------------------
(a) First Pro-ration Period. This Agreement is being executed with
-----------------------
the understanding that by July 15, 1999, Advertiser shall have
secured the appropriate clearances and licenses in the United
States to legally sell electronic postage and electronic postage
software ("USPS PC Postage Certification"), and shall be
technically and operationally able to conduct commerce on
Advertiser Site on a nationwide scale (along with this
certification, "Fully Operational"). In the event Advertiser is
not Fully Operational by September 30, 1999, both parties shall
mutually agree to a new Launch Date which shall in no event be
later than December 31, 1999. The period between September 30,
1999 and such new Launch Date shall be called the "First Pro-
ration Period".
(b) Second Pro-ration Period. In the event Advertiser fails to become
------------------------
Fully Operational by January 1, 2000, one of the following shall
occur: a) if at least one third party has received USPS PC
Postage Certification, Yahoo may, at its sole discretion,
terminate this Agreement, or b) if no third party has received
USPS PC Postage Certification, the Launch Date shall be extended
to April 1, 2000 or an earlier date mutually agreed to by the
parties. The period between the final day of the First Pro-ration
Period and the new Launch Date shall be called the "Second Pro-
ration Period". If at any time during the Second Pro-ration
Period a third party receives USPS PC Postage Certification,
Yahoo may, at its sole discretion, terminate this Agreement.
7
<PAGE>
(c) Pro-ration. During the Pro-ration Periods, Yahoo's obligations
-----------
under Section 2.1 shall be suspended and its delivery guarantees
under Section 2.3 shall be prorated on a daily basis from
September 30, 1999. Subject to Section 5.2 above, Advertiser's
payment obligations under Section 3.1 shall not be pro-rated
during the Pro-ration Period and shall remain in full force and
effect. For the avoidance of doubt, Advertiser acknowledges and
agrees that it will forgo all pro-rated page views during the
Pro-ration Period.
(d) Termination. In the event this Agreement is terminated by
Yahoo pursuant to Section 5, Advertiser must fully pay all
remaining fees pursuant to Section 3 accruing to the end of the
Term. Such fees are nonrefundable and noncreditable except that in
the event such termination is pursuant to this Section 5.3,
Slotting Fees representing page views not delivered or foregone
(as calculated on a daily basis per the schedule provided in
2.3(a)) shall be creditable against Advertiser's future placements
of advertising, promotions, email deliveries, hyperlinks and any
other related services made available by Yahoo to third parties or
Advertiser from time to time based on availability and then
current rates. The first $200,000 of any such credits must be
applied by June 30, 2000 and any remaining credits must be applied
prior to December 31, 2000.
5.4 Exclusive Remedy. The provisions of Sections 5.3(a), (b), (c) and (d)
----------------
shall constitute Yahoo's exclusive remedy and Advertiser's sole liability
for failure to obtain USPS PC Postage Certification or become Fully
Operational.
5.5 Survival. The provisions of Section 3 shall survive termination and
--------
expiration of this Agreement except as limited in Section 5.2. The
provisions of Sections 2.3, 4, 5.3 (d), 7, 8, and 9 shall survive any
termination or expiration of this Agreement.
SECTION 6: RIGHT OF FIRST PRESENTATION: LIMITED EXCLUSIVITY
- -----------------------------------------------------------
6.1 Right of First Presentation for Renewal
---------------------------------------
In the event that Yahoo, at its sole discretion, decides to extend
the program described in Section 2 hereof beyond the Term, Yahoo will
deliver to Advertiser, at least 30 days prior to the end of the Term, a
written notice describing the terms and requirements for the extension of
such program. Yahoo and Advertiser will negotiate in good faith a written
extension or amendment to this Agreement under reasonable terms and
conditions. If Advertiser declines to commence negotiations regarding
such opportunity within ten (10) business days after receiving such
written notice from Yahoo or if the parties fail to reach agreement
within ten (10) business days following the commencement of good faith
negotiations (or such later date as agreed by the parties), Yahoo may
offer the opportunity to a third party. During the ten day periods set
forth above, Yahoo may not present an offer of similar nature to any
third party but shall negotiate exclusively with Advertiser.
6.2 First Right of Presentation for New Inventory
---------------------------------------------
In the event that Yahoo, in its sole discretion, decides to create,
acquire, develop or otherwise make available a new online postage related
promotional opportunity within
8
<PAGE>
its community properties (e.g., chat, message boards, clubs), Yahoo Address
Book, new Yahoo Properties (or new portions of existing Yahoo Properties)
that Yahoo may develop dedicated to software downloads, or explicitly
targeting the small business or small office/home office markets (e.g.
"Yahoo! Small Business Travel"), or new portions of the Yahoo Post Office,
Yahoo shall not make such new promotional opportunity available to
Advertiser Competitors before first presenting the opportunity to
Advertiser and, at Advertiser's option, negotiate in good faith a
definitive agreement under reasonable terms and conditions. Advertiser
acknowledges that the foregoing applies only to new promotional
opportunities providing merchant prominence similar to that described
herein and does not apply to routine promotions and advertisements offered
in the ordinary course of Yahoo's business. Yahoo shall describe the
opportunity and Yahoo's reasonable business requirements for the
opportunity in its written notice to Advertiser. If Advertiser declines to
commence negotiations with Yahoo regarding the opportunity described in the
notice within ten (10) business days after receiving such written notice
from Yahoo, or if the parties fail to execute an agreement or insertion
order within ten (10) business days following the commencement of good
faith negotiations (or such later date as is agreed to by the parties),
Yahoo may offer the opportunity to any Advertiser Competitors. Nothing in
this Section shall limit Yahoo's right to sell inventory to parties who
are not Advertiser Competitors. During the ten (10) business day period
set forth above, Yahoo may not present an offer of similar nature to any
third party but shall negotiate exclusively with Advertiser.
6.3 Limited Exclusivity
-------------------
During the Term:
(a) Yahoo shall not display banners, sponsorships, or other forms of
advertising of Advertiser Competitors on the Yahoo Post Office,
or Fixed Category and Keyword Pages (attached as Exhibit B or as
subsequently amended), the content of which specifically promotes
electronic postage services or software of Advertiser
Competitors.
(b) Yahoo shall not display the following forms of advertising,
promoting electronic postage services or software from such
Advertiser Competitors within Yahoo Small Business property: Text
Link on the front page, Merchant Spotlight on the Government and
Human Resources Pages, Button on each page. (with specifications
substantially similar to specifications of corresponding
Advertiser Links described on Exhibit A)
(c) Yahoo shall not display a text link or button of Advertiser
Competitors on the Yahoo Address Book specifically promoting
electronic postage services or software (with text link and
button specifications substantially similar to specifications of
corresponding text link described on Exhibit A).
(d) Yahoo shall not display a Front Page Promotion Link of an
Advertiser Competitor specifically promoting electronic postage
services or software during the period Advertiser is included in
a Front Page Promotion in accordance with 2.1(b).
(e) Yahoo will not display or co-brand content from Advertiser
Competitors in the Yahoo Post Office.
--
9
<PAGE>
6.4 Limitations. Except as explicitly provided in Section 6.3 above, Yahoo
-----------
shall not be precluded from placing advertising, sponsorships or any other
form of promotional media of any entity, including an Advertiser
Competitor, on any page in any Yahoo Property. Nothing in this Agreement
shall preclude Yahoo from honoring its current contracts with Advertiser
Competitors, the terms of which contracts would otherwise constitute a
breach of the obligations of Yahoo; provided that Yahoo will not renew such
contracts upon the expiration of the applicable term. Yahoo shall not be
precluded from including links to any person or entity in any directory or
merchant listing (including links to Advertiser Competitors) on any page in
the Yahoo Properties nor shall Yahoo be precluded from integrating any
editorial content or web site listings anywhere in the Yahoo Properties
included but not limited to the Yahoo Post Office. Except as expressly set
forth in this Agreement, Yahoo shall not be restricted from conducting its
normal course of business with Advertiser Competitors. Yahoo shall not be
precluded from promoting or advertising any Yahoo Property anywhere in the
Yahoo Properties.
SECTION 7: CONFIDENTIAL INFORMATION AND PUBLICITY.
- --------------------------------------------------
7.1 Confidentiality. The terms and conditions of this Agreement shall be
---------------
considered confidential and shall not be disclosed to any third parties
except to such party's accountants or attorneys, or except as otherwise
required by law. Neither party shall make any public announcement regarding
the existence of this Agreement without the other party's prior written
approval and consent.
