FORM OF] TRANSITION SERVICES AGREEMENT by and between UNITED ONLINE, INC. and FTD COMPANIES, INC. dated as of
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[FORM OF]
by and between
UNITED ONLINE, INC.
and
dated as of
, 2013
ARTICLE I |
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DEFINITIONS |
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Section 1.1 |
Certain Definitions |
1 |
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Section 1.2 |
Interpretation |
2 | ||
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Section 2.1 |
Services |
3 |
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Section 2.2 |
Additional Services |
4 | ||
Section 2.3 |
No Violations |
4 | ||
Section 2.4 |
Third-Party Providers |
4 | ||
Section 2.5 |
Independent Contractor |
5 | ||
Section 2.6 |
Employees and Representatives |
5 | ||
Section 2.7 |
Access |
5 | ||
Section 2.8 |
Service Coordinators; Disputes |
5 | ||
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Section 3.1 |
Pricing |
6 |
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Section 3.2 |
Taxes |
6 | ||
Section 3.3 |
Billing and Payment |
6 | ||
Section 3.4 |
Budgeting and Accounting |
6 | ||
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Section 4.1 |
Disclaimer |
7 |
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Section 4.2 |
As Is; Where Is |
7 | ||
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Section 5.1 |
Indemnification by FTD |
7 |
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Section 5.2 |
Indemnification by United Online |
7 | ||
Section 5.3 |
Limitation of Liability |
7 | ||
Section 5.4 |
Indemnification Procedure; Other Rights |
7 | ||
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Section 6.1 |
General |
8 |
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Section 6.2 |
Notice |
8 | ||
Section 6.3 |
Subcontractors; Fees |
8 | ||
Section 6.4 |
Limitations |
8 | ||
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TERM AND TERMINATION |
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Section 7.1 |
Term of Services |
8 | ||
Section 7.2 |
Term and Termination of Agreement |
9 | ||
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CONFIDENTIALITY |
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Section 8.1 |
Confidentiality |
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Section 8.2 |
System Security |
9 | ||
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Section 9.1 |
Further Assurances |
9 |
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Section 9.2 |
Amendments and Waivers |
10 | ||
Section 9.3 |
Entire Agreement |
10 | ||
Section 9.4 |
Third-Party Beneficiaries |
10 | ||
Section 9.5 |
Notices |
10 | ||
Section 9.6 |
Counterparts; Electronic Delivery |
10 | ||
Section 9.7 |
Titles and Headings |
10 | ||
Section 9.8 |
Severability |
10 | ||
Section 9.9 |
Assignability; Binding Effect |
11 | ||
Section 9.10 |
Governing Law |
11 | ||
Section 9.11 |
Construction |
11 | ||
Section 9.12 |
Performance |
11 | ||
Section 9.13 |
Title and Headings |
11 | ||
Section 9.14 |
Exhibits |
11 | ||
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THIS TRANSITION SERVICES AGREEMENT (as the same may be amended or supplemented from time to time, this "Agreement") is entered into as of , 2013, by and between United Online, Inc., a Delaware corporation ("United Online"), and FTD Companies, Inc., a Delaware corporation ("FTD"). United Online and FTD are sometimes referred to herein individually as a "Party," and collectively as the "Parties."
WHEREAS, United Online, acting through its direct and indirect Subsidiaries, owns and conducts the UOL Businesses and the FTD Business;
WHEREAS, United Online and FTD have entered into a Separation and Distribution Agreement, dated as of the date hereof (the "Separation Agreement"), pursuant to which United Online will be separated into two independent publicly-traded companies: (a) FTD, which, following consummation of the transactions contemplated by the Separation Agreement, will own and conduct the FTD Business, and (b) United Online, which, following the consummation of the transactions contemplated by the Separation Agreement, will own and conduct the UOL Businesses;
WHEREAS, in connection with the Separation, FTD desires to procure certain services from United Online, and United Online is willing to provide such services to FTD, during a transition period commencing on the Distribution Date, on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, each Party desires to set forth in this Agreement the principal terms and conditions pursuant to which it will provide or receive such services; and
WHEREAS, the execution of this Agreement by the Parties is a condition precedent to the consummation of the transactions contemplated by the Separation Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Section 1.1 Certain Definitions. Capitalized terms used but not defined in this Agreement shall have the respective meanings ascribed to such terms in the Separation Agreement. As used in this Agreement (including in Exhibit A), the following capitalized terms shall have the following meanings, applicable both to the singular and the plural forms of the terms described:
"Additional Interest" has the meaning set forth in Section 3.3(b).
