CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.04

AMENDED AND RESTATED SERVICES AGREEMENT

         THIS AMENDED AND RESTATED SERVICES AGREEMENT (“Agreement”) is effective as of September 11, 2001 (the “Effective Date”) by and between Intuit Inc., a Delaware corporation, with offices at 2535 Garcia Avenue, Mountain View, CA 94043 (“Intuit”), and Ingram Micro Inc., a Delaware corporation, with principal offices located at 1600 East St. Andrew Place, Santa Ana, California 92705 (“Vendor”).

Preamble

         Vendor and Intuit are parties to a Services Agreement (“Initial Agreement”) pursuant to which Vendor agreed to provide Intuit with certain services, including inventory management, order management and related services. Vendor and Intuit now seek to amend and restate the Initial Agreement in its entirety in accordance with the terms and conditions set forth in this Agreement.

NOW THEREFORE, for good and valuable consideration received and to be received by Vendor, Vendor and Intuit agree as follows:

Terms and Conditions

1.     Definitions. For purposes of this Agreement, the following terms shall have the definitions set forth in this Section 1:

(a)  “Annualized Inventory Turn” shall refer to the number calculated by dividing Ingram’s gross monthly shipments of Current Products (as defined herein) by the average daily number of Current Products held by Vendor during such month, and then multiplying the quotient by twelve (12).

(b)  “Business Day” shall mean Monday through Friday, excluding New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day, or in the event any of these holidays fall on a Saturday or Sunday, the day on which the holidays observed.

(c)  “Current Products” shall mean the products in the Inventory that, at the time the Annualized Inventory Turns are being calculated, are being offered to Customers and shall exclude Promotional Products (as defined herein).

(d)  “Customers” shall mean Intuit’s customers.

(e)  “Intuit” shall mean Intuit and any other Intuit affiliate with respect to which Intuit (i) owns fifty percent (50%) or more of the outstanding stock or other equity interests, or otherwise directs the day to day management of through a written management agreement (including, but not limited to, apps.com, Inc., Boston Light Software Corp., Computing Resources, Inc., EmployeeMatters, Inc. d/b/a QuickBooks Employee, Lacerte Software Corporation, Quicken Loans Inc., and Turning Mill Software, Inc.), and

(ii)  identifies in a written notice given to Vendor (provided that in the event that the addition of such Intuit affiliate results in a material change with respect to the cost of the Services to be provided hereunder, then such addition shall be considered a request for a change in the scope of services subject to Section 3(c)). With respect to the Intuit affiliates specifically referenced in this Section 1(d), by execution of this Agreement, Vendor acknowledges receipt of written notice that such affiliates are included in the definition of Intuit.

(f)  “Intuit Supplier” shall mean manufacturers or other producers or distributors of Inventory from which Vendor may be required to arrange for the transportation and delivery of such Inventory to the Facilities or Customers.

(g)  “Inventory” shall mean product inventory acquired or owned by Intuit that is made available to Vendor for storage and order processing under the terms of this Agreement.

(h)  “Non-Current Products” shall mean all Intuit products in the Inventory that, at the time the Annualized Inventory Turns are being calculated, are no longer being offered to Customers.

(i)  “Promotional Products” shall mean non-standard Intuit products in the Inventory that are intended to be distributed on a promotional basis (e.g., 90 day trials distributed in CD sleeves).

(j)  “Services” shall mean the inventory management, order management and related services described in Section 3, Exhibit A and the Statement of Work (as defined herein).

2.     Independent Contractor. In accordance with the mutual intentions of Intuit and Vendor, this Agreement establishes between them an independent contractor relationship, and all of the terms and conditions of this Agreement shall be interpreted in light of that relationship. The parties do not intend to create a partnership or employment relationship between Intuit and Vendor, and nothing in this Agreement shall be construed to create such a relationship between the parties.

3.     Services.

(a)  The Services and Service Level Requirements. Vendor agrees to perform, on behalf of Intuit, the Services set forth in Exhibit A as such Services are more fully described in a separate statement of work agreement as may be negotiated between the parties from time to time (the “Statement of Work”). All such Services shall be performed in the manner described herein and in accordance with the fee schedule attached hereto as Exhibit B and the service level requirements set forth in Exhibit C and the Statement of Work. Vendor agrees to begin performing the Services as of September 10, 2001 (the “First Shipment Date”), provided that Vendor shall perform

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any preparation necessary to be able to perform as of the First Shipment Date during the period following the Effective Date and prior to the First Shipment Date.