7.2 Publicity. Any and all publicity relating to this Agreement and
---------
subsequent transactions between Yahoo and Advertiser and the method of its
release shall be approved in advance of the release by both Yahoo and
Advertiser. Yahoo and Advertiser agree to discuss comarketing efforts for
the launch of Advertiser nationwide service and the Yahoo! Post Office. The
parties agree to issue a mutually agreed upon press release announcing the
parties' relationship hereunder.
7.3 Privacy of User Information. Advertiser shall ensure that all
---------------------------
information provided by users of the Advertiser Site is maintained,
accessed and transmitted in a secure environment and in compliance with
security specifications to be mutually agreed upon by the parties. On the
Jump Page, Advertiser shall provide a link to its policy (or to Yahoo's
policy) regarding the protection of user data.
SECTION 8: ADDITIONAL TERMS
- ---------------------------
8.1 Exclusion of Yahoo Competitors from the Advertiser Site. In no event
-------------------------------------------------------
shall any Jump Page, nor any page of Advertiser's electronic postage
software provided by Advertiser to users who accessed Advertiser Site
through an Advertiser Link contain graphic or textual hyperlinks,
promotion, logos or advertising banners of any principal competitor of
Yahoo. The agreed upon competitors at the Effective Date are Amazon,
Excite, Lycos, AOL, CNET, Snap, Netscape, Microsoft (excluding links or
mentions of Advertiser integration with Microsoft desktop applications such
as Word, Outlook and Internet Explorer), Disney, NBC and Infoseek [and
their successors and affiliated sites
10
<PAGE>
with respect to Jump Pages only]. From time to time, but no more than one
time per calendar quarter, Yahoo may request additions to this list of
Yahoo's competitors. Such companies shall be included as Yahoo's
Competitors upon Advertiser approval, which shall not be unreasonably
withheld, provided that Advertiser may honor any agreements with such newly
designated Yahoo Competitors entered into prior to such designation.
8.2 Link-back to Yahoo. Advertiser shall place a Yahoo graphic link on all
------------------
pages to which users Click-through (including Jump Pages). Such Yahoo
graphic link shall (a) be placed on such page in a manner mutually agreed
(b) contain the Yahoo name and logo as provided by Yahoo and (c) directly
link the user back to a page designated by Yahoo.
8.3 Speed and Performance of Advertiser Site. The Advertiser Site shall
----------------------------------------
comply with the speed, scale, and performance requirements mutually agreed
upon by the parties and in no event less than that provided by the average
of the top three Advertiser Competitors. Advertiser shall make reasonable
efforts to ensure that all information provided by users to Advertiser Site
is maintained, accessed and transmitted in a secure environment.
8.4 Quality of Service This Agreement may be terminated by Yahoo upon forty
------------------
five (45) days written notice to Advertiser if Advertiser Site is no longer
within the top three (3) electronic postage merchants as determined, to the
extent possible over a reasonable amount of time, by independent third-
parties and in light of the number and quality of customers and product
offerings and Advertiser fails to cure within 45 days after receipt of such
notice. At all times following the Launch Date, Advertiser must be able to
effectively provide online postage services to all qualified (by Advertiser
and USPS standards) users that sign up.
8.5 User Data: All information and data provided to Yahoo by users of the
---------
Yahoo Properties or otherwise collected by Yahoo relating to user activity
on the Yahoo Properties shall be retained by and owned solely by Yahoo. All
information and data provided by Advertiser users on the Advertiser Site or
otherwise collected by Advertiser relating to user activity on the
Advertiser Site shall be retained by and owned solely by Advertiser. 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 the U.S. Post Office
or other governmental authorities or by law) or use the user information
for the transmission of "junk mail", "spam", or any other unsolicited mass
distribution of information.
8.6 License by Advertiser. Advertiser hereby grants to Yahoo a limited,
---------------------
non-transferable, non-exclusive, worldwide, fully paid license to use,
reproduce and display the Advertiser Brand Features (i) to indicate the
location of the Advertiser Links as set forth herein and (ii) in connection
with the marketing and promotion of Advertiser in the Yahoo Properties as
set forth herein or agreed by the parties.
8.7 License by Yahoo. Yahoo hereby grants to Advertiser a limited, non-
----------------
transferable, non-exclusive, worldwide, fully paid license to use,
reproduce and display the Yahoo Brand Features solely for the purpose and
on the pages of the Advertiser Site as described in Section 8.2 above.
11
<PAGE>
8.8 Proprietary Rights. As between the parties, each party or its licensors
------------------
and third party information and content providers retains all rights, title
and interest in and to all of the information, content, data, designs,
materials and all copyrights, patent rights, trademark rights and other
proprietary rights thereto provided by it pursuant to this Agreement.
Except as expressly provided herein, no other right or license with respect
to any copyrights, patent rights, trademark rights or other proprietary
rights is granted under this Agreement. All rights not expressly granted
hereunder by a party are expressly reserved to such party and its licensor
and information and content providers.
8.9 Advertiser Content. Yahoo! may, in its sole discretion, include content
------------------
on Yahoo Post Office such as zip codes, post office hours of operation, and
mailing tips. Yahoo agrees that in determining which, if any, content to
include, Yahoo will review and consider content provided by Advertiser
("Advertiser Content"). In the event Yahoo chooses to display Advertiser
content, Yahoo and Advertiser shall discuss and execute a content license
relating to such content.
Integration. Yahoo and Advertiser agree to discuss in good faith the
-----------
integration of Yahoo! Address Book into the Advertiser online postage
software. Yahoo and Advertiser also agree to discuss in good faith
integration of the Advertiser online postage service (HTML version) into
the Yahoo! Post Office once such version is available. The terms and
conditions relating to either instance of such integration shall be subject
to a separate written agreement.
SECTION 9: NOTICE; MISCELLANEOUS PROVISIONS
- -------------------------------------------
9.1 Notices. All notices, requests and other communications called for by
-------
this Agreement shall be deemed to have been given immediately if made by
telecopy (confirmed by concurrent written notice sent first class U.S.
mail, postage prepaid), if to Yahoo at 3420 Central Expressway, Santa
Clara, CA 95051, Fax: (408) 731-3301 Attention: Vice President (e-mail:
[email protected]), with a copy to its General Counsel (e-
mail:[email protected]), and if to Advertiser at the physical and
electronic mail addresses set forth on the signature page of this
Agreement, or to such other addresses as either party shall specify to the
other. Notice by any other means shall be deemed made when actually
received by the party to which notice is provided.
9.2 Independent Contractors. It is the intention of Yahoo and Advertiser
-----------------------
that Yahoo and Advertiser are, and shall be deemed to be, independent
contractors with respect to the subject matter of this Agreement, and
nothing contained in this Agreement shall be deemed or construed in any
manner whatsoever as creating any partnership, joint venture, employment,
agency, fiduciary or other similar relationship between Yahoo and
Advertiser.
9.3 Entire Agreement. This Agreement, together with all Exhibits,
----------------
represents the entire agreement between Yahoo and Advertiser with respect
to the subject matter hereof and thereof and shall supersede all prior
agreements and communications of the parties, oral or written, including
without limitation the Letter of Agreement between Yahoo and Advertiser.
12
<PAGE>
9.4 Amendment and Waiver. No amendment to, or waiver of, any provision of
--------------------
this Agreement shall be effective unless in writing and signed by both
parties. The waiver by any party of any breach or default shall not
constitute a waiver of any different or subsequent breach or default.
9.5 Governing Law. This Agreement shall be governed by and interpreted in
-------------
accordance with the laws of the State of California without regard to the
conflicts of laws principles thereof.
9.6 Successors and Assigns. Neither party shall assign its rights or
----------------------
obligations under this Agreement without the prior written consent of the
other party, which shall not unreasonably be withheld or delayed.
Notwithstanding the foregoing, either party may assign this Agreement to an
entity who acquires substantially all of the stock or assets of a party to
this Agreement; provided that consent will be required in the event that
the non-assigning party reasonably determines that the assignee will not
have sufficient capital or assets to perform its obligations hereunder, or
that the assignee is a direct competitor of the non-assigning party. All
terms and provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
9.7 Force Majeure. Neither party shall be liable for failure to perform or
-------------
delay in performing any obligation (other than the payment of money) under
this Agreement if such failure or delay is due to fire, flood, earthquake,
strike, war (declared or undeclared), embargo, blockade, legal prohibition,
governmental action, riot, insurrection, damage, destruction or any other
similar cause beyond the control of such party.
