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EXHIBIT 10.5
AGREEMENT NO.: 119803104
A G R E E M E N T
BETWEEN
JBA INTERNATIONAL, INC. AND THE SIRENA APPAREL GROUP, INC.
(hereinafter called "JBA") (hereinafter called
the "Customer")
Address: Address:
Centerpointe Xxxxxxxx 00000 Xxxxx Xxxxxx
000 Xxxxxxx Xxxxx, Xxxxx 000 Xxxxx Xx Xxxxx, XX 00000
Xxxxx Xxxxxx, XX 00000
The parties accept and agree to the terms and conditions and the contents of the
following Schedule(s) and Exhibit(s) ("Agreement"):
X-0 X-0 E
JBA THE CUSTOMER
Signed for and on behalf of JBA by: Signed for and on behalf of the
Customer by:
Name Xxxxxxx X. Xxxxxxx Name Xxxxxxx X. Xxxxxx
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Title President Title Chairman
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Signature /s/ XXXXXXX X. XXXXXXX Signature /s/ XXXXXXX X. XXXXXX
-------------------------- --------------------------------
Date 3/31/98 Date 3/31/98
------------------------------- -------------------------------------
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JBA GENERAL TERMS AND CONDITIONS
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MUTUAL UNDERTAKINGS
1) CONTENT AND EFFECT
a) This Agreement, including all Schedules, Exhibits and any Addendum
executed by the parties hereto, constitutes the entire and complete
agreement between the parties, and supersedes all prior or contemporaneous
agreements, representations, statements or undertakings between the parties,
whether written or oral. All terms and conditions of any purchase order or
other ordering document of the Customer shall be superseded by the terms and
conditions of this Agreement. The Customer may license additional Software
Product(s) hereunder upon completion of the appropriate schedule(s)
(referencing the number of this Agreement). No such schedule(s) shall be
effective until dually executed by the Customer and an authorized signatory
of JBA. b) Unless otherwise specified in the particular terms and conditions
or in any Schedule, Exhibit or Addendum of or to this Agreement: i) the JBA
General Terms and Conditions shall apply to all software programs, computer
hardware, equipment and services supplied by JBA under this Agreement; ii)
the JBA Software Product(s) Terms and Conditions shall apply to all Software
Product(s) which are licensed by JBA under this Agreement and are specified
in Schedule D and Schedule E; iii) the JBA Services Terms and Conditions
shall apply to all software services which are described in a Service
Estimate Form and are supplied by JBA under this Agreement; iv) the Oracle
Programs Terms and Conditions as set out in Schedule F shall apply to all
Oracle Programs licensed or sublicensed under this Agreement. c) In the
event of any conflict between the terms of any Schedule or Exhibit of or
Addendum to this Agreement and the JBA General Terms and Conditions, the JBA
Software Product(s) Terms and Conditions or the JBA Services Terms and
Conditions, the terms of such Schedule, Exhibit or Addendum shall control.
2) PRICES
All prices specified in this Agreement are net and exclusive of taxes, which
shall be the Customer's responsibility (other than taxes based on JBA's net
income).
3) NON-ASSIGNMENT
The Customer shall not assign, delegate or otherwise transfer this Agreement
or any part of it (by operation of law or otherwise), without the prior
written consent of JBA.
4) NOTICES
Any notice, document or request required to be given or served shall be
given or served by sending it pre-paid first class mail or by facsimile to
the address of JBA or the address of the Customer as set out above. If sent
by first class mail, service shall be deemed to have occurred forty eight
(48) hours after the mailing of such notice, and if sent by facsimile, upon
receipt of appropriate confirmation of transmission. Either party may give
written notice to the other of a change of address and after notice of such
change has been served and received, any notice, document or request given
or served thereafter shall be given to or served upon such party at such
changed address.
5) CLAUSE HEADINGS
Clause headings are inserted for ease of reference only, and do not form
part of this Agreement for the purpose of interpretation.
6) APPLICABLE LAW
This Agreement and all the terms, provisions and conditions of this
Agreement, and all questions of construction, validity and performance under
this Agreement, shall be governed by the laws of New Jersey without regard
to New Jersey conflicts of laws principles.
7) CONFIDENTIALITY
Each of JBA and the Customer hereby undertakes to the other to keep
confidential all information not in the public domain relating to the
business or product(s) of the other party, and shall not, without the
other's written consent, disclose any such information to any other person.
JBA shall be entitled to disclose to its employees, agents and
subcontractors, who have a need to know, confidential information relating
to the Customer, provided that JBA shall have made such persons aware that
such information is confidential and such persons have agreed to keep such
information confidential. The terms of this Clause 7 shall survive the
termination of this Agreement.
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8) LIMITATION OF LIABILITY
JBA SHALL NOT, IN ANY CIRCUMSTANCES, BE LIABLE WHETHER IN CONTRACT, TORT OR
OTHERWISE, FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE
HOWSOEVER ARISING AND OF WHATSOEVER NATURE SUFFERED OR INCURRED BY THE
CUSTOMER, INCLUDING (WITHOUT LIMITATION) LOSS OF PROFITS, LOSS OF CONTRACTS,
LOSS OF DATA, LOSS OF OPERATION TIME OR LOSS OF THE USE OF ANY EQUIPMENT OR
PROCESS SUFFERED DIRECTLY OR INDIRECTLY BY THE CUSTOMER AND LOSS OF
ANTICIPATED SAVINGS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS;
OR UPON A DETERMINATION THAT ANY REMEDY HEREUNDER FAILS ITS ESSENTIAL
PURPOSE.
