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EXHIBIT 10.1
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SERVICE AGREEMENT
Customer Name:
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Address: Primary Contact::
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Voice phone:
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City: Facsimile:
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State: ZIP: e-mail:
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This Agreement remains in effect for one year from (the "Effective Date"), and
then from month to month at then-current rates. The attached Service Details,
Uniform Customer Requirements, General Terms and Conditions and any other
attachments to this Agreement are a part of this Agreement. Any early
termination by Customer requires a minimum of 60 days notice and full payment of
all fees that have accrued by such date.
SERVICES: Customer requests, and viaLink agrees to provide, the following
selected Services:
SYNCLINK(R) VIALINK PARTNER PACKAGE DISTRIBULINK
-- -- --
UCCNET SERVICE Other:
-- -- ---------------------------------
The attached Service Details page(s) describe each selected Service.
THE ATTACHED SERVICE DETAILS AND QUOTED RATES ARE BASED ON INFORMATION PROVIDED
BY CUSTOMER. IF SUCH INFORMATION CHANGES OR IS INACCURATE, CHARGES MAY BE
INCREASED BASED ON VIALINK'S THEN CURRENT RATES FOR SIMILARLY SITUATED
CUSTOMERS. RATES FOR ADDITIONAL SERVICE REQUESTS SUCH AS EXTRA TRAINING
SESSIONS, SUPPLEMENTAL IMPLEMENTATION SERVICES (FOR WHATEVER REASON, INCLUDING
TRADING PARTNER REQUESTS), OR EXTRA PROJECT MANAGEMENT TIME WILL BE AT VIALINK'S
THEN CURRENT RATES UNLESS OTHERWISE AGREED UPON IN WRITING BY THE PARTIES.
This Agreement is effective only if fully executed on or before _____.
CUSTOMER: THE
VIALINK COMPANY
BY: BY:
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(signature) (signature)
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(name and title) (name and title)
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UNIFORM CUSTOMER REQUIREMENTS
The following requirements may not apply to all customers or viaLink services,
but for purposes of this Agreement those requirements which do apply to Customer
shall be considered as a part of this Agreement:
1. The first trading partner Connection made during implementation must be with
an existing viaLink customer. Each of Customer's other viaLink trading partners
must have executed an applicable contract with viaLink and completed
implementation by viaLink before the additional Connections with those trading
partners can be completed.
2. Customer shall commit appropriate resources to enable viaLink's completion of
implementation activities. In this regard, Customer shall assign knowledgeable
individuals within Customer's organization for the purposes of acquiring or
clarifying data content and Customer shall designate a primary point of contact
(i.e., a project manager) and identify appropriate resources for assistance as
required during implementation. Customer shall provide a valid e-mail address
for receipt of viaLink reports.
3. Travel, meal, accommodation, and related costs incurred by viaLink are NOT
included in the prices for viaLink services unless so designated. Customer shall
reimburse viaLink at viaLink's cost for travel and other expenses requested by
Customer. Receipts will be required for all expenses, which will be paid by
Customer at viaLink's cost to as incurred.
4. The implementation period begins when
viaLink commences situation analysis
after the Effective Date and ends when viaLink advises Customer of the
completion of the initial data load. If (a) an implementation period has been
agreed upon, (b) implementation is not completed within the time agreed upon,
and (c) the delay is caused by an act or omission of Customer, then viaLink may
assign a project manager at Customer's cost for the purpose of completing
implementation. viaLink may then recalculate the implementation project charges
based on the additional time and materials needed and Customer shall pay viaLink
for the additional cost incurred by viaLink to complete implementation.
5. Customer shall allow viaLink and/or its representative to visit Customer
sites to verify and/or clarify, when necessary, Customer data content. Customer
shall allow viaLink access to alternate data sources, such as customer service
databases, that may assist viaLink in the event of additions or supplements to
Customer's data.
6. Each item of Customer's data file to be loaded into the viaLink data base
must contain the following components: item number, a unique product
identification code (UPC), item description, pack, innerpack, size units, size
units of measure, base/list cost, all retail selling units and shipping units
for each item (i.e., the items' family structure), single retail sale unit,
inner pack/inner case, case, shipper or display, and pallet. Scan-based trading
items delivered into a store must be communicated by Customer in the same units
as sold by the retailer.
7. Customer shall provide additional attribute values as required by trading
partners such as: brand, packaging, dimensions, and dimension codes, gross
weight and gross weight unit code, net weight and net weight unit code, cube
adjusted weight and cube adjusted weight unit code, height and height unit basis
code, width and width unit basis code, length and length unit basis code, volume
and volume unit basis code, number of cases per pallet layer, number of layers
per pallet, date product number of days, product available date, manufacturer
suggested retail price (MSRP), pre-priced indicator and pre-priced amount,
deposit value, purchase pack, retail pack, and similar data.
