TURBOTAX® ONLINE AFFILIATE AGREEMENT
This TurboTax Online Affiliate Agreement (the “Agreement”) establishes the terms and conditions for the TurboTax Online Affiliate Program (the “Affiliate Program”) of Intuit Consumer Group, Inc. (“Intuit”).
BY CLICKING ON THE “I AGREE” BUTTON AT THE END OF THE AFFILIATE PROGRAM APPLICATION, THE COMPANY NAMED IN THE APPLICATION (the “Company”) AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE AGREEING TO ITS TERMS.
In addition to any capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the meaning set forth below:
“Affiliate Information Site” shall mean the World Wide Web site where Intuit makes marketing and promotional content, dates, procedures, specifications and other relevant information about the Intuit Services available to its affiliates (including Company), including the Intuit Content and Intuit Marks.
“Co-Branded Microsite” shall mean a version of the TurboTax Web Site for the Intuit Services that is co-branded with both the Company Marks and Intuit Marks and located at a Uniform Resource Locator (URL) designated by Intuit, which page shall be displayed to a User upon linking from the Company Site to the Intuit Site.
“Company Content” shall mean content provided by Company to Intuit in the form of Company-approved language promoting Company products or services for publication on the exit page from the Intuit Services containing the Link to return Users to the Company Site.
“Company Deliverables” shall mean collectively the Company Marks, Company Content, and Company URLs Intuit will use to develop the co-branded version of the Intuit Services.
“Company Deliverables Deadline” for each Tax Filing Season shall mean November 16 of the previous calendar year. By way of example, the Company Deliverables Deadline for the 2007 Tax Filing Season is November 16, 2007.
“Company Marks” shall mean the Company trademarks and service marks that Company provides to Intuit to be included on the co-branded pages.
“Company Site” shall mean the World Wide Web site with its main page located at the URL specified in the Affiliate Program Application.
“Infringement” shall mean a circumstance where the services, materials, or information provided by a party pursuant to this Agreement infringes upon any copyright, trademark or service mark of a third party.
“Intuit Content” shall mean the promotional material and information relating to the Intuit Services in the form made available by Intuit through the Affiliate Information Site for Company’s publication on the Company Site to promote the Intuit Services.
“Intuit Marks” shall mean TurboTax┬« OnlineSM, EasyStep┬« and any other Intuit trademarks or service marks that Intuit makes available to Company on the Affiliate Information Site.
“Intuit Services” shall mean any of Intuit’s web-based TurboTax branded federal and state income tax preparation services and electronic filing services accessible via the Intuit Site. The Intuit Services are available from approximately January 15 to October 15 of each year.
“Intuit Site” shall mean the area of Intuit’s World Wide Web site where the Intuit Services are provided with its main page currently located at www.quicken.com/taxes
“Link” shall mean a hypertext and/or graphical link from the Company Site to the Intuit Site or from the Intuit Site to the Company Site.
“Losses” shall mean direct losses, costs, claims, damages, settlement payments, attorneys’ fees, liabilities, and penalties, court awards and other similar costs and expenses.
"Tax Content" shall mean the tax articles and tools that are hosted and published by Intuit on the Intuit Site, which may be accessed through the Company Site with links to the Intuit Site.
“Tax Filing Season” shall mean the period of time during which an individual tax return would normally be filed for the applicable Tax Year. By way of example, for Tax Year 2007 the “Primary Tax Filing Season” would occur from approximately January 15 through April 15, 2008, and the “Extended Tax Filing Season” would occur from approximately April 16 through October 15, 2008.
“Tax Year” shall mean the tax year (which, for an individual, is usually a calendar year) for which an individual tax return would normally be filed between January 15th and April 15th of the subsequent year.
“Usage Fees” shall mean the applicable fees payable by a User to use the Intuit Services as established by Intuit from time to time.
“User” shall mean a person who links directly from the Company Site to the Intuit Site and is identified by Intuit as originating from the Company Site through the Co-Branded Microsite for the session in which such person pays for the preparation of his or her U.S. federal or state personal income tax return by means of the Intuit Services.
1. COMPANY’S OBLIGATIONS.
. Company shall complete and submit the Affiliate Program Application to Intuit. Intuit may accept or reject any Affiliate Program Application in its sole discretion. Intuit shall notify Company via email if Company’s Application has been accepted.