(b)  Changes to Scope of Services. Intuit may request in writing changes that affect the scope of the Services to be performed hereunder. If the parties mutually agree to such a change, then Vendor promptly shall notify Intuit if it believes that the change should result in an adjustment in the fees to be paid to Vendor for the Services. The parties shall then negotiate in good faith a reasonable and equitable adjustment to the applicable fees and/or the Statement of Work. Vendor shall continue to perform the Services pursuant to the existing Statement of Work, and shall not be bound by any change requested by Intuit, until such change has been agreed upon in writing by the parties.

(c)  Program Managers. Each party agrees that its principal point of contact for all matters relating to the Services shall be its “Program Manager” designated in the Statement of Work. Each party may designate an alternate Program Manager by written notice to the other party, provided, however, that each such party consults with the other party when selecting an alternate Program Manager.

(d)  Personnel. During the Term, as more fully described in the Statement of Work, Vendor shall dedicate a minimum of [*] full-time Vendor employees to the provision of the Services. Vendor shall consult with Intuit regarding the selection of and any material changes in the composition of the managerial-level employees who are dedicated to the performance of the Services.

(e)  Inventory. Vendor shall receive, store and process the Inventory in the manner set forth in this Agreement and the Statement of Work. Vendor will use and manage the Inventory only as necessary to perform the Services and as directed by Intuit in writing. If Intuit authorizes Vendor to use other Intuit materials in performing the Services, Vendor agrees to use such materials solely in connection with the performance of the Services. In the event that Vendor uses, distributes or otherwise disposes of the Inventory or other Intuit materials, or permits any third party to use, distribute or otherwise dispose of the Inventory or other Intuit materials other than as set forth in this Agreement, the Statement of Work or authorized in writing by Intuit, then, in addition to any other remedies that may be available to Intuit hereunder, Vendor shall, upon written notice from Intuit (i) immediately cease such unauthorized use, distribution or disposition, (ii) to the extent that any such unauthorized use has the potential to result in a material loss or security threat to Intuit, notify Intuit within three (3) Business Days of the results of its investigation surrounding such circumstances, and (iii) within [*] Business Days implement a plan that is reasonably certain to protect against similar occurrences in the future. Vendor shall comply with all applicable laws, rules and regulations with respect to the handling and disposition of the Inventory, including, without limitation, all environmental and occupational and employment laws, rules and regulations.

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(f)  Controls Against Theft. Vendor agrees to implement and maintain reasonable controls against theft or misappropriation with respect to the Inventory and any other Intuit materials under Vendor’s control. In fulfilling this obligation, Vendor shall utilize controls that are at least equivalent to the controls that it maintains for other similarly sensitive products or components under its control, provided that such controls are at least comparable to the prevailing standards used within the industry to control against theft or misappropriation of inventory similar to the Inventory.

(g)  Cooperation. Vendor acknowledges and agrees that, in order to perform the Services, it will be necessary for Vendor to work directly with Intuit’s manufacturers and other third party service providers. Vendor agrees to cooperate with such manufacturers and third party service providers, including, without limitation, by managing shipments and returns and processing claims for lost Inventory on behalf of Intuit.

4.     Shipping Costs; Facilities.

(a)  Shipping Costs. Vendor shall be solely responsible for arranging and managing all transportation and shipping associated with the delivery of Inventory to the Facilities (“Inbound Delivery”) as well as the delivery of the Inventory from Vendor’s Facilities to Customers (“Outbound Delivery”) as stated in the Statement of Work, including, without limitation, the selection and management of carriers, and the processing of all records and claims with respect to such transportation. Notwithstanding the foregoing, (i) Intuit shall have the right to direct Vendor to refrain from shipping Inventory with carriers that have an unacceptably high number of delays or other performance deficiencies, and (ii) Vendor agrees to utilize such carriers and following such shipping instructions as may be directed by Customers that have their own transportation requirements. Intuit shall be responsible for all shipping costs associated with Inbound Inventory. All shipping costs for Outbound Delivery shall be based on Vendor’s freight rate schedule then in effect, the current version of which is set forth in Exhibit B. In the event of a change in a carrier’s freight rates or discounts offered to Vendor, Vendor may change the freight rate schedule by notifying Intuit not less than thirty (30) days prior to the effective date of the change. Intuit shall pay Vendor for shipping costs in accordance with Section 7.