"Additional Services" has the meaning set forth in Section 2.2.
"Additional Third-Party Providers" has the meaning set forth in Section 2.4(b).
"Affiliate" has the meaning set forth in the Separation Agreement.
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Agreement Dispute" has the meaning set forth in the Separation Agreement.
"Ancillary Agreements" has the meaning set forth in the Separation Agreement.
"Bankruptcy Code" means 11 U.S.C. §§ 101 et seq., as amended.
"Business Days" has the meaning set forth in the Separation Agreement.
"Contract" has the meaning set forth in the Separate Agreement.
"Distribution" has the meaning set forth in the Separation Agreement.
"Distribution Date" has the meaning set forth in the Separation Agreement.
"FTD" has the meaning set forth in the preamble to this Agreement.
"FTD Business" has the meaning set forth in the Separation Agreement.
"FTD Entities" has the meaning set forth in the Separation Agreement.
"FTD Indemnitees" has the meaning set forth in the Separation Agreement.
"Governmental Authority" has the meaning set forth in the Separation Agreement.
"Group" has the meaning set forth in the Separation Agreement.
"Known Third-Party Providers" has the meaning set forth in Section 2.4(b).
"Law" has the meaning set forth in the Separation Agreement.
"Losses" has the meaning set forth in the Separation Agreement.
"Party" or "Parties" has the meaning set forth in the preamble to this Agreement.
"Payment Date" has the meaning set forth in Section 3.3(b).
"Person" has the meaning set forth in the Separation Agreement.
"Sales Taxes" has the meaning set forth in Section 3.2.
"Security Regulations" has the meaning set forth in Section 8.2(a).
"Separation" has the meaning set forth in the Separation Agreement.
"Separation Agreement" has the meaning set forth in the Recitals to this Agreement.
"Service Coordinator" has the meaning set forth in Section 2.8.
"Service Costs" means the amounts to be paid by FTD to United Online for Services provided pursuant to this Agreement.
"Services" means the services identified in Exhibit A.
"Subsidiaries" has the meaning set forth in the Separation Agreement.
"Systems" has the meaning set forth in Section 8.2(a).
"Term" has the meaning set forth in Section 7.2.
"Third-Party Products and Services" has the meaning set forth in Section 2.4(a).
"Third-Party Providers" has the meaning set forth in Section 2.4(a).
"United Online" has the meaning set forth in the preamble to this Agreement.
"UOL Businesses" has the meaning set forth in the Separation Agreement.
"UOL Entities" has the meaning set forth in the Separation Agreement.
"UOL Indemnitees" has the meaning set forth in the Separation Agreement.
Section 1.2 Interpretation. In this Agreement, unless the context clearly indicates otherwise:
(a) words used in the singular include the plural and words used in the plural include the singular;
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(b) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation";
(c) the word "or" shall have the inclusive meaning represented by the phrase "and/or";
(d) relative to the determination of any period of time, "from" means "from and including," "to" means "to but excluding" and "through" means "through and including";
(e) accounting terms used herein shall have the meanings historically ascribed to them by United Online and its Subsidiaries, including FTD, in its and their internal accounting and financial policies and procedures in effect immediately prior to the date of this Agreement;
(f) all references herein to Articles, Sections, paragraphs, subparagraphs, clauses or Exhibits shall be deemed references to Articles, Sections, paragraphs, subparagraphs or clauses of, or Exhibits to, this Agreement;
(g) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;
(h) reference to any Law means such Law (including any and all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;
(i) references to any Person include such Person's successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement; a reference to such Person's "Subsidiaries" shall be deemed to mean such Person's Subsidiaries following the Distribution, and any reference to a third party shall be deemed to mean a Person who is not a Party or a Subsidiary of a Party;
(j) if there is any conflict between the provisions of the main body of this Agreement and Exhibit A, the provisions of the main body of this Agreement shall control unless explicitly stated otherwise in Exhibit A;
(k) if there is any conflict between the provisions of this Agreement and the Separation Agreement, the provisions of this Agreement shall control (but only with respect to the subject matter hereof) unless explicitly stated otherwise herein; and
(l) any portion of this Agreement obligating a Party to take any action or to refrain from taking any action, as the case may be, shall mean that such Party shall also be obligated to cause its relevant Subsidiaries to take such action or to refrain from taking such action, as the case may be.