1.2 Program Implementation on Affiliate Information Site
. Upon notification from Intuit that Company’s Affiliate Program Application has been accepted, Company shall register on the Affiliate Information Site with the username and password supplied by Intuit pursuant to Section 2.1 and provide the Company Deliverables to Intuit. Company shall provide to Intuit the information specified on the Affiliate Information Site (including Company Deliverables) at least five (5) business days prior to the date on which Company wishes to make the Co-Branded Microsite available to its customers. To ensure the Company Co-Branded Microsite is included in the initial TurboTax Online launch in mid-December of the applicable Tax Filing Season, Company must confirm registration and submit Company Deliverables on or prior to the Company Deliverables Deadline.
1.3 Testing of Pages and Links
. Within two (2) business days of notification from Intuit that the Co-Branded Microsite and other co-branded pages and related links are live, Company shall review and test such pages and Links. Company shall immediately notify Intuit of any issues identified during its testing. Intuit shall have five (5) business days to make any required modifications.
1.4 Promotion of Intuit Services
. Company shall actively promote the Intuit Services to its customers and site visitors during the Tax Filing Season. Company shall promote the Intuit Services using only the Intuit Content in the form provided on the Affiliate Information Site.
1.5 Company Site
. Company shall be responsible for the hosting and operation of the Company Site. Company shall not display the Intuit Content or any other promotional content in a way that implies that the Company Site is provided by, endorsed by, affiliated with or sponsored by Intuit (except for the Intuit Content).
1.6 Exclusive Promotion
. Company shall not offer or promote any other web-based or downloadable U.S. federal or state tax preparation or electronic filing service (“Competing Products”) during the Term. Notwithstanding Section 6 of this Agreement, Company shall not be paid any Revenue Share if it offers or promotes any Competing Products in violation of the foregoing covenant during the Initial Term or any Renewal Term. Nothing in this Agreement restricts in any way Intuit’s right, exercisable in its sole discretion, to select, display, advertise and promote any companies (and such companies’ products and services) in, on, or in connection with the Intuit Site or any other Intuit Web sites, products and services. Intuit shall not display third party advertisements on the co-branded pages of the Intuit Services.
2. INTUIT’S OBLIGATIONS.
2.1 Affiliate Information Site
. Intuit shall develop and publish the Affiliate Information Site. Intuit shall provide to Company a username and password to access the Affiliate Information Site within five (5) business days after Intuit accepts Company’s on-line Affiliate Program Application. In the event of any inconsistency between the terms of this Agreement and the content on the Affiliate Information Site, the terms and conditions of this Agreement shall control.
2.2 Development of Co-Branded Pages
. Intuit shall develop the Co-Branded Microsite using the Company Marks, and co-brand the designated pages of the Intuit Services with the Company Marks in a manner consistent with the description and illustrations provided on the Affiliate Information Site (referred to herein as the “co-branding” or “co-branded pages”). Intuit shall have sole control over the look and feel of the Co-branded Microsite, and its design and content are subject to change at Intuit’s sole discretion. All the co-branded pages shall have the Intuit Site’s look and feel. Subject to any express exceptions set forth in the Agreement, Intuit will have sole control over the “look and feel,” material and information of the Product Offering including, but not limited to, the display, appearance and placement of the parties’ respective names and/or brands, any advertising or offers, any promotional content or links, and any content and impression material.
2.2.1 The exit page from the co-branded pages will display the Company Content (at Company’s election) and a Link that will enable (but not require) a User to return to the Company Site. Intuit shall notify Company when the co-branded pages are live for testing.
2.3 Operation of Co-Branded Pages and the Intuit Site
. During the Tax Filing Season Intuit shall host the Co-Branded Microsite and provide access for Users to the Intuit Services via the Co-Branded Microsite; provided
, that if Intuit receives the Company Deliverables after the Company Deliverables Deadline, Intuit will provide access for Company Offerees to the Intuit Services beginning on the date which is the later of (i) five (5) business days after Intuit’s receipt of the Company Deliverables, or (ii) January 19 of the applicable Tax Filing Season. In the event that Company fails to deliver the Company Deliverables to Intuit, Intuit reserves the right to activate the Co-Branded Microsite displaying only Intuit Marks and Intuit Content. Intuit shall make the Intuit Services available to Users subject to the terms and conditions of Intuit’s standard usage agreement. Intuit shall be responsible for the operation of the Intuit Services and the Intuit Site. The Intuit Site shall reflect that it is operated by Intuit and shall not be designed in a way that implies that the Intuit Services are being provided by the Company (provided that the co-branding does not violate this provision)
3. SECURITY AND PRIVACY.
. Each party shall employ commercially reasonable security safeguards to protect customer information from loss, misuse and unauthorized alteration during its storage, processing and transmission, including the use of commercially available computer security products, as well as industry standard security procedures and practices.