(b)  Facilities. Vendor shall use the facilities identified in the Statement of Work when performing the Services (each a “Facility”). Vendor shall be fully responsible for the maintenance and operation of each Facility, and shall bear all costs and expenses associated with securing and maintaining the Facilities, including, but not limited to, lease costs, improvements, insurance costs, utilities, communication expenses, security and repair and maintenance costs. Intuit or its agent shall have the right, upon reasonable advance notice, to inspect the Facilities and the Inventory to verify Vendor’s compliance with this Agreement and the Statement of Work; during any such inspection, Intuit shall be entitled to count Inventory, monitor Vendor’s Inventory handling procedures and review applicable bills of lading. Vendor may use other Facilities to

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perform the Services; provided, however, that Vendor [*]. In the event that the parties are unable, through such good faith negotiations, to agree within forty-five (45) days following receipt of written notice of such closure on appropriate pricing adjustments or other measures, then Intuit shall have the right to terminate this Agreement and the Statement of Work without liability.

5.     Electronic Sharing of Information and Reporting.

(a)  Vendor shall ensure that its information management systems relating to the Services (e.g., order processing and inventory management systems) provide the electronic information that is required in the Statement of Work.

(b)  Vendor shall provide Intuit with a set of performance, utilization and status reports as further described in the Statement of Work, which reports shall be provided by Vendor to Intuit in accordance with the delivery procedures and format(s) specified in the Statement of Work.

6.     Reviews.

[*]

(b)  Quarterly Reviews. Not less than twenty (20) days following the end of each calendar quarter, designated team members from both parties will meet and confer (via conference call, if necessary) to review the business and performance during the past calendar quarter. These meetings (the “Quarterly Reviews”) will include a performance review, continuous improvement projects, and management status reviews, cost reduction initiatives and other operational areas and issues. In connection with each Quarterly Review that occurs on or after January 1, 2002, the parties shall gather the data and rate Vendor’s performance in accordance with the a Quarterly Review form (the “Quarterly Review Form”) that measures Vendor’s compliance with the service level requirements set forth in Exhibit C. Such Quarterly Reviews may result in the payment of additional compensation based on such performance ratings (“Quarterly Review Payouts”). The maximum amount of such Quarterly Review Payouts will be $[*] annually, and $[*] of such maximum amount will be allocated to payouts that may be earned by Vendor based on Vendor’s performance ratings relating to [*]. On or before January 1, 2002, the parties will mutually agree upon (i) the content and format of the Quarterly Review Form, (ii) the scoring process to be used for the Quarterly Review Form to determine the amount (if any) of the Quarterly Review Payouts to be paid to Vendor, and (iii) the allocation of the remaining $[*] of the maximum annual amount of the Quarterly Review Payouts to the remaining areas (i.e., [*]) of Vendor’s performance that are rated on the Quarterly Review Form and for which payouts may be earned by Vendor.

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7.     Compensation and Payment.

(a)  Subject to the performance by Vendor of its obligations set forth in this Agreement and the Statement of Work, and except as otherwise provided herein or therein, Intuit will pay Vendor for the performance of the Services in the amounts and in accordance with the schedule specified in Exhibit B. No compensation shall be paid for services rendered by Vendor unless the Services are set forth in the Statement of Work. Vendor shall invoice and Intuit shall pay for the Services in accordance with this Section 7, [*], and (ii) comply with the terms contained therein with regard to the payment and reporting relating to the Services.

[*]

(c)  Vendor shall have the right, in accordance with the warehouse storage rates set forth in Exhibit B, to charge Intuit for the warehouse storage of all Non-Current Products and/or Promotional Products that are not shipped from Vendor’s Facilities within ninety (90) days from the date such Non-Current and/or Promotional Products arrive at Vendor’s Facilities.