Section 2.1 Services.
(a) Except as otherwise set forth in Exhibit A, United Online shall use commercially reasonable efforts to provide (or to cause another applicable member of the UOL Entities to provide) to FTD (or another applicable member of the FTD Entities) each Service in a manner, scope, nature, timeliness and quality consistent with the manner, scope, nature, timeliness and quality in which such Service (i) was provided to FTD (or such other applicable member of the FTD Entities) prior to the Distribution Date by United Online (or such other applicable member of the UOL Entities) and (ii) is provided after the Distribution Date by United Online (or such other applicable member of the UOL Entities) for its own business.
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(b) For those services provided to FTD prior to the Distribution Date, FTD shall use the Services for substantially the same purposes and in substantially the same manner (including as to volume, amount, level or frequency, as applicable) as such services have been used immediately prior to the Distribution Date; provided that Exhibit A shall control the scope of and any limitation on the Services to be provided (to the extent set forth therein) including any Services that were not previously provided to FTD prior to the Distribution Date, unless otherwise agreed in writing.
(c) FTD agrees to use commercially reasonable efforts to reduce or eliminate its dependency on the Services as soon as reasonably practicable.
Section 2.2 Additional Services. If FTD reasonably determines that additional transition services not listed in Exhibit A are necessary to conduct the FTD Business after the Distribution Date, FTD shall provide written notice to United Online requesting United Online (i) to provide additional (including as to volume, amount, level or frequency, as applicable) or different services which United Online is not expressly obligated to provide under this Agreement if such services are of the type and scope provided by any member of the UOL Entities (including any employee of any member of the UOL Entities) for FTD prior to the Distribution Date, or (ii) expand the scope of any Service (such additional or expanded services, the "Additional Services"). United Online shall consider such request in good faith and shall use commercially reasonable efforts to provide any such Additional Service; provided that no member of the UOL Entities shall be obligated to perform any Additional Services if such member, in its reasonable judgment, does not have adequate resources to perform such Additional Services or if the provision of such Additional Services would interfere with the operation of the UOL Businesses. United Online shall notify FTD within ten (10) calendar days of receipt of such request as to whether it will or will not provide the Additional Services. If United Online agrees to provide Additional Services pursuant to this Section 2.3, then the Parties shall in good faith negotiate the terms of a supplement to Exhibit A which will describe in reasonable detail the service, project scope, term, price and payment terms to be charged for each Additional Service. Once agreed to in writing, the supplement to Exhibit A shall be deemed part of this Agreement as of such date, and the Additional Services shall be deemed "Services" provided hereunder, in each case subject to the terms and conditions of this Agreement.
Section 2.3 No Violations. Notwithstanding anything to the contrary in this Agreement, neither Party (nor any member of its respective Group) shall be required to perform Services hereunder or to take any actions relating thereto that conflict with or violate any applicable Law or any material Contract, sublicense, authorization, certification or permit.
Section 2.4 Third-Party Providers.
(a) Each Party shall use commercially reasonable efforts to obtain any required consents, licenses or approvals of the providers ("Third-Party Providers") of any products or services required to be used in providing any Services pursuant to this Agreement ("Third-Party Products and Services"). The Parties understand and agree that provision of any Services requiring the use of any Third-Party Products and Services shall be subject to receipt of any required consents, licenses or approvals of the applicable Third-Party Providers.