. Each party shall comply with its respective privacy policies and statements in handling, using and disclosing any customer information.
4. PUBLICITY AND CUSTOMER COMMUNICATIONS.
. The parties hereby agree that any press, marketing or advertising releases of either party that refer to the other party or the other party’s products or services shall not be released or disseminated without the prior approval of the other party, and such approval will not be unreasonably withheld or delayed.
5. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSE.
. Each party shall retain all right, title and interest in and to its respective Marks, Content and other intellectual property worldwide, subject to the limited license granted to the other hereunder in connection with such party’s performance of this Agreement.
5.2 Limited License
. Each party (a “Licensor”) hereby grants to the other party hereto (a “Licensee”) a non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free and limited license to use its Marks and Content solely in connection with its marketing and promotion obligations under this Agreement. All such use shall be in accordance with each party’s reasonable policies regarding advertising and trademark usage as shall be established or changed from time to time in each party’s sole discretion upon written notice to the other. All usage by Licensee of Licensor’s Marks shall include the appropriate registered or unregistered trademark symbol and, where space reasonably permits, a legend stating that the “[Licensor’s Mark] is a registered trademark of [Licensor]” or a reference to the effect that third party marks are owned by their respective owners. Intuit’s current guidelines for the use of the Intuit Marks are published on the Affiliate Information Site.
5.3 Restrictions and Acknowledgements
. The Licensee hereby acknowledges and agrees that (i) the Licensor’s Marks and Content are owned solely and exclusively by the Licensor, (ii) except for the limited license granted pursuant to Section 5.2, the Licensee has no rights, title or interest in or to the Licensor’s Marks or Content, (iii) all use of the Licensor’s Marks or Content by Licensee shall inure to the benefit of Licensor. Licensee shall not apply for registration of the Licensor’s Marks (or any mark confusingly similar thereto) anywhere in the world, and shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Licensor’s Marks. Company agrees it shall not use "Turbo", "Intuit", or "Intui" in Company name. In addition Company agrees it shall not use, without Intuit’s written permission, which Intuit can deny at its sole discretion, the words TurboTax, Turbot, TurboTax Software, TurboTax Online, TurboTax for the Web, TurboTax Products, Turbo Tax, Tax Turbo, and any other misspellings or variations of TurboTax, as keywords or keyword phrases, in any search engine marketing (SEM), or any search engine that is currently available.
Upon the expiration or termination of this Agreement, each party shall immediately cease using the Marks or Content of the other, and shall remove such Marks and Content from their respective Sites, except as the parties may agree in writing.
|Revenue Share Percentage
|TurboTax Desktop Products for Download Only
|TurboTax Live (Deluxe, Premier and Self-Employed Only)
6.1 Revenue Share
. For Company’s promotion of the Intuit Services pursuant to this Agreement, Intuit shall pay Company a “Revenue Share Fee” of the Net Usage Fees actually collected by Intuit from Users during the applicable Primary Tax Filing Season as indicated in the table above; provided that Company shall not be paid any Revenue Share Fee if such fees otherwise payable to it are less than three hundred dollars ($300.00). As used in this Agreement, “Net Usage Fees” means the aggregate Usage Fees actually collected by Intuit from Users during the applicable Primary Tax Filing Season less any promotional discounts, coupons, refunds, sales tax, rebates, bad debts or other adjustments. Intuit reserves the right to change the Usage Fees for the Intuit Services at any time in its sole discretion without prior notification to Company. Intuit shall pay the Revenue Share Fee to Company on or before June 15 of the applicable Tax Filing Season. Intuit does not make any representation or warranty of the number of tax returns that will be completed and filed using the Intuit Services, or that any Revenue Share Fee will become payable to Company under this Agreement.
6.1.1 At the end of the Initial Term or any Renewal Term, Intuit may, in its sole discretion, change the amount of the Revenue Share Fee paid to Company. Intuit shall notify Company regarding any change in the Revenue Share Fee.