(d)  Intuit shall pay Vendor a one-time fee of [*] dollars ($[*]) for fixed costs associated with Vendor’s preparations to provide the Services. In no event shall Intuit be responsible for the payment of any additional fixed costs incurred during the period between the Effective Date and the First Shipment Date (regardless of whether such First Shipment Date occurs on the date set forth in the Statement of Work or at sometime thereafter, as mutually agreed upon by the parties). Following the First Shipment Date, Vendor will submit monthly invoices for the fixed costs outlined in Exhibit B. Vendor will submit separate [*] invoices for (i) freight costs incurred for shipping Inventory to Customers, (ii) supply costs, and (iii) variable costs; each such invoice shall set forth, in reasonable detail, descriptions of the costs incurred during the preceding week, the calculation of the costs related thereto, prior approved disbursements or out-of-pocket expenses then due (if any), and such other information as may be reasonably requested by Intuit. Vendor shall invoice Intuit for travel expenses in accordance with Intuit’s then-current reimbursable expenses guidelines. Vendor will send all invoices to Intuit Inc., Accounts Payable, M.S. 247, P. O. Box 391296 Mountain View, CA 94039-1296, or to such other address as Intuit may designate from time to time. All invoices must reference the number and date of this Agreement.

(e)  Except as otherwise provided in this Agreement, all undisputed payments will be made by Intuit within forty-five (45) days after receipt of the applicable invoice, and shall be sent to Vendor at its address specified in the invoice. In the event that Intuit disputes any invoice rendered or amount paid, Intuit promptly will notify Vendor in writing and the parties shall work together to resolve such dispute expeditiously, provided that the time for payment of the disputed amount on the invoice shall be extended until resolution of the dispute.

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(f)  Vendor shall separately detail in each invoice provided under this Agreement any applicable taxes for goods or services, and shall separately enumerate each category of taxes that Intuit may be required to pay Vendor in connection with the performance of the Services (e.g., sales, use, etc.). Vendor will be responsible and shall pay any taxes based on Vendor’s net income. Vendor will reimburse and indemnify Intuit for any such taxes and contributions and interest and penalties that Intuit may be compelled to pay on account of Vendor’s non-payment of such taxes.

(g)  Vendor agrees that the Inventory and any other Intuit materials provided by Intuit hereunder shall remain the property of Intuit. Vendor shall at all times hold the Inventory and any other Intuit materials free and clear of all liens, claims, and encumbrances, except such liens, claims and encumbrances of third parties that are unrelated to the Services, Vendor or its employees and contractors.

(h)  Vendor will maintain complete and accurate records relating to any fees and payments charged or made in connection with the Services provided under this Agreement. Up to a maximum of two times in any calendar year, Intuit may audit the books, systems, processes and records of Vendor relating to Vendor’s fulfillment of its obligations under this Agreement at Intuit’s expense during normal business hours. Such audit shall be for the purpose of assuring that the Vendor’s performance is in accordance with its obligations under this Agreement and the Statement of Work. Each audit will be conducted in a manner designed to minimize disruption to Vendor’s normal business and shall be conducted on a non-look back basis, i.e. periods to be audited shall exclude periods already audited. In the event Intuit discovers a performance deficiency during an audit, Intuit’s remedy will be as follows: (i) Intuit shall notify Vendor in writing of the deficiency within fourteen (14) days of discovery; and (ii) Vendor will have ten (10) days after receipt of such notice to prepare a plan to correct the deficiency, and twenty (20) days after receipt of such notice to complete correction of the deficiency. Notwithstanding anything to the contrary contained herein, Intuit retains the right to pursue any and all remedies available to Intuit under this Agreement, including, but not limited to, the right to terminate this Agreement under Section 8(b) and any remedies available to Intuit under law or equity.

8.     Term/ Termination.

(a)  Unless otherwise terminated in accordance with this Agreement, the term of this Agreement shall begin on the Effective Date and will continue for a period of three (3) year(s) after the Effective Date (the “Term”). Vendor shall begin and complete the Services on the dates specified in the Statement of Work.

(b)  Either party may terminate this Agreement (i) due to a material breach of this Agreement or the Statement of Work by the other party if such material breach remains uncured for a period of thirty (30) days following receipt of written notice by the breaching party; and (ii) by giving (30) days’ written notice to the other party in the event

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of: (A) any sale or transfer of all or substantially all of such other party’s assets; or (B) any acquisition of a controlling interest in such other party’s voting stock.