9.8 Severability. If any provision of this Agreement is held to be invalid,
------------
illegal or unenforceable for any reason, such invalidity, illegality or
unenforceability shall not effect any other provisions of this Agreement,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
9.9 Sole Responsibility. Advertiser will remain solely responsible for the
-------------------
operation of the Advertiser Site, and Yahoo and/or its Affiliates will
remain solely responsible for the operation of the Yahoo Properties. Each
party: (a) acknowledges that the Advertiser Site and the Yahoo Properties
may be subject to temporary shutdowns due to causes beyond the operating
party's reasonable control; and (b) subject to the terms of this Agreement,
retains sole right and control over the programming, content and conduct of
transactions over its respective Internet-based service.
9.10 Counterparts. This Agreement may be executed in two counterparts, both
------------
of which taken together shall constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
9.11 Authority. Each of Yahoo and Advertiser represents and warrants that
---------
the negotiation and entry of this Agreement will not violate, conflict
with, interfere with, result in a breach of, or constitute a default under
any other agreement to which they are a party.
13
<PAGE>
9.12 Attorneys Fees. The prevailing party in any action to enforce this
--------------
Agreement shall be entitled to reimbursement of its expenses, including
reasonable attorneys' fees.
14
<PAGE>
9.13 Reincorporation. Following the execution of this Agreement, Yahoo
---------------
intends to reincorporate into Delaware by virtue of a merger of Yahoo into
a wholly-owned Delaware subsidiary of Yahoo, and such Delaware subsidiary
will assume the obligations and acquire all rights of Yahoo under this
Agreement. Accordingly, all references in this Agreement to "Yahoo" shall,
to the extent applicable, be deemed to include Yahoo's successor in
interest as a result of the reincorporation.
(Signature page follows)
- ------------------------
15
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
YAHOO! INC. E-STAMP CORPORATION
By: /s/ Signature Illegible By: /s/ Robert H. Ewald
___________________________ ____________________________
Title: SVP Title: PRESIDENT & CEO
Address: ______________________ Address: ______________________
Telecopy: _____________________ Telecopy: _____________________
E-mail: _______________________ E-mail: _______________________
<PAGE>
EXHIBIT A
---------
ADVERTISER LINKS
<TABLE>
<CAPTION>
Advertising Elements
<S> <C> <C> <C>
Type and Location of
U.S. Based Yahoo Property URL Link on Property Number of Page Views
Yahoo! Small Business smallbusiness.yahoo.com Text Link - Front Page [***]
Merchant Button - Run
of Property
Merchant Spotlight Module-
Gov't, Human Resources Pages
Banners - Run of Property
Fixed Category Pages See Exhibit B Banners - Run of specific [***]
(Details on Exhibit B) category pages
Yahoo! Categories See Exhibit B Banners - Run of Business and [***]
Economy, Run of Computers and
Internet
Keywords See Exhibit B Banners - Run of Property [***]
(Details on Exhibit B)
Yahoo! People Search people.yahoo.com Banners - Run of Property [***]
Yahoo! Address Book address.yahoo.com Banners - Run of Property [***]
Run of Yahoo! Network Banners [***]
Target DMA:
. San Francisco
. Los Angeles
. New York
. Chicago
. Boston
. Washington D.C.
Target Interest:
. Small Business
Yahoo! Post Office TBD Module - front page [***]
Merchant Button--all pages
besides front page
Yahoo! Finance quote.yahoo.com Banners [***]
Yahoo! Travel travel.yahoo.com Banners [***]
Yahoo! Daily News dailynews.yahoo.com Banners [***]
. Top Stories (front page)
. Business News
. Technology News
. Policital News
. World News
. Local News
Yahoo! Weather weather.yahoo.com Banners [***]
Yahoo! Message Boards messages.yahoo.com/yahoo Banners East Module -Run of [***]
/Business_and_Finance/ Small Business Category
Small_Business/index.html
My Yahoo! my.yahoo.com Banners [***]
Target:
. Sales/Marketing, or
. Self Employed or
. Executive/Managerial, or
. Small Business Interest, or
. Business Interest, or
</TABLE>
[***] 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>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
* Professionals w/Sm. Business
Interest
Yahoo! Clubs clubs.yahoo.com Banners [*]
Yahoo! Classifieds/Computers classifieds.yahoo.com/ Banners [*]
computers.html
Promotional Elements
Yahoo! Front Page Promotion www.yahoo.com One promotion [*]
EZ Venture ezventure.yahoo.com HTML Page, Guaranteed Clicks [*] clicks
Yahoo! Direct Mail HTML Page, Email [*] Email Sent
</TABLE>
2) Specifications:
--------------
A The text link on the front page of the Yahoo Small Business property
referenced above shall: (a) be no longer than 25 characters, (b)
permit users to navigate directly to the Jump Page, and (c) shall
first appear as close as practicable to the Launch Date.
B The merchant button on the Yahoo Small Business referenced above
shall: (a) contain a logo with dimensions no larger than 88 pixels
wide by 31 pixels high (b) have a maximum file size of one and one
half (1.5) KB, (c) not contain animation and (d) permit users to
navigate directly to a Jump Page.
C The merchant spotlight module on the Government and Human Resources
page of the Yahoo Small Business referenced above shall: (a) contain a
logo with dimensions of either 120 pixels wide by 90 pixels high or
140 pixels wide by 30 pixels high (b) have a maximum file size of 2 K,
(c) not contain animation, (d) (i) if 120 pixels wide by 90 pixels
high have 1 text link with a maximum of 25 characters per link to
appear directly below the image or (ii) if 140 pixels wide by 30
pixels high have 3 text links with each text link having a maximum of
25 characters per link, and (e) permit users to navigate directly to a
Jump Page.
D All banner advertisements referenced above shall: (a) promote E-Stamp
products and services, (b) have dimensions no larger than 468 pixels
wide by 60 pixels high, (c) not have more than six seconds of
animation, no 'looping', (d) have a file size of no greater than 12K,
and (e) will permit users to navigate directly to a Jump Page.
E The module on the front page of the Yahoo Post Office referenced above
shall a) include links to relevant content and/or services, b) include
links to a Jump Page. E-Stamp shall work with Yahoo to facilitate the
login and navigation of the E-Stamp site and software for E-Stamp
users.
[***] 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>
F The merchant button on other pages of the Yahoo Post Office shall: (a)
contain a logo with dimensions no larger than 88 pixels wide by 31
pixels high (b) have a maximum file size of one and one half (1.5) KB,
(c) not contain animation and (d) permit users to the Jump Page.
G The message board module on Yahoo Small Business referenced above
shall: (a) contain a logo with dimensions no larger than 120 pixels
wide by 120 pixels high (b) have a maximum file size of 12 K, (c) may
contain animation, (d) have 3 text links with a maximum of 20
characters per link, and (e) permit users to navigate directly to a
Jump Page.
H The text link on the Yahoo Address Book property referenced above
shall: a) consist of 3 lines of not more than 10 characters each,
including spaces, (b) no words in all capital letters, c) permit users
to navigate directly to the Jump Page, and c) are subject to Yahoo's
approval.
Yahoo Delivers
I The guidelines and specifications for the Yahoo Delivers Email
messages to be delivered in accordance with 2.1(d) are as follows:
1. a) Advertiser may select up to three targeted qualifiers,
b) Advertiser may select from Yahoo registration demographics and geo-
demographic information, c) promotional offer must be valid for a
minimum of 30 days with expiration date, 30 days from e-mailing date,
(shorter dates only if approved by Yahoo), d) Yahoo will only track
mailings for 30 days, e) Advertiser must submit advertising creative
no less than 5 business days (10 days with 2 or more creative) prior
to mail date to guarantee timely delivery, f) E-mail all creative to
[email protected], g) Advertiser must provide Customer
-----------------------------
Support contact information so Yahoo can forward support calls, h)
500,000 e-mails per day maximum
2. Email message specifications: (a) a single HTML message which is free of
errors and must pass a validation checker, (b) Width of message must not exceed
425 pixels, (c) total page weight must be 30K or less (HTML code plus 6 graphics
or less), (d) animation limited to 6 seconds, no looping, (e) no Java,
JavaScript, frames, ActiveX, or dynamic HTML, (f) no body background image or
color. May use colored tables to simulate a background color, (g) messages
address users as Yahoo! Delivers or as otherwise determined by mutual consent
(e.g. "An exclusive offer for Yahoo! Delivers), h) subject line must be 35
characters or less including YAHOO DELIVERS!, i) subject line cannot mislead
viewer, t) all specifications are subject to Yahoo's! 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.