8. Following the initial file load, Customer shall transmit files reflecting
only change maintenance for item, price, and promotion data. Transactions using
the Services will be transmitted in the following order: item, then price, and
then promotion data. viaLink's ability to perform the Services is dependent upon
the integration by both trading partners of item synchronization into ongoing
business systems and processes used by the trading partners.
9. vPP service functionality is dependent upon (a) the ability of the retailer
trading partner to provide reliable item level scan sales by store on a daily
basis, and (b) the ability of the supplier to provide reliable delivery data by
item by store and Customer's ability to accept store-level data.
10. For vPP service, Customer and viaLink shall agree upon an initial schedule
and format of daily store specific item level scan sales data. Any changes to
the schedule or format must be agreed upon by both Customer and viaLink.
11. For sbtLink service, the data provider (a) assumes responsibility for
inventory counts, and shrink reports will be available only after the second
inventory count is received, (b) will provide separate debit/credit tickets for
individual departments within a store, and (c) shall limit delivery of any one
item to any one store from only one source (e.g., one route sales
representative, either a broker or via direct store delivery, etc.).
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OUT OF SCOPE;
THE FOLLOWING ARE NOT INCLUDED WITHIN THE SCOPE OF THIS AGREEMENT:
1. Services in connection with any number of items in excess of that number set
forth in this Agreement.
2. Software development of any kind for Customer's or viaLink's system, data
cleansing, or support and maintenance of Customer's systems.
3. Following commencement of implementation, any cost to upgrade or change the
format or protocol of Customer's data.
4. Performance by viaLink of the Services outside of the United States of
America.
5. Costs of delay attributable to Customer's trading partners.
6. Development or maintenance of data concerning product hierarchy of packages
containing more than one UPC, pallet configuration, or module.
7. Resynchronization, re-processing, or re-stating of Customer's data due to
Customer's choice, fault, delay, or omission.
8. Storage of images, Customer's internal classifications, or any additional
fields outside of viaLink's standard data fields or elements.
9. Reports of reuse of UPC or product codes.
10. Development, software, or configuration of EDI or other data formats or data
connectivity protocols.
11. Costs of any kind associated with implementation of any trading partner
business unit.
12. Processing of data regarding items for which there is no industry-recognized
standard item number available or a price per unit is quoted more frequently
than weekly.
13. Synchronization with route distributors or services in connection with
route-level settlement.
14. Accounting or settlement services.
ADDITIONAL SERVICES BEYOND THE SCOPE OF THIS AGREEMENT MAY, AS THE PARTIES
ELECT, BE MADE THE SUBJECT OF A SEPARATE AGREEMENT OR AN AMENDMENT TO THIS
AGREEMENT. UNLESS SPECIFICALLY ADDRESSED IN THIS AGREEMENT, VIALINK SHALL NOT BE
OBLIGATED TO PERFORM SERVICES OR INCUR COSTS IN CONNECTION WITH OR BY VIRTUE OF
THIS AGREEMENT. IF THE FACTS AND CIRCUMSTANCES SURROUNDING CUSTOMER'S BUSINESS
OR CUSTOMER'S USE OF VIALINK'S SERVICES CHANGE (FOR EXAMPLE, AS A RESULT OF
MERGER OR ACQUISITION), CHARGES FOR THE SERVICES MAY BE ADJUSTED BY VIALINK IN
ACCORDANCE WITH VIALINK'S NORMAL AND CUSTOMARY FEE STRUCTURE THEN IN EFFECT FOR
ANY SIMILARLY SITUATED CUSTOMER.
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GENERAL TERMS AND CONDITIONS
1. DEFINITIONS: "Agreement" means the signed
Service Agreement and all its
attachments, including these general terms and conditions. "Connection" means a
business relationship between business units of trading partners as identified
and configured within the Services under which any combination of item, price
and/or promotion information is processed by viaLink for any business unit
connected to any other business unit. "Data" means the digital information
provided by Customer or made available to Customer pursuant to this Agreement.
"Services" means those services identified in this Agreement to be performed by
viaLink.