6.1.2 Company understands and acknowledges that Intuit, through the Intuit Tax Freedom Project and other arrangements with government entities, makes the Intuit Services available to certain taxpayers. Intuit Services are provided to these taxpayers through a non-co branded site. Company shall not receive any Revenue Share or any other compensation for Intuit Services that are provided through the Intuit Financial Freedom Foundation to Users.
6.1.3 Company understands that the Revenue Share Fee applies only to the preparation of tax returns and electronic filing, but does not apply to refund transfers, live tax advice, audit defense, professional tax review, and other products or services that may be offered in conjunction with the Intuit Services.
. Company will have access to Intuit's online reporting of the number of Users of the Intuit Services.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES.
7.1 Compliance Matters
. Each party shall comply with all applicable laws governing its performance of and activities under this Agreement. Company is and will be solely responsible for any recommendations or advice it may offer to its customers.
7.2 Mutual Representations and Warranties
. Each party shall provide any services required by it pursuant to this Agreement in a workmanlike manner. Each party hereto represents and warrants to the other party that: (i) the execution, delivery, and performance of this Agreement shall not conflict with or result in any breach of or a default under, any material agreement, instrument or undertaking to which it is a party or by which any of its property is bound; (ii) that the use, reproduction, distribution, transmission, or display of its respective Content and Marks pursuant to this Agreement shall not constitute an Infringement, be defamatory or violate any third party’s rights of publicity, privacy or personality.
8. INDEMNITIES AND LIMITATIONS.
8.1 Mutual Indemnity
. Each party (an “Indemnifying Party”) agrees to defend at its expense, indemnify, and hold the other party and its and their directors, officers, employees and agents (the “Indemnified Party”), harmless from and against Losses resulting from any claims, suits, actions or other proceedings (collectively, “claims”) made by a third party to the extent that such claims arise from or relate to: (i) a violation of applicable law asserted against the Indemnified Party to the extent caused by the acts or omissions of the Indemnifying Party in the course of its performance of this Agreement, (ii) a breach of or inaccuracy in the Indemnifying Party’s representations and warranties set forth in this Agreement, or (iii) the Indemnifying Party’s error or omission in the performance of or failure to perform its covenants set forth in this Agreement; except to the extent such claims result from the Indemnified Party’s acts or omissions, or materials provided by it, provided the parties are notified promptly in writing of the claim and each party has sole control over its defense or settlement, and the other party provides reasonable assistance in the defense of same. Further, Intuit agrees to defend, at its expense, indemnify, and hold Company and its directors, officers, attorneys, agents, employees and representatives harmless from and against any and all loss resulting from any claim made by a third party that Company’s and its employees’ use of the Intuit Services or Intuit Marks or Content is an Infringement.
8.2 Except to the extent of its applicable indemnification obligations pursuant to Section 8.1, neither party shall be liable to the other party (including such party’s affiliated entities) for any incidental, indirect, special or consequential damages, loss of profits or revenue, loss of data, or interruption of business in any way arising out of or related to this Agreement, regardless of the form of action, whether in contract, tort, (including negligence) strict product liability or otherwise, even if any representative of such party has been advised of the possibility of or could have foreseen such damages, and any liability for damages is limited to, and will not exceed One Hundred Thousand Dollars ($100,000).
9. WARRANTIES AND DISCLAIMERS.
The parties represent and warrant that the use of its intellectual property rights by the other party pursuant to this Agreement shall not infringe any intellectual property right of any third party and that there is no litigation or claim pending or, to either party’s knowledge, threatened relating hereto. Except as expressly provided in this agreement, neither party makes any warranties either express or implied, as to the services, products, materials, or information provided hereunder, and hereby expressly disclaims all implied warranties including those of merchantability and fitness for any particular purpose.
10. TERM AND TERMINATION.
. This Agreement will commence on the date the Affiliate Program Application is accepted by Intuit and will continue in force (unless sooner terminated pursuant to Section 10.2 below) until the last day of the Extended Tax Filing Season for the applicable Tax Year (the “Initial Term”). The Agreement will automatically renew for additional periods of one (1) year (each a “Renewal Term”) unless either party notifies the other of its intention to terminate the Agreement at least thirty (30) days before the conclusion of the Initial Term or the then current Renewal Term.