<PAGE>
EXHIBIT B
CATEGORIES, KEYWORDS AND CATEGORY PAGES
FIXED CATEGORY PAGES
Run_of Category Page:
http://dir.yahoo.com/Business_and_Economy/Companies/Transportation/Shipping/
Postal_Services/
Fixed Category Page:
http://dir.yahoo.com/Business_and_Economy/Companies/
Office_Supplies_and_Services/Mailing_Equipment/Electronic/Stamps/
Fixed Category Page:
http://dir.yahoo.com/Reference/Postal_Information/
Fixed Category Page:
http://dir.yahoo.com/Government/U_S_Government/Agencies/Independent/
United_States_Postal_Service_USPS_/
YAHOO! CATEGORIES (RUN OF):
http://dir.yahoo.com/Business_and_Economy/
http://dir.yahoo.com/Computers_and_Internet/
KEYWORDS
e postage
e stamps
Electronic postage
Electronic stamps
e-postage
estamps
e-stamps
Internet postage
on line postage
on line stamps
online postage
on-line stamps
postage
postage meters
postage stamps
postage rates
postal machines
postal rates
stamp
stamps
zip code
[***] 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>
EXHIBIT C
INSERTION ORDER
YAHOO! MAIN SITE
ADVERTISING INSERTION ORDER
http://www.yahoo.com
--------------------
YAHOO!
ORDER # SALES CONTACT
REVISION PHONE
TYPE FAX
DATE EMAIL
ADVERTISER AGENCY
ADDRESS ADDRESS
CONTACT CONTACT
PHONE PHONE
FAX FAX
EMAIL EMAIL
**RENEWAL - USE SAME ART __
START DATE: END DATE:
CONTRACT LENGTH:
POSITION:
- --------
TOTAL PAGE VIEWS TOTAL NET COST
- ---------------- --------------
OTHER INSTRUCTIONS
- ------------------
TOTAL NET COST/MONTH___________________
TOTAL NET COST__________________ Terms: See Billing Instructions.
BILLING INSTRUCTIONS:
--------------------
Bill to Advertiser.
First month due in advance; net 30
after first month.
-----------------
MATERIALS: Banners: Banner requirements are posted at
http://www.yahoo.com/docs/advertising.
DELIVERY: All materials and any changes must be delivered at least 4 business
days in advance to the email address specified for your region at :
http://www.yahoo.com/docs/advertising/submit.html. A Yahoo! insertion order
- -------------------------------------------------
number and flight dates must be referenced in all correspondence. Yahoo! will
not issue any credit or makegood due to incorrectly submitted banners and/or
incomplete information.
<PAGE>
TERMS AND CONDITIONS: This insertion order is subject to the terms and
- --------------------
conditions ("Standard Terms") attached hereto as Exhibit A of this Insertion
Order, and such Standard Terms are made a part of this insertion order by
reference. The signatory of this Insertion Order represents that he has read and
agrees to such Standard Terms.
This insertion order is valid for three (3) business days from the date of this
order. This agreement is non-cancelable.
AUTHORIZED BY:________________________ PHONE:_____________
DATE:_______________
PRODUCTION CONTACT:_______________________ PHONE:_____________
DATE:_____________
PLEASE RETURN TO YAHOO! SALES OPERATIONS DEPT. FAX # (408) 731-3492
Yahoo! Inc.
3400 Central Expressway, Suite 201
Santa Clara, CA 95051
<PAGE>
EXHIBIT D
WIRE INSTRUCTIONS
Yahoo's Bank Information:
Institution Name: Imperial Bank
Institution Address: Inglewood, CA
ABA: 122 201 444
Beneficiary Name: Yahoo! Inc.
Beneficiary Account Number: [***]
*** 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>
EXHIBIT E
EZ VENTURE
EZVENTURE: MATERIALS SPECS AND DUE DATES
NOTE: This is a general overview of the promotion's ad specs. When your
insertion order is completed, you will receive a customized version with the
game icon (gif) attached.
Welcome to Yahoo!'s EZVenture! Please take a few minutes to review this
information, which details all the program basics.
WHAT IS IT? (http://play.ezventure.com/ezv/restart.htm)
-------------------------------------------
EZVenture is a Yahoo! owned and operated promotion targeted at small businesses.
In association with Fast Company, relevant business articles are intertwined
with offers from advertisers.
CLIENT DELIVERABLES
Note: All deliverables are due every Friday, 12:00 PM EST. New campaigns "go
live" every Wednesday.
UP TO 3 AD BANNERS AND REDIRECT URLS:
EZVenture contains a banner rotation at the top of each content page. Clients
may submit up to 3 each 468 X 60 banners and redirect URLs. Maximum file size
for each banner is 12K, animation permitted up to 6 seconds. No looping. No html
banners.
UP TO 3 OFFER PAGE URLS:
Yahoo! has final approval on all client creative submitted. If file size and
creative does not meet Yahoo! specifications, we reserve the right to reject
any/all deliverables.
Offer pages are hosted by the advertiser (your opportunity to dazzle users with
special offers, online discounts, or additional sweepstakes). These pages are
linked with EZVenture articles and will include a "Win It" sweepstakes button
which users click on to continue through EZVenture. Offer pages must not exceed
30K to optimize Yahoo!'s fast page loading standards.
Note: every offer page must include the attached button. If the button does not
appear on the offer page, Yahoo! will remove the page until the button is re-
positioned.
Your redirect URL for the button will be assigned to you when your completed
insertion order is received.
<PAGE>
EMAIL INSERTS (RESTRICTED TO CERTAIN PACKAGES)
Promotion focused e-mail messaging is sent once per week on Wednesday and
includes article content updates, scoring information, and 1-3 sponsor messages.
Multi Sponsor e-mail messages are 30 words long and placed in the center of the
message. Note that your e-mail messaging may be used to promote your poll
question and poll results.
[Note: Yahoo! does not report open or click-through statistics from emails.]
POLL QUESTIONS (RESTRICTED TO CERTAIN PACKAGES)
Poll questions are rotated each week and consist of one question and three
multiple choice answers. The results of your poll will be posted for players to
view for one week once the poll has completed its run.
Please deliver:
* 1 Question (20 words)
* 3 Answers (5 words per answer)
REPORTING:
Once per week, Yahoo! will send you a report that includes:
* # of clicks delivered per offer page (broken down by day)
* Impressions and click-throughs from your banner
* The number of email inserts sent (if applicable)
TERMS AND CONDITIONS
BACK BUTTON
The back button on sponsors' offer pages must be enabled. However, there is no
back button requirement for any pages deeper in sponsors' sites.
BANNER ADS
* Banners in EZVenture can link to the offer page or anywhere else on
the sponsor's site.
* Up to three banner ads can be rotated. Impressions and click-throughs
from the banners are included in the weekly report.
* Third party ad banner serving is not allowed.
* Clients may submit new offer page/banner creative each week with the
same deliverable timeline as stated above.
* There is no opt-in feature under the banner ads in EZVenture
OFFER PAGE TESTING
EZVenture is not capable of testing multiple offer pages simultaneously.
<PAGE>
TARGETING
Sponsors cannot target by age, gender, zip code, job function, or company size.
All click-throughs and email inserts are directed to the entire EZVenture
database.
BROWSER SPAWNING
The offer page is not permitted to spawn a new browser window when users click
back into the promotion.
INTERSTITIAL
Sponsor interstitial between offer pages and game pages are not permitted.
COMPETITIVE ADVERTISING
Offer pages may not feature banner ads from Yahoo's online portal competitors.
CONTACTS FOR QUESTIONS AND COMMENTS:
Questions about ad specifications go directly to:
Katherine Ho, Yahoo! Promotion Supervisor.