(c)  Intuit reserves the right to terminate this Agreement if Vendor fails to comply with any of the performance requirements set forth in the Service Level Attachment, attached hereto as Exhibit C. The termination right granted to Intuit under this Section 8(c) shall not limit or prevent Intuit from terminating this Agreement for any other basis permitted under this Agreement. In addition, the rights and remedies set forth in this Section are in addition to the corrective actions and specific remedies set forth in the Exhibit C, which shall be cumulative. Intuit’s right to terminate pursuant to this Section 8(c) shall be subject to the following procedure:

         (i)  Intuit may notify Vendor in writing of any performance deficiencies within fourteen (14) days of receipt of the monthly report regarding performance. Vendor will have ten (10) days after receipt of such notice to prepare a plan to correct the deficiency, and twenty (20) days after receipt of such notice to complete correction of the deficiency.

         (ii)  Intuit will have the option to terminate this Agreement if (i) Intuit gives more than one (1) notice of deficiency relating to substantially the same performance level requirement set forth in Exhibit C within any twelve (12) month period during the Term, (ii) Vendor fails to prepare a plan to correct a deficiency within ten (10) days or to fully implement a correction to a deficiency within twenty (20) days of receipt of any notice of deficiency, or (iii) Intuit issues three (3) or more notices of deficiency during any consecutive eighteen (18) month period (regardless of whether such notices relate to the same or different performance level requirements). Intuit’s termination right under this Section 8(c) may be exercised upon thirty (30) calendar days from the date of such notice, and Vendor shall have no further right to cure any such deficiency.

(d)  Either party may terminate this Agreement for convenience, without cause, upon at least one hundred eighty (180) days’ prior written notice to the other party.

(e)  In the event of an early termination of this Agreement, Intuit shall compensate Vendor for the Services provided on or before the effective date of the termination and shall compensate Vendor for any approved disbursements and out-of-pocket expenses reasonably incurred by Vendor in connection with this Agreement. Upon termination or expiration of this Agreement, or at any prior time upon the request of Intuit, Vendor will promptly deliver to Intuit or its designee, all Inventory in its possession and all Confidential Information and Materials (as hereinafter defined) Vendor agrees not to retain any copies of Confidential Information or Materials after the termination or expiration of this Agreement. All Inventory shall be returned in substantially the same condition as it was received by Vendor. Notwithstanding the foregoing, if Intuit or Vendor terminates this Agreement in accordance with Section 8, Intuit shall be responsible for the costs of removing the Inventory and delivering it to a new location.

(f)  Prior to the effective date of the termination or expiration of this Agreement, Vendor and Intuit shall develop a mutually acceptable plan to permit Intuit to transition

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the Services in a seamless manner to a succeeding service provider. Vendor agrees to provide reasonable assistance to Intuit in the provision any transition assistance, including, but not limited to, relocation of Inventory, employment of full-time staffing necessary for management of the Inventory transition plan, technical assistance in transitioning and integrating existing databases and information technology systems with alternative solutions, assistance in transitioning to alternative transportation providers, managing Customer service responsibilities transition including returns processing, and providing a dedicated program manager for a period of thirty (30) days following the relocation of the Inventory.

(g)  The provisions of Sections 7, 8(e), 8(f), 8(g), 11, 12, 13, 14, 15, 16 and 18 as well as corresponding provisions of any of the Exhibits, will survive any termination or expiration of this Agreement.

9.     Business Continuity.

(a)  Vendor shall (i) be responsible for business continuity of operations within the scope of the Services being provided; (ii) within thirty (30) days after the Effective Date, submit to Intuit for approval a business continuity plan in a mutually agreed upon format; and (iii) update the business continuity plan, subject to Intuit’s approval, to reflect changes in technology and industry standards on an annual basis.

(b)  Vendor shall provide Intuit reasonable assistance in Intuit’s assessment of Intuit’s business continuity requirements and provide, for Intuit’s approval, a set of alternatives for the development of a viable Intuit business continuity program, and the estimated fees associated with each alternative.

(c)  Vendor shall immediately provide Intuit with a notice of a disaster and, upon the occurrence of a disaster at a site at which Vendor performs all or part of the Services, use best efforts to implement the business continuity plan for such site.