10.2 Termination Rights
. Upon the occurrence of any of the following events of default, after giving written notice to the defaulting party and following the expiration of the cure period set forth in Section 10.3, the non-defaulting party may declare the other party to be in default of this Agreement and may immediately terminate this Agreement: (1) where the defaulting party is in material breach of this Agreement; (2) where the defaulting party has admitted that it is unable to pay its debts as they mature, or makes an assignment for the benefit of its creditors; or (3) where the defaulting party has filed a petition or application under any bankruptcy act, receivership statute or like law or statute as they now exist or may be subsequently amended, or had such a petition or application filed by any third party against it, where such petition or application is not dismissed or otherwise favorably resolved within sixty (60) days.
10.3 Notice and Cure Period
. Upon receipt of a notice of default delivered pursuant to Section 10.2 containing a reasonably detailed statement of the alleged default, the alleged defaulting party shall have a period of thirty (30) days in which to cure the alleged default. If the alleged default has not been cured during the foregoing period, then the non-defaulting party may terminate this Agreement immediately following expiration of the foregoing cure period upon further written notice to the defaulting party. During any notice and cure period, both parties shall continue to be bound by all the terms and conditions of this Agreement.
10.4 Post-Termination Actions
. In the event of termination or expiration of this Agreement, each party shall (i) promptly disable the Links between the Intuit Site and the Company Site and remove any material or information relating to the promotions and rights contemplated by this Agreement; (ii) provide any final reports for periods falling within the Initial Term or any Renewal Term, and pay any amounts owed as of the date of termination, or which accrue thereafter, in connection with this Agreement; (iii) cooperate with the other party in performing any other activities reasonably required to effect the termination of this Agreement, including the provision of reasonable notification to the customers of Company and Intuit that the Intuit Services will no longer be available through Company.
Notwithstanding anything to the contrary contained herein, the rights and obligations of the parties pursuant to Sections 3, 4, 5.1, 5.3, 7 8, 9, 10 and 11 herein shall survive any termination or expiration of this Agreement.
11.1 Entire Agreement
. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings, letters of intent or other agreements, written or oral, regarding such subject matter.
No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
11.2 Applicable Law; Severability; Attorneys' Fees
. This Agreement will be governed by California law as applied to agreements entered into and to be performed entirely within California without regard to its choice of law or conflicts of law principles. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The prevailing party upon final adjudication or resolution of any action or proceeding to interpret or enforce this Agreement will be entitled to reimbursement of its legal expenses, including reasonable attorneys’ fees.
. All notices required under this Agreement shall be in writing and shall be considered given (i) when delivered personally, (ii) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid, (iii) one (1) business day after dispatch, when sent via a commercial overnight carrier, fees prepaid, (iv) upon delivery when sent by facsimile transmission confirmed by first class mail, or (v) if sent via email. Notice to Intuit shall be directed to Intuit Consumer Group, Inc., Attn: Senior Vice President, Consumer Tax, 7535 Torrey Santa Fe Road, San Diego, CA 92129, Phone: (858) 215-8000, Fax: (858) 215-7385. Notice to Company shall be directed to the address listed in the Affiliate Program Application.
11.4 No Assignment; No Third Party Beneficiaries
. Company shall not assign its rights or delegate its obliga┬ştions under this Agreement without the prior written consent of Intuit, which consent shall not be unreasonably withheld; provided, however, Intuit may freely assign its rights and obligations hereunder; and provided that either party may assign its rights and obligations hereunder to an Affiliated Entity; and either party may engage subcontractors to provide supporting services to it, except that such subcontractors shall be subject to the applicable provisions of this Agreement (e.g., confidentiality obligations) and that such engaging party shall be responsible to the other party hereto for the performance and acts of its subcontractors. Any attempt to assign this Agreement other than as permitted above will be null and void. This Agreement shall be binding on all successors and permitted assigns of the parties. Except for indemnitees and permitted assigns, this Agreement does not create, and shall not be construed as creating, any rights enforceable by any person or entity not a party to this Agreement or an Addendum executed and delivered pursuant hereto.
11.5 Force Majeure
. Neither party shall be liable to the other for a failure or delay in its performance of a required obligation pursuant to this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, Internet or telecommunications failures, or other causes beyond such party’s reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible and, provided further, that either party may terminate this Agreement upon delivery of written notice to the other party if such condition continues for a period in excess of sixty (60) days.