[email protected]
(408) 616-3775
<PAGE>
EXHIBIT F
ADVERTISING POLICIES
Manner of transmission to Yahoo!: Estamp shall submit all artwork (banners, HTML
emails, modules, buttons etc.) via email to: [email protected] please "cc"
[email protected] point
-----
Lead time prior to publication: New banner submission should be at least (4)
four business days prior to the agreed upon "live" date. A change of any
creative should be submitted at least (4) four business days prior to the
agreed upon change date. All other creative, including creative for front page
promotions and HTML pages for email require submission (7) seven business days
prior to the agreed upon "live" date.
Content/creative: content and creative must be reviewed and approved by Yahoo!
prior to being put on our site. Please refer to our advertising resource center
for specifications on the different types of creative allowed on Yahoo!
https://sales.yahoo.com/mediakit/Sales/ops/front page.html
- ----------------------------------------------------------
Promotions: please refer to
http://www.yahoo.com/docs/advertising/body.html#banner specs for details
- ------------------------------------------------------------
regarding building and having Yahoo! host your Front Page Promotion.
<PAGE>
Exhibit 10.21
SERVICES AGREEMENT
This Services Agreement ("Agreement") is entered into as of September 24, 1999
("Effective Date"), by and between Intuit Inc. a Delaware corporation, located
at 2550 Garcia Ave., Mountain View, California 94043 ("Intuit"), and E-Stamp
Corporation, a Delaware corporation, located at 2855 Campus Drive, Suite 100,
San Mateo, California 94403 ("E-Stamp").
The parties agree as follows:
1. DEFINITIONS
1.1 "Customer" means a customer who: (a) has signed up with the E-Stamp
Service using the QuickBooks Product or through specified Intuit Sites or by way
of Intuit advertising; provided that, with respect to such Intuit advertising,
only if the parties mutually agree upon appropriate means of tracking or
confirming that such customer is an Intuit referral; and (b) is approved to use
the E-Stamp Service and has purchased U.S. Electronic Postage at least once by
accessing the E-Stamp Service.
1.2 "E-Stamp Competitor" means a legal entity, or a division of a legal
entity, primarily engaged in the business of selling U.S. Electronic Postage or
U.S. Electronic Postage software. As of the Effective Date, to the best of the
parties' knowledge the E-Stamp Competitors are Stamps.com, Pitney Bowes and
Neopost.
1.3 "E-Stamp Postage Buying Experience" means the process by which a
Customer accesses the E-Stamp Service via the QuickBooks Product or via a
specified Intuit Site and purchases U.S. Electronic Postage through the E-Stamp
Service.
1.4 "E-Stamp Service" means the E-Stamp service(s) of distributing postage
electronically in accordance with IBIP under this Agreement, which will include
the related functionality generally made available by E-Stamp at
http://www.estamp.com.
1.5 "E-Stamp Sign Up Experience" means the process by which a Customer
accesses the E-Stamp Service via the QuickBooks Product or via a specified
Intuit Site and registers with E-Stamp to use the E-Stamp Service.
1.6 "E-Stamp Site" means the site designed and hosted by E-Stamp for the
purposes of this Agreement, to be located at http://www.estamp.com/intuit or
----------------------------
other such location as E-Stamp may designate.
1.7 "Exclusivity Criteria" means the following criteria:
<PAGE>
CONFIDENTIAL
------------
(a) the pricing of the E-Stamp Service under this Agreement is
competitive with the pricing of the E-Stamp Service generally;
(b) E-Stamp is among the top 2 U.S. Electronic Postage merchants
as determined, to the extent possible over a reasonable amount of
time, by independent third parties and in light of the number and
average yearly postage purchases of customers through E-Stamp,
customer service and satisfaction, site performance, and product
offerings; and
(c) E-Stamp has not failed to cure any material breach of this
Agreement by E-Stamp within fifteen (15) days after its receipt
of Intuit's written notice of such breach.
1.8 "Gross Revenues" means transaction revenues earned by E-Stamp through
the sale to Customers of U.S. Electronic Postage through the E-Stamp Service,
under the terms of this Agreement, provided that Gross Revenues shall not
include the value of the postage sold.
1.9 "IBIP" means the United States Postal Service's Information-Based
Indicia Program.
1.10 "Intuit's Supplies Business" means Intuit's Financial Supplies Group
(FSG) or its successor group.
1.11 "Intuit Sites" means http://www.quickbooks.com or such other Intuit
web sites as may be designated by Intuit in writing.
1.12 "Net Revenues" means Gross Revenues, less E-Stamp transaction costs
not to exceed 10% of Gross Revenues, provided that such transaction costs
will not include costs of E-Stamp Starter Kits (as defined in Section 7.5(a)).
1.13 "QuickBooks Product" means the U.S. version of Intuit's QuickBooks
2001 or QuickBooks 2001 software product.
1.14 "QuickBooks 2001 Launch" means the date on which Intuit's QuickBooks
2001 product, with access to the E-Stamp Service, E-Stamp Sign Up Experience
and E-Stamp Postage Buying Experience as specified in Schedule A, is first made
----------
commercially available to the public.
1.15 "U.S. Electronic Postage" means a type of U.S. postage approved by
the U.S. Postal Service for sale and distribution over the Internet, and which
meets the specifications defined by IBIP.
1.16 "Territory" means the United States.
2
<PAGE>
CONFIDENTIAL
------------
1.17 "QuickBooks Customer" means a QuickBooks Product customer who: (a)
has signed up with the E-Stamp Service using the QuickBooks Product or through
specified Intuit Sites; and (b) can be confirmed and validated as the licensee
of a QuickBooks Product in a mutually agreed upon manner.
2. PRODUCT INTEGRATION, MARKETING, AND PROMOTIONAL ACTIVITIES
2.1 The parties will use commercially reasonable efforts to provide the
marketing and promotional activities in accordance with the obligations
described in Schedule A ("Program Description"). Without limiting the
---------- -------------------
generality of the foregoing, the parties will cooperate and work together to
define and implement all programs necessary to achieve the overall objectives of
the parties under this Agreement to the extent that the parties mutually agree
in writing on such definition and implementations during the term of this
Agreement. The parties will provide product integration as described in
Schedule A. The parties recognize that the dates specified in Schedule A for
- ---------- ----------
each party's activities can be met by such party only if the other party
performs its related obligations described in Schedule A within a reasonable
----------
timeframe prior to the time such activity is to be implemented.
2.2 E-Stamp shall have the opportunity to review and provide input prior
to finalization of the details of implementation of the Program Description,
provided that the details of implementation of the Program Description shall be
subject to Intuit's reasonable discretion.
2.3 In no event shall any part of the E-Stamp Sign-up Experience or the E-
Stamp Postage Buying Experience provided by E-Stamp to Customers who accessed
the E-Stamp Sign-Up Experience or E-Stamp's software through a link in the
QuickBooks Product or through a specified Intuit Site contain any graphic or
textual hyperlinks, promotions, logos or advertising banners of any principal
competitor of Intuit specified in Schedule B as amended in accordance with the
-----------
provisions of Schedule B; provided, however, that the terms of this paragraph
-----------
will not apply to references to the E-Stamp Service's integration with Microsoft
Word, Microsoft Outlook, or Microsoft Internet Explorer.
2.4 In the event that any part of the E-Stamp Sign-up Experience or the E-
Stamp Postage Buying Experience provided by E-Stamp to Customers who accessed E-
Stamp Sign-Up Experience of E-Stamp's software through a link in the QuickBooks
Product or through a specified Intuit Site contains any content or other items
that violate the restrictions set forth in Section 2.3 or that are obscene,
indecent, in poor taste, defamatory, criminal, or otherwise violate any
applicable law, subject to applicable regulations of the U.S. Postal Service E-
Stamp shall promptly remove such content as soon as possible following Intuit's
authorized request.
2.5 E-Stamp will be responsible for the security of the E-Stamp Service
and for all U.S. Electronic Postage purchased by Customers through the E-Stamp
Service.
3. SUPPLIES
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During the six (6) months following the Effective Date, the parties shall
cooperate in negotiating to build a mutually-beneficial supplies business and to
implement a revenue sharing model for such supplies business; provided that such
business is incremental and supplemental to Intuit's Supplies Business current
customer base and product line and does not detract from Intuit's Supplies
Business' then-current sales and revenues.
4. CUSTOMERS
4.1 Customer Service. E-Stamp shall cooperate and assist Intuit by
----------------
answering Customer questions and complaints regarding the E-Stamp Services
provided and E-Stamp shall be solely responsible for providing all customer
service and support with respect to such services. Such service and support
will meet the response requirements specified in Schedule C in all material
----------
respects. E-Stamp shall provide Intuit with a priority, toll-free phone number
and a website url where Intuit can direct Customers who need such service and
support.