(d)  Vendor shall use its best efforts to restore the Services immediately, but in any event within the period of time set forth in the business continuity plan approved by Intuit. In the event of a disaster, Vendor shall not charge Intuit any fees in excess of the fees set forth in Exhibit B for Vendor to perform the actions outlined in the mutually agreed upon business continuity plan. Whenever a force majeure or a disaster causes Vendor to allocate limited resources between or among Vendor’s customers, Intuit shall receive no less priority in respect to such allocation than any of Vendor’s other customers.

10.     Preferred Logistics Provider. Subject to the performance by Vendor of its obligations hereunder, Intuit agrees that Vendor shall be Intuit’s preferred logistics provider throughout the Term such that if Intuit, including any of its business units, desires to outsource any freight and shipping management, inventory logistics or similar order fulfillment requirements, Intuit will advise Vendor of the opportunity (with at least as much notice as it provides other potential service providers) and permit Vendor to

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present a proposal to perform such services. In the event that Vendor proposes to perform the requested services at the same fee and terms (or better) as other potential service providers, Intuit agrees that it will utilize Vendor with respect to such services. Notwithstanding the foregoing, neither Intuit nor any of its business units shall be required to provide Vendor with the opportunity to make a proposal with respect to freight, shipping, inventory logistics or similar fulfillment requirements where (i) Intuit obtains such services together with other services, or (ii) such services are de minimus and/or Intuit elects not to engage in a competitive bidding process with respect to such services.

11.     Ownership. As between the parties, each party shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights), in its respective trademarks, service marks, trade names, logos, technical notes, technical documentation, scripts, software documentation, training materials, Confidential Information (as defined herein) and any other materials supplied by one party to the other or acquired by one party, on the other’s behalf, under this Agreement, and all legally protectable elements, derivative works, modifications and enhancements thereto (the “Materials”). Nothing in this Agreement shall effect a transfer of copyright rights from either party to the other. Intuit shall retain all right title and interest in the Inventory, including without limitation, any software therein.

12.     Confidential Information.

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

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

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disclosure; or on a “need-to-know” basis under an obligation of confidentiality to its legal counsel and accountants.

(c)  Each party acknowledges and agrees that its breach of the provisions under this Section 12 will result in irreparable harm to Intuit and that Intuit will have the right to enforce this Agreement and any of its provisions by injunction, specific performance and/or other equitable relief without prejudice to any other rights and remedies that Intuit may have.

(d)  Nothing in this Agreement shall relieve any party of any of its obligations under any separate non-disclosure agreement between the parties, including any obligation with respect to procedures for handling customer data or other similarly sensitive information. Vendor agrees to comply with the Security Requirements agreement as in effect from time to time (the current version of which is attached as Exhibit F); provided that Vendor will not be obligated to comply with any changes to the Security Requirements unless Intuit provides Vendor with written notice of such changes. References in Exhibit F to “Company” shall be deemed to refer to Vendor.

(e)  All Customer information provided by Intuit to Vendor, or obtained by Vendor from the Customers during the course of performing the Services on Intuit’s behalf (“Customer Information”), including, without limitation, name, phone number, e-mail address, delivery address, company name and billing address, shall be considered Confidential Information for purposes of this Agreement, unless the Customer Information falls within in one of the exceptions stated in Section 12(a). Vendor agrees that, except to the extent necessary to fulfill its obligations hereunder, it will not use any Customer Information for any purpose.

13.     Representations and Warranties.

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

(b)  Vendor represents and warrants that any and all Services rendered under this Agreement shall be performed by Vendor in accordance with the highest standards of competence within Vendor’s industry. Vendor represents and warrants that to the extent it must perform the Services under this Agreement at Intuit’s facilities, it will do so

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in accordance with Intuit’s performance standards and policies attached hereto as Exhibit G. Vendor shall notify Intuit in writing in advance of Vendor’s desire to retain any subcontractors to support the performance of the Services, but only in such instances when such subcontractors shall be assisting Ingram in the performance of services solely for Intuit. Intuit reserves the right, in its sole discretion, to disapprove such retention. Any such delegation of Vendor’s duties to any subcontractor approved by Intuit shall not relieve Vendor of its obligations under this Agreement.