The liability of JBA to the Customer for any direct loss or damage whether
in contract, tort or otherwise, arising out of or in connection with JBA's
performance or JBA's total or partial failure to perform in accordance with
this Agreement shall be limited to and shall not in any circumstances exceed
a sum equal to (i) the amount of license fees paid to JBA by the Customer
under this Agreement, if with respect to the Software Products or (ii) the
amount of services fees paid, if with respect to the services.
9) VALIDITY
This Agreement shall come into force upon the date countersigned by an
authorized signatory of JBA.
10) FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of a required obligation (other than the payment of amounts due
hereunder) if such failure or delay is caused by strike, riot, fire, flood,
natural disaster or other similar cause beyond such party's reasonable
control.
11) WAIVER
The waiver by JBA of a breach or default of any of the provisions of this
Agreement by the Customer shall not be construed as a waiver of any
succeeding breach of the same or other provisions, nor shall, any delay or
omission on the part of JBA to exercise or avail itself of any right power
or privilege that it has or may have hereunder operate as a waiver of any
breach or default by the Customer.
12) SEVERANCE
If any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, the invalidity or unenforceability of such provision shall
not affect the other provisions of this Agreement, and all provisions not
affected by such invalidity or unenforceability shall remain in full force
and effect. The parties agree to substitute for any invalid or unenforceable
provision a valid or enforceable provision which achieves to the greatest
extent possible the economic, legal and commercial objectives of the invalid
or unenforceable provision.
JBA UNDERTAKINGS
13) STAFF ALLOCATION
JBA reserves the right to determine the allocation of JBA personnel in
furnishing services under this Agreement.
14) PERSONNEL MOVEMENTS
JBA agrees that, for a period of six (6) months from the date the Customer's
employee(s) have left the employment of the Customer, JBA will not approach
or solicit the personnel of the Customer with a view to offering them
employment, without the prior written consent of the Customer, which will
not be unreasonably delayed or withheld.
15) INTELLECTUAL PROPERTY INDEMNITY
a) JBA will defend at its cost any claims brought against the Customer that
any Software Product(s) supplied by JBA to the Customer pursuant to this
Agreement infringe any patent, trademark, copyright or other intellectual
property rights of third parties. JBA will pay those costs and damages
finally awarded against the Customer or settled by negotiations on any
action based on any such claim provided that: i) the Customer promptly
notifies JBA in writing of any such claim; ii) JBA has sole control of the
defense of any such claim and all related settlement negotiations and iii)
the Customer provides JBA with the assistance, information and authority
necessary to perform JBA's obligations under this Clause 15. b) JBA shall
have no liability for any claim of infringement based on: i) use of a
superseded or altered release of the Software Product, if such infringement
would have been avoided by the
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use of at current unaltered release of the Software Product that JBA
provides to the Customer, or ii) the combination, operation or use of any
Software Product supplied under this Agreement with software, hardware or
other materials not supplied by JBA under this Agreement, if such
infringement would have been avoided by the use of the Software Product
without such software, hardware or other materials. c) If a judgment against
JBA for any such claim has occurred, or in JBA's opinion is likely to occur,
the Customer agrees to permit JBA, at its expense, either: i) to procure for
the Customer the right to continue using the Software Product(s); or ii) to
modify the same so that they become non-infringing; or iii) to replace the
same by non-infringing material so that the material as modified or
replaced performs the same functions as the infringing material; or iv) to
terminate the license for the infringing Software Product(s) and refund the
license fees paid for those Software Product(s) prorated over a five (5)
year term from the date of this Agreement. This Clause 15 states JBA's
entire liability and the Customer's exclusive remedy for infringement.
CUSTOMER UNDERTAKINGS
16) PERSONNEL MOVEMENTS
The Customer agrees that, for a period of six (6)months from the date JBA's
employees have left the employment of JBA, the Customer will not approach or
solicit the personnel of JBA with a view to offering them employment without
the prior written consent of JBA, which will not be unreasonably delayed or
withheld.
17) ACKNOWLEDGMENT
The Customer grants to JBA the right to use the Customer's name as a
customer of JBA. However, before JBA uses the Customer's name in publicity,
advertising, releases and other materials prepared by or on behalf of JBA,
prior written approval by the Customer of the wording to be used must be
obtained, such approval not to be unreasonably delayed or withheld.
18) THIRD PARTY SUPPLIED SOFTWARE
The Customer warrants: 1) that is has the necessary permission to enable any
programs owned by third parties, which JBA is not obliged to supply under
the terms of this Agreement and necessary for JBA to fulfill its obligations
to the Customer, to be copied and modified and run on the specified
equipment during the use of the Software Products(s) without infringing
third party copyright or any other rights; and ii) that the disclosure to or
use of such third party programs by JBA will not involve or result in any
breach of confidence or contract. b) The Customer will indemnify and hold
JBA harmless against any such claim and the costs of defending such a claim
arising out of the breach by the Customer of the warranty set out in this
Clause 18.
19) COMPUTER CONTROLS
Unless otherwise expressly agreed in writing by JBA as a specific
responsibility of JBA under this Agreement, the Customer will be responsible
for: a) providing adequate and appropriate machine configuration and system
software product(s); b) providing adequate and appropriate installation and
audit controls; c) implementing sufficient procedures and checkpoints to
satisfy the Customer's requirements in relation to security and accuracy of
input and output data, including restart and recovery in the event of a
computer malfunction; and d) providing suitably qualified user personnel to
run the computer, and backing up all data.