4.2 Site Performance. During the term of this Agreement, the performance
----------------
of the E-Stamp Site will meet the requirements specified in Schedule D in all
----------
material respects.
4.3 Customer Information. During the E-Stamp Sign Up Experience and the
--------------------
E-Stamp Postage Buying Experience, the information that E-Stamp obtains from
Customers will be limited to information reasonably related to the purchase of
U.S. Electronic Postage pursuant to this Agreement or otherwise required to
provide the E-Stamp Service or comply with applicable laws and regulations
(including, without limitation, IBIP requirements).
5. REPORTING
E-Stamp will provide Intuit with the following kinds of reports on a
monthly basis during the term of this Agreement, subject to E-Stamp's
commercially reasonable privacy policies (which shall be no more restrictive
than TRUSTe's requirements) and applicable laws and government rules and
regulations (including, but not limited to, applicable rules and regulations
issued by the U.S. Postal Service):
(a) aggregated Customer profile information, including but not limited to
business location, and industry;
(b) usage data that shows acquisition rates, conversion rates, postage
products used, purchase frequency, average order size, and paths
through the process;
(c) Customer service data that shows contact rates, response times,
delivery times, major customer service issues based on the reasons for
customer service contacts;
(d) data to support quarterly revenue share and bounty fees;
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(e) aggregated Customer transaction information showing average
transaction, monthly and yearly purchases;
(f) twelve (12) month rolling non-binding forecast of estimated users,
gross revenues, net revenues, and payments to Intuit, which forecast
will be jointly formulated by the parties; and
(g) Customer-specific information.
6. EXCLUSIVITY
6.1 Provided that E-Stamp meets the Exclusivity Criteria: (a) E-Stamp
will be the only U.S. Electronic Postage provider for Intuit's QuickBooks
Products Business; and (b) Intuit will not engage in any marketing, promotion or
distribution of U.S Electronic Postage via the QuickBooks Product Business with
an E-Stamp Competitor during the term of this Agreement; and (c) Intuit will
make no further promotional, advertising or sponsorship opportunities on
QuickBooks.com or QuickBooks.com newsletters available to an E-Stamp Competitor.
6.2 "QuickBooks Product Business" means the business of marketing,
promoting and selling the QuickBooks Products and directly related products and
shall not include: (i) advertising on Quicken.com; (ii) advertising on
QuickBooks.com; (iii) advertising sold by third parties on framed third party
sites; (iv) advertising in Intuit's small business newsletters; or (v)
advertising on the Web sites at http://www.quicken.excite.com,
http://www.quicken.webcrawler.com, or http://www.quicken.aol.com
6.3 Intuit also agrees, provided that E-Stamp meets the Exclusivity
Criteria, to provide E-Stamp a Right of First Consideration for:
(a) future in-product integration of U.S. Electronic Postage services
into the Intuit Quicken and/or Quicken Home and Business software
products;
(b) joint marketing, distribution and promotion of U.S. Electronic
Postage services associated with the Quicken and Quicken Home &
Business software products and customer bases, subject to
Intuit's existing obligations with third parties;
(c) future integration of U.S. Electronic Postage services into
Intuit's Supplies Business to supplement the product lines of
Intuit's Supplies Business; and
(d) becoming the exclusive online postage partner for Quicken.com
and Quicken.com newsletters subject to Intuit's existing
obligations with third parties.
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"Right of First Consideration" shall mean that Intuit shall consider E-Stamp
first for an opportunity under Section 6.3 and give E-Stamp advance written
notice thereof; provided, however, that Intuit shall in no way be obligated to
provide E-Stamp with Intuit's decision regarding such opportunity before
soliciting or considering any third parties for such opportunity. In no way
shall this section preclude Intuit from soliciting, considering, and/or
selecting an E-Stamp Competitor for such opportunity. Intuit shall have sole
discretion in defining the terms of opportunities under this Section 6.3. To
the extent that Intuit and E-Stamp agree in writing upon the terms and
conditions of such an opportunity, such terms and conditions will automatically
be added to the provisions of Section 6.1.
6.4 In the event that E-Stamp fails to meet the Exclusivity Criteria,
Intuit shall have the right at any time, upon written notice to E-Stamp, to
terminate the provisions of this Section 6; and/or (ii) limit the applicability
of this Agreement solely to the QuickBooks 2001 product.
7. FEES AND COSTS
7.1 Customer Acquisition Fee. Subject to Section 7.2, E-Stamp will pay
------------------------
Intuit an initial fee of $5,500,000, in such amounts and on such dates as
follows:
(a) $1,000,000 due and payable upon execution of this Agreement; and
(b) $4,500,000 due and payable on the date of the QuickBooks 2001
Launch or on January 1, 2000, whichever is later.
7.2 Survival of Payment Obligations. The payment obligations specified
-------------------------------
in Section 7.1 shall survive any termination of this Agreement, except with
respect to payment obligations which are due and payable after: (i) E-Stamp has
given Intuit notice of termination of this Agreement in accordance with Section
9.2 (Termination for Breach) due to Intuit's material breach of this Agreement,
if termination of this Agreement subsequently occurs in accordance with Section
9.2 based on such notice; (ii) E-Stamp has given Intuit notice of termination of
this Agreement in accordance with Section 15.5 (Force Majeure); or (iii) E-Stamp
has given Intuit notice of termination of this Agreement in accordance with
Section 15.1 (Assignment).
7.3 Customer Bounty Fee. In addition, E-Stamp will pay Intuit, within
-------------------
thirty (30) days after the end of each calendar quarter during the term of this
Agreement, a quarterly fee for each New Customer acquired during such calendar
quarter in excess of the number indicated in the second column for the
applicable calendar year, in the amounts as follows:
<TABLE>
<CAPTION>
Calendar Year For each New Customer over the following number Bounty Fee
of New Customers in such year
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
1999 10,000 $52/New Customer
- -----------------------------------------------------------------------------------------------------------
2000 30,000 $77/New Customer
- -----------------------------------------------------------------------------------------------------------
2001 0 $27/New Customer
- -----------------------------------------------------------------------------------------------------------
</TABLE>
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For clarification, such fees shall be due and payable: (a) for each New
Customer in excess of 10,000 New Customers in 1999; (b) for each New Customer in
excess of 30,000 New Customers in 2000; and (c) for each New Customer in 2001.
For purposes of the foregoing, a "New Customer" means, for any quarter or year,
a Customer who first qualifies as a "Customer" under Section 1.1 during such
quarter or year, as the case may be.
7.4 Revenue Sharing Fees. In addition, E-Stamp will pay Intuit, within
--------------------
thirty (30) days after the end of each calendar quarter during the term of this
Agreement, quarterly fees based on a percentage of the Net Revenues earned by E-
Stamp during such quarter as follows:
Calendar Year Payment to Intuit
------------- -----------------
1999 0% of Net Revenues
2000 20% of Net Revenues
2001 20% of Net Revenues
7.5 Costs.
-----
(a) Starter Kit Costs. E-Stamp agrees that, during the term of this
-----------------
Agreement, QuickBooks Customers who request the then-current E-Stamp Starter
Kit in order to access and purchase U.S. Electronic Postage on the E-Stamp
Service, which kit E-Stamp will provide to such customers following such
requests, will not be obligated to pay charges of any kind for such kits.
Intuit will contribute toward E-Stamp's costs of such kit for each such
QuickBooks Customer to whom E-Stamp supplies an E-Stamp Starter Kit in
accordance with this paragraph as follows: Intuit will be obligated to E-Stamp
in the amount of Two Dollars ($2.00) for each such QuickBooks Customer,
payable within thirty (30) days after receipt of a quarterly report with
respect to the calculation of the amounts due. "E-Stamp Starter Kit" means the
E-Stamp electronic vault, E-Stamp Internet postage software, E-Stamp address
matching CD, and associated documentation.
(b) Other Costs. Unless otherwise provided in this Agreement, each
-----------
party shall bear its own costs and expenses in connection with its activities
performed under this Agreement.