(b) With respect to each Service, (i) FTD hereby consents to United Online's use of any Third-Party Provider(s) named in Exhibit A with respect to such Service ("Known Third-Party Providers") and (ii) if, after the date of this Agreement, United Online reasonably determines that it requires the use of Third-Party Providers in addition to the Known Third-Party Providers ("Additional Third-Party Providers") in providing such Service, the use of such Additional Third-
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Party Providers shall require the written consent of FTD's Service Coordinator and, subject to Section 2.4(c), such consent will not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding the foregoing, in those instances in which the use of Third-Party Products and Services will require payment of additional consideration by FTD and the payment of such additional consideration is not contemplated by this Agreement (including Exhibit A) or has not been previously agreed by the Parties, then (i) United Online will provide FTD with ten (10) calendar days' prior written notice detailing the amount of such additional consideration and (ii) FTD will then have the option to (A) procure its own Third Party Products and Services at its own expense or (B) authorize United Online to incur the required additional consideration on its behalf and at FTD's expense and such additional consideration will be deemed a Service Cost under this Agreement.
Section 2.5 Independent Contractor. United Online (and each applicable member of the UOL Entities) shall act under this Agreement solely as an independent contractor, and not as an agent, of FTD (and each applicable member of the FTD Entities).
Section 2.6 Employees and Representatives. Unless otherwise agreed in writing, each employee and representative of United Online (or a member of the UOL Entities) that provides Services to FTD (or a member of the FTD Entities) pursuant to this Agreement shall (a) be deemed for all purposes to be an employee or representative of United Online (or such member of the UOL Entities) and not an employee or representative of FTD (or such member of the FTD Entities) and (b) be under the direction, control and supervision of United Online (or such member of the UOL Entities), and United Online (or such member of the UOL Entities) shall have the sole right to exercise all authority with respect to the employment (including termination of employment) and assignment of such employee or representative and shall have the sole responsibility to pay for all personnel and other related expenses, including salary or wages, of such employee or representative.
Section 2.7 Access. FTD shall provide (or cause any applicable member of the FTD Entities to provide) United Online (or any applicable member of the UOL Entities) such reasonable access to the employees, representatives, facilities and books and records of FTD (or such member of the FTD Entities) as United Online (or such member of the UOL Entities) shall reasonably request in order to enable United Online (or such member of the UOL Entities) to provide any Service required under this Agreement. United Online receiving access pursuant to this Section 2.7 must conform with the confidentiality and security provisions in Article VIII, as applicable.
Section 2.8 Service Coordinators; Disputes. Each Party shall appoint a representative to act as the primary contact with respect to the provision of the Services (each such person, a "Service Coordinator"). The initial Service Coordinator for FTD shall be , and the initial Service Coordinator for United Online shall be . The Service Coordinators shall meet as expeditiously as possible to resolve any dispute under this Agreement (including, but not limited to, any disputes relating to payments under Article III), and any dispute that is not resolved by the Service Coordinators within thirty (30) calendar days shall be deemed an Agreement Dispute under the Separation Agreement and shall be resolved in accordance with the dispute resolution procedures set forth in Article of the Separation Agreement. Each Party may treat an act of the other Party's Service Coordinator as being authorized by such other Party without inquiring whether such Service Coordinator had authority to so act; provided that no Service Coordinator shall have authority to amend this Agreement. Each Party shall advise the other Party promptly in writing of any change in its respective Service Coordinator, setting forth the name of the replacement Service Coordinator, and stating that the replacement Service Coordinator is authorized to act for such Party in accordance with this Section 2.8.
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Section 3.1 Pricing. Each Service provided by United Online (or another applicable member of the UOL Entities) shall be charged to FTD at the fees for such Service determined in accordance with Exhibit A, and the Service Costs shall be payable by FTD in the manner set forth in Section 3.3.