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

14.     Indemnification.

(a)  Vendor agrees to defend, indemnify and hold Intuit and its affiliates, and all of their respective officers, directors, agents and employees, harmless from and against any and all claims, including liabilities, actions, judgments, costs, and expenses and reasonable attorneys’ fees (collectively “Claims”), asserted by a third party arising out of or related to: (i) any breach or alleged breach of any of Vendor’s representations and warranties hereunder; (ii) Vendor’s negligent acts, omissions and/or willful misconduct in supplying the Services under this Agreement; (iii) any obligations imposed by law with respect to any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with any payments made to Vendor for the rendering of Services hereunder; (iv) any claim that the Services infringe or violate any third party’s copyright, U.S. patent, trade secret, or trademark, or other intellectual property right; or, (v) any actual, alleged or contributory patent or copyright infringement, misappropriation of Confidential Information, or violation of other intellectual or proprietary rights related to the provision of the Services.

(b)  Intuit agrees to defend, indemnify and hold Vendor and its affiliates, and all of their respective officers, directors, agents and employees, harmless from and against any and all claims, including liabilities, actions, judgments, costs, and expenses and reasonable attorneys’ fees, asserted by a third party arising out of or related to: (i) any breach or alleged breach by Intuit of any of Intuit’s representations and warranties hereunder; (ii) the negligent acts, omissions and/or willful misconduct of Intuit in using the Services provided under this Agreement; (iii) any claim that the Inventory infringes or violates any third party’s copyright, U.S. patent, trade secret, or trademark, or other intellectual property right, or (iv) any actual, alleged or contributory patent or copyright infringement, misappropriation of Confidential Information, or violation of other intellectual or proprietary rights related to the Inventory.

(c)  The party seeking indemnification under Section 14(a) or 14(b), as the case may be (the “Indemnified Party”), will give prompt written notice to the other party (the

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“Indemnifying Party”). (The failure by an Indemnified Party to give notice as provided, above, shall not relieve the Indemnifying Party of its obligations under this Section 14(c), except to the extent that the failure results in the failure of actual notice and the Indemnifying Party is damaged as a result of the failure to give notice.) In addition, the Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless: (i) the employment of counsel by the Indemnified Party has been authorized by the Indemnifying Party; (ii) the Indemnified Party has been advised by its counsel in writing that there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of the action (in which case the Indemnifying Party shall not have the right to direct the defense of the action on behalf of the Indemnified Party); or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of the action within a reasonable time following receipt of the notice given pursuant to this Section 14(c), in each of which cases the fees and expenses of such counsel shall be at the expense of the Indemnifying Party. An Indemnifying Party shall not be liable for any settlement of an action effected without its written consent (which consent shall not be unreasonably withheld), nor shall an Indemnifying Party settle any such action without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld). No Indemnifying Party will consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party a release from all liability with respect to the claim.

15.     Insurance. Vendor will, at Vendor’s expense, maintain insurance policies that cover Vendor’s activities under this Agreement and the Statement of Work and the activities of Vendor’s employees, agents, and representatives, including, but not limited to, workers compensation insurance and comprehensive general liability, errors and omissions liability and media liability with minimum limits of insurance of $2 million per claim and $4 million annual aggregate. Vendor will name Intuit as an additional insured on each such policy. Upon the request of Intuit, Vendor shall provide Intuit with a certificate of insurance evidencing such coverages.

16.     Limitation of Liability.

(a)  NEITHER VENDOR NOR INTUIT SHALL BE LIABLE TO THE OTHER PARTY, THE CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY WHICH RESULTS FROM THE USE BY THE PARTY, A CUSTOMER, OR ANY OTHER PARTY OF INVENTORY DELIVERED TO THE OTHER PARTY OR A CUSTOMER UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF VENDOR OR INTUIT, AS THE CASE MAY BE.

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(b)  IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY HERETO FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATED TO THE PERFORMANCE OR ANY FAILURE TO PERFORM ANY OF SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIMIT DAMAGE RECOVERY WHICH ARISES FROM OR IS RELATED TO (I) A PARTY’S GROSS NEGLIGENCE IN THE PERFORMANCE OF OR THE FAILURE TO PERFORM SUCH PARTY’S OBLIGATIONS HEREUNDER, OR (II) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 12 OF THIS AGREEMENT. THE FOREGOING LIMITATION ON LIABILITY ALSO SHALL NOT SERVE TO LIMIT (A) ANY PARTY’S RECOVERY FOR DIRECT DAMAGES FOR BREACH OF THIS AGREEMENT OR ANY REMEDY SPECIFICALLY SET FORTH HEREIN, OR (B) EITHER PARTY’S OBLIGATION UNDER SECTION 14 TO INDEMNIFY THE OTHER AGAINST CLAIMS MADE BY THIRD PARTIES.