7.6 Records/Audit. E-Stamp will maintain accurate records, and will
-------------
provide Intuit with timely reports based upon such records, with respect to the
calculation of all amounts due under this Agreement. Intuit may, upon no less
than thirty (30) days prior written notice to E-Stamp, but no more frequently
than once each calendar quarter, cause an independent Certified Public
Accountant to inspect all relevant records of E-Stamp upon which the calculation
of such payments are based during E-Stamp'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 E-Stamp will be responsible for the payment of the
reasonable fees for such inspection. In addition, E-Stamp shall immediately
remit payment to
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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.
8. 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.
9. TERM AND TERMINATION
9.1 Term. Unless otherwise terminated as specified in this Section 12,
----
the term of this Agreement shall begin on the Effective Date and will end on
December 31, 2001. Renewal of this Agreement will require the mutual written
agreement of the parties.
9.2 Termination for Breach. 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.
9.3 Post-Termination Transition Period. During the 90-day period
----------------------------------
immediately following the effective date of any termination of this Agreement,
the parties will cooperate in good faith (including, to the extent required by
such good faith cooperation, by continuing the performance of their obligations
and the exercise of their rights) under this Agreement in order to minimize any
disruption to Customers resulting from the termination of this Agreement.
9.4 Survival. The provisions of Sections 7.1 (Customer Acquisition Fee),
--------
except to the extent specified in Section 7.2; Section 7.6 (Records/Audit); 8
(Publicity); 9.0 (Termination); 11 (Content Ownership); 12 (Confidentiality and
User Data); 13 (Warranty/Indemnity/Disclaimer); 14 (Limitation of Liability);
and 15 (General) will survive any termination or expiration of this Agreement.
10. TRADEMARK OWNERSHIP AND LICENSE
10.1 Ownership. E-Stamp 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 E-Stamp hereunder.
10.2 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
8
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discretion, and shall be subject to the approval of the party whose trademarks,
service marks or trade names are being used. 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.
11. CONTENT OWNERSHIP
E-Stamp will retain all right, title and interest in and to the E-Stamp
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.
12. CONFIDENTIALITY AND USER DATA
12.1 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.
12.2 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.
12.3 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.
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12.4 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.
12.5 Customer Information.
--------------------
(a) All information and data provided to Intuit by users of the
QuickBooks Product or otherwise collected by Intuit relating to user activity on
the QuickBooks Product shall be retained by and owned solely by Intuit. All
information and data provided by E-Stamp users during the E-Stamp Sign Up
Experience, the E-Stamp Postage Buying Experience or otherwise collected by E-
Stamp relating to user activity related to the use of E-Stamp's electronic
postage software, service or website shall be retained by and owned solely by E-
Stamp. Each party agrees to use such information only as authorized by the user
and subject to each party's reasonable privacy policies.
(b) E-Stamp will provide Intuit with information reasonably requested
and necessary to support the calculation of Net Revenues and payments due to
Intuit.
(c) E-Stamp will use its best commercial efforts to give Intuit
reasonable "blind" access to its database of customers who signed up for the E-
Stamp Service using the QuickBooks Product or through specified Intuit Sites or
by way of Intuit advertising which E-Stamp can track or otherwise confirm as an
Intuit referral; provided that Intuit acknowledges that the information
contained in such database will be subject to the confidentiality obligations
set forth in this Agreement. To the extent that E-Stamp collects the following
customer information, such "blind" access will include, without limitation,
access to the following customer information: which customers that have
purchased and are using U.S. Electronic Postage, customers that have evaluated
the E-Stamp Service but decided not to purchase any U.S. Electronic Postage, and
customers that have ceased using the E-Stamp Service
13. WARRANTY/INDEMNITY/DISCLAIMER
13.1 E-Stamp Warranties. E-Stamp 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 E-Stamp does not violate, conflict with, or
result in a material default under any other contract or agreement to which E-
Stamp is a party, or by which it is bound; and (iii) E-Stamp's performance under
this Agreement will not result in an infringement of any third party's patent,
copyright, trademark, or other proprietary rights.
13.2 Year 2000 Warranty. E-Stamp represents and warrants to Intuit that
------------------
E-Stamp's software products and services covered by this Agreement will not
incur a material loss of performance as a result of the century date change in
the year 2000 or as a result of the year 2000 being a leap year.
10
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13.3 Intuit Warranties. Intuit represents and warrants that (i) it has
-----------------
full power and authority to enter into this Agreement; and (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) Intuit's performance under
this Agreement will not result in an infringement of any third party's patent,
copyright, trademark, or other proprietary rights.
13.4 Indemnity.
---------
(a) E-Stamp will defend and/or settle any third party claim brought
against Intuit, its affiliates, officers, directors, employees, consultants and
agents (each, an "Indemnified Party") arising from any claim by a third party of
infringement of a patent, copyright or trademark or misappropriation of a trade
secret anywhere in the world to the extent the same is based upon any such
infringement or misappropriation relating to the E-Stamp Service as delivered by
E-Stamp without modification or combination with any other product or service,
unless such infringement or misappropriation would have existed even in the
absence of such modification or combination. E-Stamp will indemnify and hold
harmless each such Indemnified Party against any resulting loss, liability, cost
or expense arising out of third party claims, including but not limited to any
amounts awarded in a settlement or by a court against such party (and reasonable
attorneys' fees and out-of-pocket expenses in connection therewith) ("Damages"),
provided that E-Stamp shall have: (i) received from such Indemnified Party
prompt notice of said claim; (ii) received from such Indemnified Party the
exclusive right to control and direct the investigation, defense, or settlement
of such claims; and (iii) received at E-Stamp's expense the reasonable
cooperation and assistance of Indemnified Party. Subject to E-Stamp's exclusive
right to control, Intuit will have the right to participate in any legal
proceeding related to such a claim at is own expense with counsel of its own
choice.
(b) In the event that either party's rights or obligations in
connection with the E-Stamp Service is enjoined or otherwise limited either
pursuant to a court determination or a settlement as a direct result of a claim
for which indemnification is proper under Section 13.4(a):
(i) E-Stamp shall: (A) substitute for the E-Stamp Service a
service that meets the specifications for the E-Stamp Service in all material
respects; (B) procure for Intuit and Customers the right to continue using the
E-Stamp Service; or, in the event that (A) and (B) are not commercially
practicable within a commercially reasonable period of time, (C) terminate this
Agreement (a "Special Termination"), provided that upon a Special Termination
-------------------
the terms set forth in subsection (c) below shall apply.
(ii) Damages shall also include, without limitation, any amounts
Intuit is required to pay to any third party for a claim which would have been
subject to indemnification hereunder if such third party were an Indemnified
Party.
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(c) In the event of a Special Termination, E-Stamp shall procure for
Intuit at no cost the right of Customers to continue to use the E-Stamp Service
then in use in connection with this Agreement for a period not to exceed ninety
(90) days from notice of Special Termination ("Special Termination Rights"). In
the event E-Stamp is unable to procure the Special Termination Rights, E-Stamp
shall indemnify Intuit for all Damages arising out of third party claims,
including but not limited to Customers' lost profits awarded in a settlement or
by a court, resulting from such inability to procure the Special Termination
Rights for such period. Nothing in this paragraph shall in any way limit or
otherwise affect Intuit's indemnification rights under subsection (a) with
respect to any Damages associated with the period prior to Special Termination.
(d) E-Stamp shall be solely responsible for any legal liability
whether in tort, contract, or otherwise arising out of or relating to (i) the E-
Stamp Service and/or E-Stamp's related software and/or (ii) any content or other
material to which users can link through the E-Stamp Service, except to the
extent that such liability was caused by the acts or omissions of any
Indemnified Party. E-Stamp shall indemnify and hold harmless each Indemnified
Party against any Damages resulting from a claim by a third party to the extent
that such claim is based upon the foregoing ("E-Stamp Portion of the Claim"),
provided that E-Stamp shall have: (i) received from such Indemnified Party
prompt notice of the E-Stamp Portion of the Claim; (ii) received from such
Indemnified Party the exclusive right to control and direct the investigation,
defense, or settlement of the E-Stamp Portion of the Claim; and (iii) received
at E-Stamp's expense the reasonable cooperation and assistance of Indemnified
Party in connection with the E-Stamp Portion of the Claim. Subject to E-Stamp's
exclusive right to control, Intuit will have the right to participate in any
legal proceeding related to such a claim at is own expense with counsel of its
own choice.
13.5 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.
14. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 12, 13.4(a), 13.4(b), OR
13.4(c):
14.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
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14.2 THE LIABILITY OF A PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT
EXCEED, THE AMOUNTS PAID BY E-STAMP TO INTUIT UNDER THIS AGREEMENT.