20) PAYMENT
The Customer agrees to pay all invoices submitted by JBA, without setoff or
retention, within the period specified on the invoice. JBA reserves the
right to charge interest an any overdue balance at three percent (3%) per
annum over the prime lending rate as established in The Wall Street Journal
from time to time, or the maximum amount permitted by law. The Customer
acknowledges that payments made pursuant to this Agreement are not
refundable deposits.
21) EXPENSES
The Customer agrees to reimburse JBA for reasonable incidental expenses
incurred, at the rates shown in Schedule C, as a result of work performed
under this Agreement, excepting any work performed under warranty under
Clause 6 of the JBA Software Product(s) Terms and Conditions.
22) NON-JBA ERRORS
If operational problems or errors are attributable to the malfunctions of
the specified computer(s) or the malfunction of software other than any
Software Product(s) supplied under this Agreement, then all work performed
by JBA investigating and/or correcting such problems or errors shall be paid
by the Customer at JBA's
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then current rates. If JBA is requested to correct or corrects any defect,
error or malfunction in any Software Product(s) supplied under this
Agreement caused by any alteration or modification to such Software
Product(s) other than by JBA, or as a result of the Customer's breach of any
term of this Agreement, all work performed by JBA in investigating and/or
correcting such defect, error or malfunction shall be paid by the Customer
at JBA's then current rates, unless the Customer can show that such defect,
error or malfunction has been introduced by JBA or, as the case may be, has
not been caused by any breach by the Customer of any term of this Agreement.
The Customer acknowledges that JBA shall have no liability or obligations
under this Agreement for any breach of warranty or any losses, damages,
costs or expenses to the extent that the breach of warranty or the losses,
damages costs or expenses are caused by the Customer's breach of any term of
this Agreement or by any default, omission or negligence on the part of the
Customer.
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JBA SOFTWARE PRODUCT(S)
TERMS AND CONDITIONS
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DEFINITIONS
"JBA Software Product(s)" means the software product(s) itemized in Schedule
D, as modified, added to or replaced by JBA under the terms of this
Agreement.
"Third Party Application Software Product(s)" means the software product(s)
itemized in Schedule E, as modified, added to or replaced by JBA under the
terms of this Agreement. "Software Product(s)" means the JBA Software
Product(s) and the Third Party Application Software Product(s).
"Seat" means the terminal, workstation or input device being used to access
the Software Product(s) on the computer(s) whose serial number(s) is
specified in Schedule D and E.
"User" means any employee of the Customer accessing the Software Product(s)
on the computer(s) whose serial number(s) is specified in Schedules D and E
from a single processor keyboard terminal or peripheral device or from a
terminal workstation or input device.
JBA UNDERTAKINGS
2) GRANT OF LICENSE
JBA grants to the Customer a non-exclusive, non-transferable license in
perpetuity, but subject to the terms hereof, to use the Software Product(s)
and associated documentation for the Customer's own internal data processing
operations and business use and not in a service bureau environment. The
Software Product(s) are licensed for use only on the computer(s) whose
serial number(s) is specified in Schedules D and E, provided always, that if
there is a limit to the number of Users or Seats specified in Schedule D or
Schedule E or there is any other restriction specified in Schedule D or
Schedule E in respect of any Software Product or the use of any Software
Product or its associated documentation the license to use that Software
Product or its associated documentation she be restricted accordingly. The
license granted does not include any right to grant sublicenses. If any of
the computer(s) whole serial number(s) is specified in Schedule D or
Schedule E becomes temporarily inoperable, than the Customer may transfer
the Software Product(s) an a temporary basis to another computer approved by
JBA, provided that the Customer promptly notifies JBA of such temporary use
and uses all reasonable efforts to repair or replace promptly at its own
expense the computer(s) specified in the Schedule D or Schedule E. JBA shall
not be liable for any loss, damage or expense suffered by the Customer in
the event that the Customer transfers the Software Product(s) on a temporary
basis to another computer as permitted under the terms of this Clause 2. The
Customer agrees not to cause or permit the reverse engineering, disassembly,
decompilation, translation or adaptation of the Software Product(s).
3) DELIVERABLES
JBA shall provide the following items as integral parts of the license
granted in respect of the Software Product(s); a) one copy of the Software
Product(s) in machine readable form; and b) one copy of the documentation
associated with the Software Product(s) where applicable.
4) SPECIFICATION
The "specification" of the Software Product(s) shall be defined as the
functions detailed in the Software Product(s) user manual.
5) ERRORS
"Errors" shall be defined solely as deviations from, the Software
Product(s) specification as defined in Clause 4 above.