Section 3.2 Taxes. The Parties acknowledge that fees charged for Services may be subject to goods and service taxes, value added taxes, sales taxes or similar taxes (collectively, "Sales Taxes"). With respect to each Service provided under this Agreement, (a) United Online shall be liable for reporting and paying the Sales Taxes or any other applicable taxes imposed on fees received for providing such Service and (b) FTD shall reimburse United Online for the amount of such taxes paid on fees received for providing such Service. FTD shall be liable for any applicable use taxes imposed on Services received.
Section 3.3 Billing and Payment.
(a) Within fifteen (15) calendar days after the end of each month, United Online will invoice FTD for the applicable Service Costs on a monthly basis, in arrears, for the prior month just ended. The invoice shall set forth in reasonable detail for the period covered by such invoice (i) the Services rendered, (ii) the Service Costs for each type of Service provided and (iii) such additional information as may be reasonably requested by FTD.
(b) FTD agrees to pay all of the Service Costs on or before thirty (30) calendar days after the date on which an invoice for Service Costs is delivered to FTD (the "Payment Date") by check or wire transfer of immediately available funds to an account designated in writing from time to time by United Online; provided that the Parties may agree to a net amount owed by one Party to the other. If a Party fails to pay any monthly payment on or before the Payment Date, such Party shall be obligated to pay, in addition to the amount due pursuant to such invoice, interest on such amount at a rate per annum equal to 5% ("Additional Interest"); provided that if the Parties agree to a net amount owed by one Party to the other with respect to Service Costs in any monthly period, the Party to whom such net amount is owed shall not be liable for Additional Interest. Unless otherwise agreed in writing between the Parties, all payments made pursuant to this Agreement shall be made in U.S. dollars.
(c) Notwithstanding the foregoing, if a Party in good faith disputes any invoiced charge, payment of such charge shall be made only after mutual resolution of such dispute. Each Party agrees to notify the other Party promptly, and in no event later than the relevant Payment Date, of any disputed charge. Additional Interest shall not accrue on any amount in dispute, and no default shall be alleged until after the relevant Payment Date.
(d) During the term of this Agreement, pursuant to Section 2.7, each Party shall keep such books, records and accounts as are reasonably necessary to verify the calculation of the fees and related expense for Services provided hereunder. Each Party shall provide documentation supporting any amounts invoiced pursuant to this Section 3.3 as the other Party may from time to time reasonably request. Each Party shall have the right to review such books, records and accounts at any time during normal business hours upon reasonable written notice, and each Party agrees to conduct any such review in a manner so as not to unreasonably interfere with the other Party's normal business operations.
Section 3.4 Budgeting and Accounting. Upon reasonable request, each Party will cooperate with the other Party with respect to budgeting and accounting matters relating to the Services.
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ARTICLE IV
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
Section 4.1 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.1, FTD ACKNOWLEDGES AND AGREES THAT UNITED ONLINE (AND EACH MEMBER OF THE UOL ENTITIES) MAKES NO REPRESENTATIONS OR WARRANTIES (INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER.
Section 4.2 As Is; Where Is. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES (AND ANY RELATED PRODUCTS) TO BE PROVIDED UNDER THIS AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS.
ARTICLE V
INDEMNIFICATION; LIMITATION OF LIABILITY
Section 5.1 Indemnification by FTD. FTD, and on behalf of each member of the FTD Entities, hereby agrees to indemnify, defend and hold harmless the UOL Indemnitees from and against any and all Losses relating to, arising out of or resulting from FTD's gross negligence or willful misconduct in the performance of its obligations hereunder, or material breach of this Agreement, other than to the extent such Losses are attributable to the gross negligence, willful misconduct or material breach of this Agreement by any member of the UOL Entities.
Section 5.2 Indemnification by United Online. United Online, and on behalf of each member of the UOL Entities, hereby agrees to indemnify, defend and hold harmless the FTD Indemnitees from and against any and all Losses relating to, arising out of or resulting from United Online's gross negligence or willful misconduct in the performance of its obligations hereunder, or material breach of this Agreement, other than to the extent such Losses are attributable to the gross negligence, willful misconduct or material breach of this Agreement by any member of the FTD Entities.