15. GENERAL
15.1 Assignment.
----------
(a) 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:
(i) 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
(ii) such 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.
Notwithstanding the foregoing, if either party assigns this Agreement to a
direct competitor of the other party by operation of law or otherwise, such
other party will have the right to terminate this Agreement for its convenience.
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.
(b) Notwithstanding the terms and conditions of subsection (a) above,
if either party assigns this Agreement to a direct competitor of the other party
("Non-Assigning Party") by operation of law or otherwise:
(i) the Non-Assigning Party will have the right to terminate
this Agreement for its convenience; and
(ii) if Intuit is the Non-Assigning Party and Intuit elects to
terminate this Agreement pursuant to this subsection (b)
prior to E-Stamps payment of the $4,500,000 specified in
--------
Section 7.1(b), E-Stamp will no longer be obligated to
make such $4,500,000 payment to Intuit but will instead
pay Intuit $2,250,000 within thirty (30) days of such
election by Intuit.
The parties acknowledge that, if Intuit or E-Stamp elects to terminate this
Agreement pursuant to this subsection (b) at any time following E-Stamp's
---------
payment of the $4,500,000 specified in Section 7.1(b), Intuit will have the
right to retain the entirety of such payment.
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15.2 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.
15.3 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 E-Stamp: E-Stamp Corporation
2855 Campus Drive
San Mateo, California 94403
Attn: Robert Ewald, President and CEO
Attn: Edward Malysz, Vice President and General Counsel
Fax: 650.554.8455
To Intuit: If hand delivered or faxed:
--------------------------
Intuit Inc.
2535 Garcia Avenue MS 2550
Mountain View, California 94043
Attn: General Counsel
Fax: 650.944.5656
If mailed:
---------
Intuit Inc.
P.O. Box 7850 MS 2550
Mountain View, CA 94039-7850
Attn: General Counsel
15.4 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.
15.5 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 E-Stamp's failure to obtain any necessary
governmental approval required in connection with the performance of its
obligations hereunder. In the event that the duration of such delay or failure
of performance by either party exceeds thirty (30) days, the other party will
have the right to terminate this Agreement at its
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convenience. If E-Stamp so terminates this Agreement following Intuit's delay in
or failure of performance, Intuit will pay E-Stamp the unamortized portion of
the fees paid by E-Stamp to Intuit under Section 7.1, based on a straight-line
pro rata amortization of such fees beginning on the Effective Date and ending on
December 31, 2000.
15.6 Severability. In the event that any of the provisions of this
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Agreement are held to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
15.7 Entire Agreement. This Agreement is the complete and exclusive
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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.
15.8 Counterparts. This Agreement may be executed in counterparts, each
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of which will serve to evidence the parties' binding agreement.
E-Stamp Corporation Intuit Inc.
By: /s/ Edward F. Malysz By: /s/ James J. Heeger
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Name: Edward F. Malysz Name: James J. Heeger
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Title: V.P., General Counsel Title: SVP, Small Bus. Div.
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Date: 9/24/99 Date: 9/24/99
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SCHEDULE A
Program Description
1) Marketing and Promotional Programs, to be implemented from Effective Date
through December 31, 2001.
a) Intuit Obligations
i) Intuit shall promote the E-Stamp Service in four (4) editions of
the QB.com newsletter in an area at Intuit's sole discretion.
Intuit shall consider in good faith any applicable requests
received from E-Stamp in a timely manner. 1st promotion by
October 1999, 2nd promotion by January 2000, 3rd promotion by
January 2001, 4th promotion by July 2001.
ii) Intuit shall provide E-Stamp with a presence on the
QuickBooks.com Site within an area at Intuit's sole discretion.
Intuit shall consider in good faith any applicable requests
received from E-Stamp in a timely manner. Placement by
October 15, 1999.
iii) Intuit shall include a description of E-Stamp Service and
QuickBooks Product Integration in press tour and press materials
related to all version releases of the QuickBooks Products
during the term of the Agreement. Inclusion by October 1999.
iv) Intuit shall describe E-Stamp Service and QuickBooks Product
Integration on QuickBooks retail box. Description by
January 2000.
v) Intuit shall describe E-Stamp Service and QuickBooks Product
Integration in upgrade mailings sent to installed base.
Description by February 2000.
vi) Intuit shall provide E-Stamp with the opportunity to rent lists
of QuickBooks Products, non-upgrade, non-Intuit Supplies
business customers under Intuit's then-current standard terms.
List available by May 2000, or earlier to the extent mutually
agreed by the parties.
vii) Intuit shall include a description of E-Stamp Service and
QuickBooks Product Integration in CD-ROMvelope for QuickBooks CD
product skus. Description by January 2000.
viii) Intuit has the option to use E-Stamp Service as a part of a
QuickBooks product promotion in direct mailings on mutually
agreed terms.
b) E-Stamp Obligations
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Subject to Intuit's approval and to Section 10:
i) E-Stamp has the option to include QuickBooks Service Logo in
marketing materials, packaging, and on other marketing
collateral, subject to Section 10 (Trademark Ownership and
License).
ii) E-Stamp has the option to include QuickBooks insert into E-Stamp
retail box.
iii) E-Stamp has the option to include recommendation/reference to
QuickBooks on their website.
2) Product Integration Programs
a) Intuit Obligations
i) Include access to E-Stamp service in areas of QuickBooks product
designated by Intuit for the purpose of driving awareness of the
E-Stamp Service in QuickBooks Products.
ii) Include access to the E-Stamp Sign Up Experience and the E-Stamp
Postage Buying Experience functionality in the QuickBooks
Product navigational areas, as designated by Intuit in its sole
discretion. Intuit shall consider in good faith any applicable
requests received from E-Stamp in a timely manner.
iii) Allow QuickBooks 2001 product customers to [***] directly
[***] from within QuickBooks 2001 product.
b) E-Stamp Obligations
i) Provide access to the E-Stamp Postage Buying Experience to
Customers and prospective Customers. Access by October 1999.
ii) Provide access to the E-Stamp Sign Up Experience to Customers
and prospective Customers through a Web page on the E-Stamp Site
that will be co-branded by Intuit and E-Stamp ("Co-Branded
Page"). The Co-Branded Page will be designed by Intuit and will
be hosted by E-Stamp. The contents of the Co-Branded Page will
be mutually agreed by the parties, but will in no event contain
any graphic or textual hyperlinks, promotions, logos or
advertising banners of any principal competitor of Intuit
specified in Schedule B as amended in accordance with the
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provisions of Schedule B. Access by October 1999.
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iii) To the extent that screens displayed to Customers during their
experience on the E-Stamp Site are framed by Intuit, such
experience will be limited to the E-Stamp Sign
*** 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.
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Up Experience and the E-Stamp Postage Buying Experience except
as may be mutually agreed by the parties in writing. Provided by
December 1999.
iv) At E-Stamp's expense, provide mutually agreed upon customized
development work and developer support for integration efforts,
including documentation or access to E-Stamp technical
resources. Beginning September 1999.
v) Provide compiled versions of key functionality that will be
integrated with QuickBooks to allow customers to print postage
directly onto forms and labels and to receive reporting and
summary information from within QuickBooks 2001 product.
Beginning May 2000.
vi) Provide maintenance releases to Intuit as necessary and
available.
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SCHEDULE B
Intuit Competitors
Peachtree
MYOB
DacEasy
Great Plains
Accpac
Simply Accounting
Business Works
Mas 90
NetLedger
ADP
Paycheck
BigStep
Geocities
Tripod
Microsoft and all companies in which Microsoft, to the best of E-Stamp's
knowledge, owns or controls at least 20% of the outstanding equity
Ariba
Intelisys
CommerceOne
NEBS (sells supplies)
The parties agree that from time to time Intuit may, upon adequate written
notice to E-Stamp, add to this list additional entities that market products
and/or services in competition with Intuit, subject to E-Stamp's then-existing
contractual obligations to such additional entities.
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SCHEDULE C
Support Response Requirements
1. Email Response Turn Around Time (TAT): 24 hours or less.
2. Inbound Telephone Calls Service Level: 80% of calls answered in 30 seconds
or less.
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SCHEDULE D
E-Stamp Site Performance
1. The E-Stamp Site, including all site functionality, will be up no less than
98% of the following times: 7 days/week, 24 hours/day.
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