6) WARRANTY SERVICES
a) For an initial period of ninety (90) days from the date of delivery JBA
warrants that the Software Product(s) will perform in accordance with the
specification. During such ninety (90) day period, JBA will provide the
support described below for the Software Product(s) free of charge under
warranty. An additional thirty one (31) days warranty from the Customer's
year end will be provided for any JBA Software Product exclusively used in
year end procedures. i) Correction of Errors. JBA will start as soon as is
reasonably practicable given the nature or effect of the Error and continue
remedial work on Errors which seriously affect operation of the Software
Product(s).
ii) Fix Refreshes. JBA will provide magnetic
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media containing fix refreshes to the Software Product(s) plus instructions
on how to apply the fix refreshes to the Software Product(s). Work performed
by JBA at the request of the Customer to apply fix refreshes to the Software
Product(s) is an additional chargeable service. iii) Documentation. JBA will
provide updates to documentation that JBA deems necessary for use of the
Software Product(s). b) JBA's sole obligation under this warranty shall be
to correct the errors in Software Product(s) so that the Software Product(s)
will perform in accordance with the specification. This warranty is limited
to those services set forth above and is in lieu of any and all other
warranties or conditions, express or implied. JBA has authorized no other
warranty with respect to the Software Product(s) and the Customer has not
relied on any other warranty in its decision to execute this Agreement. The
sole remedies of the Customer for any breach of true limited warranty an set
forth herein. c) Notwithstanding the warranties contained herein, JBA shall
have no liability to remedy a breach of warranty to the extent such breach
arises as a result of:
- the improper use, operation or neglect of either the Software
Product(s), the documentation or the specified computer or other central
processing unit.
- the modification of the Software Product(s) or their merger (in whole or
in part) by any person other than JBA with any other software
product(s).
- the use or attempted use of the Software Product(s) on equipment other
then the specified computer(s) whose serial number(s) is specified in
Schedule D or Schedule E
- the Customer's failure to implement recommendations in respect of or
solutions to faults identified by JBA.
- the Customer's breach of any of its obligations under this Agreement.
d) JBA does not warrant merchantability or the fitness for purpose or
suitability of the operation of the Software Product(s), or that the
Software Product(s) or the associated documentation will meet the Customer's
requirements, or that the Software Product(s) will operate in circumstances
which the Customer may select for use, or that the operation of the Software
Product(s) will be uninterrupted or error free.
7) SUPPORT AND NEWS RELEASE SERVICES
Where indicated within Schedule D and/or Schedule F, the following services
are available to the Customer:
a) Standard Software Product Support (SSPS) - JBA will provide those
services detailed in Clause 6 of the JBA Software Product(s) Terms and
Conditions after the expiry of the warranty period set out in that clause,
together with all new releases of the Software Product(s) licensed to the
Customer pursuant to this Agreement. Such new releases will be made
available to the Customer when JBA formally announces their release. This
service is available on a twelve
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(12) month basis and will automatically renew on each anniversary of its
inception, unless the Customer has given at least ninety (90) days prior
written notice to terminate on any anniversary.
b) Extended Software Product Support (ESPS) - JBA will provide these
services detailed in Clause 7a) an a five (5) year basis from the date of
delivery of the Software Product(s) as set forth in Schedule D, and will
automatically terminate on the expiry of the said Five (5) year period.
c) Technology Investment Support (TIS) - JBA will provide the Customer with
the option of receiving a version of the Software Product(s) as set forth in
Schedule D which will operate on a Unix hardware platform (where the
Software Product(s) specified in Schedule D as licensed on an AS/400
hardware platform), or a version of the Software Product(s) specified in
Schedule D which will operate on an AS/400 hardware platform (where the
Software Product(s) specified in Schedule D are licensed on a Unix hardware
Platform), in either case if and when the particular version becomes
available for general customer use, subject to the Customer entering into
JBA's then current agreement. TIS is only available if the Customer has
agreed to purchase ESPS.
d) The Customer may elect to retain use of a prior version of a particular
Software Product. The Customer accepts that JBA shall only continue to
provide, and shall only be obliged under the terms of this Clause 7 to
provide, the services in the Clause 7 in respect of the prior version of any
Software Product for a period of up to twelve (12) months from the date of
the general version of the current release of the Software Product.
8) SERVICES CHARGES
a) i) The charge for the SSPS is as set forth in Schedule D and/or
Schedule F hereof. The charge is payable annually in advance
against invoice plus all applicable taxes.
ii) The charge for ESPS is as set forth in Schedule D. The charge is
payable in advance against invoice, plus all applicable taxes.
iii) The charge for TIS is as set forth in Schedule D. TIS is only
available as part of the five year ESPS and is not
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available under any annual maintenance charge. All applicable
taxes will apply.
b) In the event the Customer, during the term of service pursuant to Clause
7 above, migrates to a processor model with a higher minimum number of Users
or increases the maximum number of Users or Seats, an additional service
charge will be payable forthwith by the Customer in accordance with JBA's
then current price list. The additional charge will be the difference
between the relevant service charge in respect of the original number of
Users or Seats and the annual service charge calculated by reference to
JBA's then current price list on the day of migration to the new processor
model or, as the case may be, on the day of the increase of the additional
number of Users or Seats reduced pro-rata to the amount of the service
period then expired.
c) JBA shall have the right, by giving not less than thirty (30) days
written notice, to change any percentage payment set forth in Schedule D
and/or Schedule E by up to 1% (one percent) in any given twelve (12) month
period. d) Without prejudice to any other right or remedy available to JBA,
JBA shall have the right to suspend the provision of any services under this
Agreement if the Customer fails to make any payment due to JBA under this
Agreement.
9) SOURCE CODE ESCROW
JBA has deposited the source code for certain Software Product(s) set forth
in Schedule D herein with an escrow agent. A copy of the agreement between
JBA and its escrow agent will, upon written request from the Customer, be
made available. The Customer may obtain the benefits under the escrow
arrangements, in accordance with the terms of the escrow agreement, provided
the Customer is under contract to receive SSPS or ESPS and has paid all sums
due in respect thereof.