Section 5.3 Limitation of Liability.
(a) IN NO EVENT SHALL ANY PARTY, NOR ANY MEMBER OF ITS GROUP, NOR ANY DIRECTOR, OFFICER, MANAGER, EMPLOYEE OR AGENT THEREOF, BE LIABLE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE TO THE OTHER PARTY (OR ANY UOL INDEMNITEES OR FTD INDEMNITEES, AS APPLICABLE) FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES) AS A RESULT OF ANY BREACH, PERFORMANCE OR NON-PERFORMANCE BY SUCH PERSON UNDER THIS AGREEMENT, WHETHER OR NOT SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT ANY SUCH AMOUNT IS PAID TO A THIRD PARTY BY THE INDEMNIFIED PARTY OR ANY OF ITS AFFILIATES.
(b) EACH GROUP'S TOTAL LIABILITY TO THE OTHER GROUP UNDER THIS AGREEMENT FOR ANY CLAIM SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID FOR SERVICES UNDER THIS AGREEMENT.
Section 5.4 Indemnification Procedure; Other Rights. All claims for indemnification pursuant to Section 5.1 or Section 5.2 shall be made in accordance with the procedures set forth in Section of the Separation Agreement and shall be subject to Sections of the Separation Agreement.
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Section 6.1 General. If United Online (or any member of the UOL Entities) is prevented from or delayed in complying, in whole or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, earthquake, strike, walkout, lockout or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of fuel, power, raw materials or components, equipment failure, any law, order, proclamation, regulation, ordinance, demand, seizure or requirement of any Governmental Authority, riot, civil commotion, war, rebellion, act of terrorism, nuclear or other accident, explosion, casualty, pandemic, act of God, or act, omission or delay in acting by any Governmental Authority or by FTD (or any member of the FTD Entities) or any other cause, whether or not of a class or kind listed in this sentence, which is beyond the reasonable control of United Online (or any other applicable member of the UOL Entities), then upon notice to FTD pursuant to Section 6.2, the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability and, unless otherwise set forth herein to the contrary, United Online (and any applicable member of the UOL Entities) shall have no liability to FTD (or any member of the FTD Entities) in connection therewith.
Section 6.2 Notice. Upon becoming aware of a disability causing a delay in the performance or preventing performance of any Services to be provided by United Online (or another member of the UOL Entities) under this Agreement, United Online shall promptly notify FTD in writing of the existence of such disability and the anticipated duration of the disability.
Section 6.3 Subcontractors; Fees. FTD shall have the right, but not the obligation, to hire or engage one or more subcontractors to perform the Services affected by the disability for the duration of the period during which such disability delays or prevents the performance of such Services by United Online, it being agreed that the fees paid or payable under this Agreement with respect to the Services affected by the disability shall be reduced (or refunded, if applicable) on a dollar-for-dollar basis for all amounts paid by FTD to such subcontractors; provided that United Online shall not be responsible for the amount of fees charged by any such subcontractors to perform such Services to the extent they exceed the fees payable under this Agreement for such Services.
Section 6.4 Limitations. Each Party shall use its commercially reasonable efforts to promptly remove any disability under Section 6.1 as soon as possible; provided that nothing in this Article VI will be construed to require the settlement of any lawsuit or other legal proceeding, strike, walkout, lockout or other labor dispute on terms which, in the reasonable judgment of the affected Party, are contrary to its interest. It is understood that the settlement of a lawsuit or other legal proceeding, strike, walkout, lockout or other labor dispute will be entirely within the discretion of the affected Party.