2. CUSTOMER OBLIGATIONS: Customer must access viaLink's computers and submit or
retrieve Data therefrom by using only such methods and protocols approved by
viaLink. Customer is responsible for providing, maintaining and upgrading, at
its cost, the appropriate equipment, communication lines, software, connectivity
to the Internet, Internet Service Provider ("ISP") accounts and other services
which Customer uses to access the Services. Customer is responsible for all
costs and any maintenance associated therewith. viaLink will not pay any charges
for any other third party services (for example, VAN or RAS providers) for
Customer to access the Services. Customer is responsible for all charges and/or
expenses incurred by anyone using its account. Customer is responsible for any
loss or damage to its operations caused by defects, interruptions, or
malfunctions in or relating to the Services, including, without limitation, loss
or corruption of Data. Customer shall strictly adhere to all security measures,
instructions or guidelines concerning access to and/or use of the Services,
times of use and related procedures as required from time to time by viaLink.
Customer shall pay and shall hold viaLink harmless from any applicable sales,
use, excise, value added, utility or similar or other taxes relating to the
Services.
3. PAYMENT: All payments to viaLink are due within fifteen (15) days of receipt
of invoice unless otherwise stated in this Agreement. All payments shall be made
in U.S. dollars and are subject to interest charges equal to the lower of
eighteen (18) percent per annum or the maximum lawful interest rate if not paid
when due.
4. LICENSES: Any Data submitted by Customer pursuant to this Agreement may be
distributed by viaLink as necessary to provide the Services. This may include,
without limitation, distribution to or through a third party used or designated
by Customer in connection with the Services. Customer also gives viaLink the
right to publish and distribute standardized product identification codes (UPC
or equivalent) relating to the Data submitted by Customer. viaLink may use and
distribute Customer's name, logo (if any) and Customer's brand names and logos
(with appropriate trademarks as applicable), along with address, phone, e-mail
address and fax numbers: (i) as necessary to provide the Services; (ii) on
viaLink's customer lists or directories; or (iii) in communications to third
parties to promote use of the Services. Customer understands that neither this
Agreement nor the Services provided hereunder give Customer any rights in any of
the Data provided by other users of the Services or to other services offered by
viaLink and not subscribed to by Customer.
5. WARRANTY AND DISCLAIMERS: Customer warrants that it has the right to provide
any Data which it submits to viaLink pursuant to this Agreement and that all
such Data shall be accurate. Subject to Customer's satisfaction of the
requirements of this Agreement, viaLink will make the Services available during
this Agreement. THE FOREGOING WARRANTY IS EXCLUSIVE. VIALINK DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Further, viaLink does not warrant (i) that the availability of the Services will
be uninterrupted or without delays, (ii) that the Services or Data provided
thereby will be error free, (iii) that Data provided by others via the Services
will be accurate, (iv) against any Data discrepancies attributable to Customer's
failure to access the then current Data in a timely manner or to Customer's
errors in handling or using such Data or (v) that others who have provided Data
via the Services have the rights to make such Data or any portion thereof
available to Customer. Notwithstanding anything to the contrary in this
Agreement, viaLink expressly disclaims and makes no warranty or representation
regarding the capability or function of any third party product or service used
by Customer or at Customer's direction to connect or exchange information with
the Services, and viaLink shall not have any liability whatsoever regarding the
same. Any alleged breach of warranty by viaLink must be reported by Customer to
viaLink in writing or by e-mail within forty-eight (48) hours of performance of
the Services.
6. EXCLUSIVE REMEDIES: Limitations: For any breach of this Agreement by viaLink,
Customer agrees that its exclusive remedies shall be: (i) a reduction to the
total charge for the month during which such breach occurs up to an amount equal
to the percentage of the total month during which the Services were unavailable,
and (ii) if viaLink fails to restore performance of the Services within a thirty
(30) day period, Customer may terminate this Agreement. Customer agrees that in
no event shall viaLink's maximum aggregate liability to Customer under this
Agreement, under contract, tort or any other theory, exceed the amount actually
paid by Customer for the Services from which viaLink's liability, if any, arose,
for the three (3) month period immediately prior to such event which is the
cause of liability. In no event shall either party be liable to the other for
any exemplary, special, indirect, incidental or consequential damages,
including, without limiting the generality of the foregoing, any loss of
business, profits, savings, Data or goodwill, even if the party has been advised
of the possibility of such loss, had reason to know, or in fact knew of the
possibility thereof.
7. INDEMNIFICATION: viaLink shall, at its cost and expense, indemnify, defend,
and hold Customer harmless from any claims, demands, actions, suits,
proceedings, damages, costs, reasonable attorney fees or judgments which may be
brought against Customer based solely upon a claim that the Services infringe
any patent, copyright, trademark, or other intellectual property right of a
third party that exists as of the effective date of this Agreement and is
enforceable in the United States. Customer shall, at its cost and expense,
indemnify, defend and hold viaLink harmless from and against any claims,
demands, actions, suits, proceedings, damages, costs, reasonable attorney fees
or judgments which may be brought against viaLink or which viaLink may incur as
a result of or arising out of any of the acts or omissions by Customer or on
Customer's behalf relating to the Services. In each case where indemnification
is sought, the indemnified party must promptly notify the indemnifying party of
any claim. The indemnified party shall also give the indemnifying party, at the
indemnified party's expense, such information and assistance for the defense as
the indemnifying party may reasonably request.