17.     Dispute Resolution. Except with respect to claims involving either party’s intellectual property rights or the breach or anticipated breach of either party’s obligations set forth in Section 12, each party agrees to submit in writing any dispute arising out of or relating to this Agreement to mid-level management representatives designated by each party, who will meet by conference or otherwise in an effort to resolve such dispute within five (5) days. If after the fifth day, such dispute cannot be resolved, then each party’s respective Vice-President, or substantial equivalent, shall attempt to resolve the dispute. In the event that the Vice Presidents are unable to resolve any such dispute within twenty (20) days, the parties shall mutually determine a date and location for a meeting between the senior management of each party. Notwithstanding the foregoing, the parties agree, unless otherwise agreed in writing, (i) to try to resolve any such dispute within thirty (30) days after the commencement of any such dispute and (ii) to continue performance of their additional obligations hereunder that are not the subject of dispute during such period. Either party may bring an action in any court of competent jurisdiction if, at the expiration of such thirty (30) day period, the parties remain unable to resolve such dispute.

18.     General.

(a)  Press Releases. The parties may agree to issue joint press releases and other appropriate announcements and presentations regarding the existence or performance of this Agreement, the content and timing of which shall be mutually agreed upon by the parties in writing. Notwithstanding the foregoing, unless required by law, neither party will, without the prior written approval of the other party, make any public statement, press release, presentation, or other announcement relating to the terms, existence of or performance by either party of its obligations under this Agreement.

(b)  Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any attempt by either party to assign this Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement shall be

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binding upon and shall inure to the benefit of both parties, their successors and permitted assigns.

(c)  Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts in either Orange County or Santa Clara County, California.

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

(e)  Force Majeure. Except with respect to delays or failures caused by the negligent act or omission of either party, any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by war, riot or similar civil disturbance, concerted labor action, earthquake, or similar acts of God, provided that the party affected by such event shall immediately begin or resume performance as soon as practicable after the circumstances giving rise to the event of force majeure have abated. Excusable delays do not include lockout, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. In no event shall any occurrence of a force majeure event relieve Vendor of its obligations under Section 9. In the event that Vendor is not able to fully resume performance within thirty (30) days after the force majeure event has commenced, Intuit shall have the right to terminate this Agreement and/or the Statement of Work immediately upon written notice to Vendor.

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

(g)  Entire Agreement. This Agreement, including any attachments, schedules or exhibits attached hereto, is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter, including, but not limited to, the Initial Agreement. Notwithstanding the foregoing, nothing in this Section 18(g) shall be deemed to supercede the Statement of Work. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

(h)  Waiver. The failure by either party to enforce any term or provision of this Agreement will not be deemed a waiver of future enforcement by that party of that or any other term or provision.

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

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

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

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         IN WITNESS WHEREOF, the authorized representatives of the parties have executed this Agreement as of the date of Effective Date.

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LIST OF EXHIBITS

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Exhibit A

         The Services shall include, but not be limited to, the following services (as those services are more fully described in the Statement of Work): (a) information technology services, including, but not limited to, reporting services relating to IML’s provision of information technology; (b) inventory management services, including, but not limited to, services relating to postponement processes; (c) order management; (d) warehousing and receiving services, including, but not limited to, services relating to inventory control; (e) fulfillment services; (f) services relating to the launch and operation of a virtual warehouse; (g) transportation services for inbound and outbound Inventory, including, but not limited to, tracking services for the Inventory during shipment; (h) customer services, including, but not limited to, claims and return processes; and (i) invoicing services.

Exhibit B

Monthly Fixed Cost

Variable Cost

[*]

Freight Rates

See attached freight schedules.

Proposed Intuit “CUSTOM RATES”
[*] Ground Commercial

Proposed Intuit Rates as a % Discount Off Street
[*] Ground Commercial

[*]   &