ARTICLE VII
TERM AND TERMINATION
Section 7.1 Term of Services. Subject to the penultimate sentence of Section 7.2 and except as otherwise set forth in Exhibit A, each of the Services shall be provided for the term specified in Section 7.2; provided that FTD shall have the right to terminate one or more of the Services that it receives under this Agreement at the end of a designated month by giving United Online at least thirty (30) days' prior written notice of such termination. Except as otherwise agreed, each Service may only be terminated in whole, and partial termination of a Service shall not be permitted without the prior approval of United Online, such approval not to be unreasonably withheld or delayed. The Parties shall cooperate with each other in good faith in their efforts to reasonably effect early termination of Services, including, where applicable, partial termination, and to agree in good faith upon appropriate reduction of the charges hereunder in connection with such early termination.
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Section 7.2 Term and Termination of Agreement. This Agreement shall terminate upon the earlier of (a) the cessation of all Services pursuant to Section 7.1 or (b) the one year anniversary of the Distribution Date; provided that FTD shall have the one-time right to extend the term of this Agreement until the two year anniversary of the Distribution Date by providing United Online with written notice thereof at least sixty (60) calendar days prior to the one year anniversary of the Distribution Date; provided further that Articles III, IV, V and VIII shall survive the termination of this Agreement, and any such termination shall not affect any payment obligation for Services rendered prior to termination. Notwithstanding the foregoing: (i) the Parties may terminate this Agreement by mutual written consent and (ii) the Parties each reserve the right to immediately terminate this Agreement by written notice to the other Party in the event that such other Party shall have (A) applied for or consented to the appointment of a receiver, trustee or liquidator; (B) admitted in writing an inability to pay debts as they mature; (C) made a general assignment for the benefit of creditors; or (D) filed a voluntary petition, or have filed against it a petition, for an order of relief under the Bankruptcy Code. The period from the Distribution Date to the date of termination of this Agreement in accordance with this Section 7.2 is referred to as the "Term."
Section 8.1 Confidentiality. Each Party agrees that the specific terms and conditions of this Agreement and any information conveyed or otherwise received by or on behalf of a Party in conjunction herewith shall be Confidential Information subject to the confidentiality provisions (and exceptions thereto) set forth in Section of the Separation Agreement.
Section 8.2 System Security.
(a) If United Online (or a member of the UOL Entities) is given access to the computer systems or software (collectively, "Systems") of FTD (or a member of the FTD Entities) in connection with the provision of a Service, United Online shall comply (or cause such member of the UOL Entities to comply) with all of the system security policies, procedures and requirements (collectively, "Security Regulations") of FTD (or such member of the FTD Entities), and shall not (or shall cause such member the UOL Entities not to) tamper with, compromise or circumvent any security or audit measures employed by FTD (or such member of the FTD Entities). United Online shall (or shall cause such member of the UOL Entities to) access and use only those Systems of FTD (or such member of the FTD Entities) for which it has been granted the right to access and use.
(b) United Online shall use commercially reasonable efforts to ensure that only those of its personnel (or the personnel of such member of the UOL Entities) who are specifically authorized to have access to the Systems of FTD (or such member of the FTD Entities) gain such access, and use commercially reasonable efforts to prevent unauthorized access, use, destruction, alteration or loss of information contained therein, including notifying its personnel (or the personnel of such member of its Group) of the restrictions set forth in this Agreement and of the Security Regulations.
Section 9.1 Further Assurances. Subject to the limitations or other provisions of this Agreement, (a) each Party shall, and shall cause the other members of its Group to, use commercially reasonable efforts (subject to, and in accordance with applicable Law) to take promptly, or cause to be taken promptly, all actions, and to do promptly, or cause to be done promptly, and to assist and cooperate
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with the other Party in doing, all things reasonably necessary, proper or advisable to carry out the intent and purposes of this Agreement, including using commercially reasonable efforts to perform all covenants and agreements herein applicable to such Party or any member of its Group and (b) neither Party will, nor will either Party allow any other member of its Group to, without the prior written consent of the other Party, take any action which would reasonably be expected to prevent or materially impede, interfere with or delay the provision of any Services hereunder during the Term. Without limiting the generality of the foregoing, where the cooperation of third parties would be necessary in order for a Party to completely fulfill its obligations under this Agreement, such Party shall use commercially reasonable efforts to cause such third parties to provide such cooperation.