10) CANCELLATION OF LICENSE
If the Customer fails to pay any sum due under the Agreement within thirty
(30) days of the due date, or if the Customer commits a material breach of
any term of this Agreement and (in case of a breach capable of remedy) has
not remedied the same within thirty (30) days of JBA's request, or if the
Customer permanently discontinues the use of the Software Product(s), or if
the Customer ceases to exist or becomes insolvent, bankrupt, or is deemed to
be unable to pay its debts as they fall due, or has a receiver appointed
over any part of its assets, then in addition to and without detracting from
any other remedy which JBA may have, JBA may forthwith give notice of
cancellation of the license relating to the Software Product(s) and
associated documentation, whereupon the Customer's right to use the Software
Product(s) and associated documentation shall cease. In such event, the
Customer shall deliver the Software Product(s) and associated documentation
to JBA and shall in addition take all such steps as may be necessary to
destroy copies of the Software Product(s) and any record of the same
contained in any data retrieval system under the control of the Customer. An
officer of the Customer shall warrant in writing to JBA that the provisions
of this Clause 10 have been satisfied.
11) UPGRADES
a) The Customer acknowledges that the Software Product(s) license fees
specified in Schedule D and Schedule E have been calculated on a User or
Seat based pricing formula and calculated by reference to an agreed maximum,
number of concurrent Users or Seats and/or by reference to specifying the
computer model/serial number set out in Schedule D and/or Schedule E. In the
event that Schedule D and/or Schedule E specifies a maximum number of Users
or Seats and the Customer increases the maximum number of Users or Seats or
if the Customer wishes to upgrade or upgrades its computer model to a model
with an increased minimum number of Users which would result or results in
an increase in the number of Users required by the Customer, a corresponding
increase in the Software Product(s) license fees shall be made and becomes
due with immediate effect in accordance with JBA's then current price list.
b) If the Customer wishes to upgrade or upgrades any specified computer to a
computer model which involves an increase in the minimum number of Users or
Seats than is specified in Schedule D and/or Schedule E for use with the
existing specified computer, then JBA shall be entitled to increase the
Software Product(s) license fees with immediate effect in accordance with
JBA's then current price list.
c) The Customer acknowledges that the Software Product license fee(s) shown
in Schedule D and
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in Schedule E are for the specific processor model(s) shown. Upgrade to a
processor model(s) with increased relative performance will result in
additional license fee equal to the difference in the Software Product(s)
license fee(s) for the original processor model(s) and the upgraded
processor model(s) indicated in the then current JBA price list. The
additional license fee shall become due and payable on the day of upgrade to
the processor(s) with increased relative performance.
12) SOURCE CODE PROVISION
If Schedule D states that the Customer has acquired the right from JBA to
use the source code of the specified JBA Software Product(s) licensed under
Schedule D of this Agreement, all rights to use are granted subject to the
following additional conditions:
- JBA retains all rights to the modifications made by the Customer to the
JBA Software Product(s).
- Source code will be stored in a secure area controlled by the Customer.
- Source code will be made available only to the Customer's employees on a
need to know basis.
CUSTOMER UNDERTAKINGS
13) TRAINING
The Customer agrees to release personnel for training courses as reasonably
required by JBA to ensure the success of the installation and operation of
the Software Product(s). The courses may be held at the premises of the
Customer, a third party, or JBA as appropriate. The charge for these courses
shall be as set forth in the then current edition of the JBA or the third
party education price list.
14) CONFIDENTIALITY
a) The Customer Agrees that during and after the term of this Agreement it
shall not copy or otherwise provide or make available for use or copying the
Software Product(s) or any portion thereof to any persons other than
employees of the Customer specifically engaged in the use of the Software
Product(s). No copies of the Software Product(s) or its associated
documentation beyond those necessary for security purposes shall be made
without the express written permission of JBA. The Customer acknowledges
that the Software Product(s) are the confidential information and trade
secrets of JBA or its licensor. All archival or back-up copies of the
Software Product(s) are subject to the terms of this Agreement.
b) The Customer shall take such reasonable steps as may be necessary to
ensure that its employees and any persons permitted by this Agreement to
have access to the Software Product(s) and/or associated documentation shall
preserve it's secrecy and confidentiality.
c) The Customer agrees that if a copy of the Software Product(s) is found to
be on an unlicensed computer without the Permission of JBA by reason of the
action of a Customer's employee or person having access to the Software
Product(s), then the Customer agrees, in addition to and without detracting
from any other remedy which JBA my have, to take all reasonable steps:
i) to notify JBA immediately of the circumstances of the unauthorized use
of the Software Product(s);
ii) to attempt to destroy that copy of the Software Product(s);
iii) to persuade the unlicensed user to obtain a license from JBA; and
iv) to take other actions as may be necessary or desirable to stop the
unauthorized use of the Software Product(s).
d) The Customer shall indemnify and hold JBA harmless against any loss or
damage which JBA may suffer or incur as a result of or in connection with
the Customer failing to comply with any of the provisions of this Clause 14.
e) The foregoing obligations of confidentiality shall remain in full force
and effect, notwithstanding the termination of this Agreement for any reason
whatsoever.
15) ACKNOWLEDGMENT OF OWNERSHIP
The Customer hereby acknowledges it has no rights to the Software
Product(s), except that of usage and that JBA or such other person as JBA
designates retains sole ownership of the Software Product(s), including any
modifications or extensions provided for the Customer by JBA. The Customer
agrees to reproduce and include a statement of the ownership and proprietary
rights of JBA (or of such other person, firm or company as may be designated
by JBA) on any copies in whole or in part in any form, including partial
copies and modifications of the Software Product(s) made in accordance with
this Agreement. The Customer further agrees not to remove from any of the
Software Product(s) any statements
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appearing therein concerning copyright and proprietary rights.
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JBA SERVICES TERMS AND CONDITIONS
--------------------------------------------------------------------------------
1) SCOPE
JBA agrees to supply the Customer with services as described here in as and
when required by the Customer. The nature and cost of these services will be
as agreed between the Customer and JBA and documented in a Service Estimate
Form.
2) DELIVERABLE
JBA shall provide, when available, as integral parts of this Agreement:
- One copy of the functional specifications for the services task to be
provided,
- One copy of any software and control procedures written by JBA for the
Customer in both machine readable and source forms; and
- Software test results as far as is reasonably possible using JBA's
provided data on either JBA's or, by agreement, the Customer's computer.
3) FUNCTIONAL SPECIFICATIONS
The functional specifications for any specific services tasks shall
constitute the complete agreement between the parties with respect to such
functional specifications. As used in these JBA Services Terms and
Conditions, the term "errors" shall mean deviations from the functional
specifications.
4) ACCEPTANCE
a) Promptly after installation of the software, the Customer shall supply
test data which, in the reasonable opinion of the Customer is suitable to
test whether the software is in accordance with the functional
specifications. The Customer shall test the software on the equipment as
agreed with JBA, or subject to the receipt of such data, JBA shall test the
software in the presence of the Customer or its authorized representative on
a JBA computer. Acceptance testing shall be done within seven (7) days after
receipt of the test data, at a time mutually convenient to both parties.
b) The software shall be deemed accepted when it has processed the test data
in accordance with the functional specifications. The Customer shall sign an
acceptance certificate acknowledging such acceptance.
c) If the Customer fails to supply any test data as aforesaid or shall fail
to make itself available to attend acceptance tests or shall fail to test
the data itself within the said period of seven (7) days, then the Customer
shall be deemed to have accepted the software.
5) WARRANTY
JBA warrants that the software will operate in accordance with its
functional specifications. If it does not, JBA will correct errors in the
software for a period of ninety (90) days after acceptance. Any programs
which are used exclusively at year end will be corrected by JBA for a period
of thirty one (31) days after the Customer's year end. The foregoing sets
forth JBA's sole obligation and the Customer's exclusive remedy for breach
of the warranty set forth above.
6) SOFTWARE SERVICES SUPPORT
Subject to payment of the Software Services Support charge set forth below,
JBA will provide on-going software support services upon expiration of the
ninety (90) day limited warranty period. Software Services Support is
offered for a period of twelve (12) months, renewable automatically on each
anniversary date, unless the Customer terminates on-going Software Support
Services with at least thirty (30) days notice prior to such anniversary
date.
Software Services Support consists of the following:
a) JBA will promptly correct any errors which seriously effect operation of
the software.
b) JBA will visit the site where deemed necessary by JBA and the Customer.
7) SOFTWARE SERVICES SUPPORT CHARGE
a) The Software Services Support charge is the percentage set forth in the
relevant Service Estimate Form applied to the cost of the services as
invoiced by JBA to the Customer. b) JBA shall have the right on written
notice to change the percentage referred to above by up to one percent (1%)
on any renewal date.
8) OWNERSHIP
The Customer hereby acknowledges that any software, documentation,
specifications or other materials which may be created or developed by JBA
in Connection with the services hereunder (including any copyright and other
intellectual property rights), shall be the exclusive property of JBA. JBA
grants to
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the Customer with effect from the date of acceptance of the software and its
associated documentation a non-exclusive, non-transferable license to use
such software and its associated documentation in accordance with the terms
of Clause 2 of the JBA Software Produce(s) Terms and Conditions.
9) SPECIFICATION CHANGES
Schedule A outlines common examples of service errors and Schedule B
outlines common examples of programming work that would be a specification
change and as such would be charged separately and additionally by JBA.
10) PROGRESS
The Customer and XXX shall jointly prepare and agree to an implementation
plan for each task performed by JBA. Joint progress meetings shall be held
regularly throughout the project to monitor progress against the
implementation plan and to set objectives for the next period, to clear any
outstanding problems and to review and amend target dates for both JBA's and
the Customer's tasks as required by changing circumstances. These meetings
will normally be held monthly on mutually convenient dates. The work content
of this Agreement may be extended or reduced as agreed jointly, in writing,
by JBA and the Customer. Requested changes to the work content shall be with
written notice to JBA by the Customer. JBA will respond with a Service
Estimate Form that the Customer may reject or countersign.
11) The Customer shall promptly Provide JBA with any cooperation and information
that JBA may require from time to time to enable JBA to perform its
obligations under this Agreement.
12) The Customer shall permit employees, agents and subcontractors of JBA safe
access to the Customer's premises and shall provide adequate free working
space, equipment data, support and such other facilities as may be necessary
to enable JBA to perform its obligations under this Agreement. The Customer
shall also provide to JBA all information services and facilities which are
specified in any implementation plan, Service Estimate Form or such other
similar document which has been agreed to between the Customer and JBA.