Section 9.2 Amendments and Waivers.
(a) Subject to Section of the Separation Agreement, this Agreement may be amended, modified or supplemented only by an agreement in writing signed by both Parties.
(b) Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party entitled to the benefit thereof and any such waiver shall be validly and sufficiently given for the purposes of this Agreement if it is in writing signed by an authorized representative of such Party. No delay or failure in exercising any right, power or remedy hereunder shall affect or operate as a waiver thereof; nor shall any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that either Party would otherwise have.
Section 9.3 Entire Agreement. This Agreement, the Separation Agreement, the other Ancillary Agreements and the Exhibits and Schedules attached hereto and thereto, constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof.
Section 9.4 Third-Party Beneficiaries. Except as provided in Article V relating to Indemnitees, this Agreement is solely for the benefit of the Parties and shall not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to this Agreement.
Section 9.5 Notices. All notices, requests, permissions, waivers and other communications hereunder shall be provided in accordance with the provisions of Section of the Separation Agreement.
Section 9.6 Counterparts; Electronic Delivery. This Agreement may be executed in multiple counterparts, each of which when executed shall be deemed to be an original, but all of which together shall constitute one and the same agreement. Execution and delivery of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic means shall be deemed to be, and shall have the same legal effect as, execution by an original signature and delivery in person.
Section 9.7 Titles and Headings. Titles and headings to Sections and Articles herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
Section 9.8 Severability. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a nonappealable decision by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any
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manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the court, administrative agency or arbitrator shall interpret this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible. If any sentence in this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
Section 9.9 Assignability; Binding Effect. Except as otherwise expressly provided in this Agreement, neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, and any attempt to assign this Agreement without such consent shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 9.10 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of Delaware, without regard to any conflicts of law provisions thereof that would result in the application of the laws of any other jurisdiction.
Section 9.11 Construction. This Agreement shall be construed as if jointly drafted by the Parties, and no rule of construction or strict interpretation shall be applied against either Party. The Parties represent that this Agreement is entered into with full consideration of any and all rights which the Parties may have. The Parties have relied upon their own knowledge and judgment and upon the advice of the attorneys of their choosing. The Parties have had access to independent legal advice, have conducted such investigations they and their counsel thought appropriate, and have consulted with such other independent advisors as they and their counsel deemed appropriate regarding this Agreement and their rights and asserted rights in connection therewith. The Parties are not relying upon any representations or statements made by the other Party, or such other Party's employees, agents, representatives or attorneys, regarding this Agreement, except to the extent such representations are expressly set forth or incorporated in this Agreement. The Parties are not relying upon a legal duty, if one exists, on the part of the other Party (or such other Party's employees, agents, representatives or attorneys) to disclose any information in connection with the execution of this Agreement or its preparation, it being expressly understood that neither Party shall ever assert any failure to disclose information on the part of the other Party as a ground for challenging this Agreement.
Section 9.12 Performance. Each Party shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party.
Section 9.13 Title and Headings. Titles and headings to Sections and Articles are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
Section 9.14 Exhibits. The Exhibits attached hereto are incorporated herein by reference and shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Transition Services Agreement to be signed by their authorized representatives as of the date first above written.
| UNITED ONLINE, INC. | ||||
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Name: Title: |
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FTD COMPANIES, INC. |
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By: |
Name: Title: |
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EXHIBIT A
UNITED ONLINE SERVICES
1
TABLE OF CONTENTS
TRANSITION SERVICES AGREEMENT
RECITALS
ARTICLE I DEFINITIONS
ARTICLE II SERVICES
ARTICLE III PAYMENT
ARTICLE IV DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
ARTICLE V INDEMNIFICATION; LIMITATION OF LIABILITY
ARTICLE VI FORCE MAJEURE
ARTICLE VII TERM AND TERMINATION
ARTICLE VIII CONFIDENTIALITY
ARTICLE IX MISCELLANEOUS
EXHIBIT A UNITED ONLINE SERVICES