13) The Customer shall indemnify JBA and hold JBA harmless from and against all
losses, claims, damages, costs and expenses which JBA may incur as a result
of work done in accordance with instructions supplied by the Customer or the
use by JBA of any information, data or material supplied by the Customer for
the purpose of enabling JBA to perform its obligations under this Agreement
which in either case infringes the intellectual property or other rights of
any third party.
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SCHEDULE A
EXAMPLES OF SERVICE ERRORS
--------------------------------------------------------------------------------
1) Incorrect calculation (for example a column not adding up to a total).
2) Data printed or displayed from the wrong field, or missing.
3) Spelling mistakes.
4) Incorrect updating of disk records.
5) Messages such as: 'Invalid record update' 'Duplicate add-to' 'Divide by zero
attempted' 'Array index zero' 'Attempted update before input'
6) Data carried from one program to another incorrectly.
7) Error message displayed or printed incorrectly.
8) Fields overlapping on printout of screen display.
9) Selection/exception reports/displays not selecting properly.
10) Other deviations from the specifications created by JBA and agreed by the
Customer.
SCHEDULE B
EXAMPLES OF SPECIFICATION CHANGES
--------------------------------------------------------------------------------
1) Data missing or wrong on display/reports because data omitted from the
specification in that display/report.
2) Significant changes to the format and positioning of data on printouts and
screen displays.
3) Any situation requiring new data to be introduced into the programs that is
not in the specification.
4) New requirements for calculations or processing involving hitherto
undisclosed or unsuspected sets of circumstances or conditions.
5) New programs not in the specification.
6) Technical assistance (hand-holding) to help determine operating problems, to
help detect data errors or to help customer staff with non-JBA software and
non-JBA messages over and above inclusive support detailed in the Schedule.
7) Additional data (or removal of data) on displays or reports.
8) New selection/exception features on reports/ displays.
9) Addition/removal of edit checks.
10) Changes to catalogued procedures.
11) Changes to edit programs involving new validation checks, new output or new
updating not in the specification.
12) Any changes requiring new files, not in the specification.
SCHEDULE C
INCIDENTAL EXPENSES
--------------------------------------------------------------------------------
ITEM
Special deliveries by courier
Staff traveling
- Car
- Air
- Taxi
- Rail
- Hotel expenses for overnight stays
- International telephone calls
CHARGE
At Cost
JBA Mileage
Economy
At Cost
Second Class
At Cost
At Cost
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ADDENDUM TO AGREEMENT NO. 119803104 BETWEEN
SIRENA APPAREL GROUP. INC.
AND
JBA INTERNATIONAL, INC.
This addendum shall serve to amend and supplement any terms and/or language
contained in Agreement Number 119803104 and its incorporated Schedule(s).
JBA GENERAL TERMS AND CONDITIONS
11) WAIVER
Additionally:
"The waiver by the Customer of a breach or default of any of the provisions of
the Agreement by JBA shall not be construed as a waiver of any succeeding breach
of the same or other provisions, nor shall any delay or omission on the part of
the Customer to exercise or avail itself of any right power or privilege that it
has or may have hereunder operate as a waiver of any breach or default by JBA."
12) SEVERANCE
Line 9 through line 14 delete the sentence "the parties agree
to..............unenforceable provision."
13) STAFF ALLOCATION
Additionally-.
"The Customer shall have the right to request replacement of JBA staff allocated
in furnishing services under the Agreement. The Customer agrees to give JBA the
opportunity to work out a solution to avoid replacement of JBA Staff. If a
workable solution cannot be reached between the parties, the Customer agrees
that JBA will require a thirty (30) day transition period and such transition
may cause delays in the implementation."
15) INTELLECTUAL PROPERTY INDEMNITY
c)iv) delete "pro-rated over a five (5) year term from the date of this
Agreement."
JBA SOFTWARE PRODUCT(S) TERMS AND CONDITIONS
DEFINITIONS
Line 18 after "employee" insert ", temporaries or independent contractors"
Line 18 after "Customer" Insert "(as long as such temporaries or independent
contractors sign a confidentiality agreement, are not a competitor of JBA's and
are bound by the Terms and Conditions of this Agreement)"
6) WARRANTY SERVICES
c) bullet 4 after "Implement" insert "reasonable"
10) CANCELLATION OF LICENSE Line 29 after "officer" insert" "on behalf"
Additionally: "Notwithstanding the foregoing the license granted hereunder may
not be terminated by JBA if the Customer fails to pay any sum due in respect of
support and maintenance service that is subject to a bonafide dispute."
Initials Date
Customer /s/ MBN 3/31/98
------------------------
JBA /s/ MJC 3/31/98
------------------------
1
16
ADDENDUM TO AGREEMENT NO. 119803104 BETWEEN
SIRENA APPAREL GROUP. INC.
AND
JBA INTERNATIONAL, INC.
14) CONFIDENTIALITY
Line 10 after "security" insert ", backup, archival or disaster recovery"
JBA SERVICES TERMS AND CONDITIONS
11)
Line 3 after "may" insert "reasonably"
13)
Additionally:
"However, the Customer will indemnify JBA only to the extent that the
instructions contributed to the infringement and not to the extent that improper
execution (given there are alternative solutions) created the infringement."
Initials Date
Customer /s/ MBN 3/31/98
------------------------
JBA /s/ MJC 3/31/98
------------------------
2
17
THE SIRENA APPAREL GROUP, INC. AGREEMENT NO.: 119803104
SCHEDULE D-1
JBA USER-BASED SOFTWARE PRODUCT(S)
JBA will provide the following software product(s) for installation on the
customer's computer(s) as follows:
EQUIPMENT PROCESSOR MANUFACTURER'S PROCESSOR
LOCATION MANUFACTURER OPERATING SOFTWARE TYPE MODEL NO. SERIAL NO.
--------- ------------ ------------------ --------- --------- ----------
South El Monte, CA IBM OS400
SOFTWARE PRODUCT(S)
CODE VERSION DESCRIPTION
---- ------- -----------
FINANCIAL BASE BUNDLE
SL ACCOUNTS RECEIVABLE
GA ADVANCED GENERAL LEDGER (Incl. Fin. Mgr.)
FL ACCOUNTS PAYABLE
FI ADVANCED FINANCIAL INTERGRATOR
CS CASH MANAGEMENT
STYLE PRODUCTION BASE BUNDLE
PC PRODUCTION ORDER CONTROL
MP MASTER PRODUCTION SCHEDULING
MR MATERIAL REQUIREMENTS PLANNING
PD PRODUCT DEFINITION MANAGEMENT
SP STYLE PRODUCTION
STYLE DISTRIBUTION BASE BUNDLE
IN INVENTORY MANAGEMENT
SA SALES ANALYSIS
CR CUSTOMER RETURNS
FC FORECASTING
PM PURCHASE MANAGEMENT
DR DISTRIBUTION REQUIREMENTS PLANNING
RQ PURCHASE REQUISITION
OE SALES ORDER PROCESSING
ST STYLE DISTRIBUTION
WH WAREHOUSE MANAGEMENT
SM SYSTEM 21 AS/SYSTEM MANAGER
AI EDI APPLICATION INTERFACE
------------
NUMBER OF USERS: 100
------------
------------
TOTAL USER LICENSE FEES: $ 518,000.00
=============
PAYMENT OF TERMS:
25% upon contract execution
50% upon installation of software product(s), no later than
May __, 1998
10% due no later than July 6, 1998
15% due no later than October 16, 1998
Initials Date
JBA /s/ MJC 3/31/98
------------------------
Customer /s/ MBN 3/31/98
-----------------------------
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THE SIRENA APPAREL GROUP, INC. AGREEMENT NO.: 119803104
SCHEDULE D-2
JBA SEAT-BASED SOFTWARE PRODUCE(S)
JBA will provide the following software product(s) for installation on the
customer's computer(s) as follows:
EQUIPMENT PROCESSOR MANUFACTURER'S PROCESSOR
LOCATION MANUFACTURER OPERATING SOFTWARE TYPE MODEL NO. SERIAL NO.
--------- ------------ ------------------ --------- --------- ----------
South El Monte, CA IBM OS400
SOFTWARE PRODUCT(S)
CODE VERSION DESCRIPTION # OF SEATS
---- ------- ----------- ----------
DG SCREEN DESIGNER 1
VS VISUALISE 1
FLAT CHARGE SOFTWARE PRODUCT(S):
CODE VERSION DESCRIPTION
---- ------- -----------
V JBA OBJECTS/VISION FINANCIALS
V JBA OBJECTS/VISION STYLE
CSFN MENTOR SET-FINANCIALS
CSSD MENTOR SET-STYLE DISTRIBUTION
CSSP MENTOR SET-STYLE PRODUCTION
------------
------------
TOTAL LICENSE FEE: $ 20,000.00
============
PAYMENT TERMS:
25% upon contract execution
50% upon installation of software product(s), no later than May __,
1998
10% due no later than July 6, 1998
15% due no later than October 16, 1998
Initials Date
JBA /s/ MJC 3/31/98
-----------------------------
Customer /s/ MBN 3/31/98
-------------------------
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19
THE SIRENA APPAREL GROUP, INC. AGREEMENT NO.: 119803104
SCHEDULE E
THIRD PARTY PRODUCT(S)
JBA WILL PROVIDE THE FOLLOWING SOFTWARE PRODUCT(S) FOR INSTALLATION ON THE
CUSTOMER'S COMPUTER(S) AS FOLLOWS:
EQUIPMENT PROCESSOR MANUFACTURER'S PROCESSOR MODEL SERIAL
LOCATION MANUFACTURER OPERATING SOFTWARE TYPE NO. NO.
South El Monte, CA IBM OS400
SOFTWARE PRODUCT(S)
CODE VERSION DESCRIPTION # OF SEATS
---- ------- ----------- ----------
OP JBA OBJECTS-PERSONAL 10
OL jba objects-enterprise 2
OM JBA OBJECTS-ADMINISTRATOR 1
ONI jba objects-nt smarteerver(1) 1
VG JBA VISION-USER 20
VH JBA VISION-DEVELOPER 2
VNI JBA VISION-NT VISION SERVER(1)-INCL. ONI 1
-----------
-----------
TOTAL THIRD PARTY LICENSE FEE: $ 62,000.00
===========
PAYMENT TERMS:
25% upon contract execution
50% upon installation of software product(s), no later than May __,
1998
10% due no later than July 6, 1998
15% due no later than October 16, 1998
Initials Date
JBA /s/ MJC 3/31/98
------------------------
Customer /s/ MBN 3/31/98
-----------------------------
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