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8. TERM AND TERMINATION: In addition to the rights provided elsewhere in this
Agreement, viaLink may immediately terminate this Agreement in the event that
Customer fails to pay any of the fees due for Services as they become due.
Either party may terminate this Agreement if the other party (a) commits a
breach of any other term of this Agreement and fails to cure the same within ten
(10) days of receipt of written notice thereof, (b) commits a material breach of
any other agreement made and entered into by and between viaLink and Customer,
or (c) becomes insolvent.
9. MUTUAL NON-DISCLOSURE: "Confidential Information" means all information with
respect to the business of a party who discloses it ("Disclosing Party") to the
other hereunder ("Receiving Party"), including but not limited to the marketing,
sales, processes, software, code, specifications, methods, inventions,
equipment, know-how, pricing and purchasing of the Disclosing Party which is
considered confidential by the Disclosing Party, except to the extent: (i) that
at the time of its receipt it was known to the Receiving Party as shown by
reasonable documentation; (ii) that was in, or enters into, the public domain
other than through wrongful disclosure; or (iii) it is disclosed to the
Receiving Party by a third party, which to the Receiving Party's knowledge is
not in breach of a confidentiality obligation to the Disclosing Party in
connection with such disclosure. Either party may use the Confidential
Information of the other only for the purpose of performing under this
Agreement. Except as otherwise provided for herein, neither party shall (i)
disclose Confidential Information to any third party unless authorized by the
Disclosing Party in advance in writing; (ii) disclose Confidential Information
to its employees, except those on a "need to know" basis (including employees of
its legal counsel and its auditors) as necessary for performance under this
Agreement and who have also signed a non-disclosure agreement substantially as
protective as the provisions hereof; or (iii) reverse engineer, disassemble or
decompile any prototype, software or other tangible objects or electronic files
which contain or reflect the Confidential Information. The Receiving Party
agrees that the obligations provided herein do not give it or any of its
employees any right or claim in or to any trademark, invention, or any
intellectual property that may belong to the Disclosing Party or any of its
affiliates. The furnishing of Confidential Information hereunder shall not
constitute or be construed as a grant of an express or implied license or other
right by the Disclosing Party pertaining to intellectual property rights. This
Agreement will not place on the Receiving Party any restriction on the
disclosure by the Receiving Party of any information which it may be legally
required to make: (a) under compulsion of any court or other body having the
legal power to compel disclosure; (b) under federal, state or local law; or (c)
pursuant to the requirement of any stock exchange on which its securities may be
listed. Notwithstanding the foregoing, the Receiving Party will make every
reasonable effort (i) to ensure that such disclosure is made in the strictest
confidence possible and (ii) to afford the Disclosing Party as much notice as
possible of the disclosure requirement so as to allow the Disclosing Party to
intervene in any proceeding to protect its rights hereunder.
10. OTHER: This Agreement constitutes the entire agreement between viaLink and
Customer and supersedes all prior agreements, representations, understandings
and communications, either verbal or in writing, between the parties. This
Agreement is binding upon and inures to the benefit of the parties' respective
successors and permitted assigns. This Agreement may only be amended by a
written amendment executed by officers of both parties. This Agreement and the
performance of the Services shall be governed by the laws of the State of Texas.
Any claim arisen out of or relating to this Agreement must be commenced within
one (1) year from the date such claim shall have first arisen and shall be
brought in a court of competent jurisdiction in Dallas County, Texas. Neither
party shall be responsible for failure of performance due to any cause(s) beyond
its reasonable control, including without limitation, accidents, Acts of God,
interruptions of Internet service, terrorism, crime, failures of third parties
and/or common carriers, or labor disputes. viaLink may sell or assign its rights
and obligations under this Agreement; provided, however, if the person or entity
acquiring the rights of viaLink hereunder does not agree to abide by all the
obligations of viaLink under this Agreement, Customer may terminate this
Agreement upon 30 days written notice. Customer shall not transfer, assign,
provide or resell the Services to any other person. If any provision of this
Agreement is found to be invalid or unenforceable, it shall be ineffective only
to the minimum extent necessary, without invalidating the rest of this Agreement
or affecting the validity or enforceability of the other provisions of this
Agreement. Any waiver by a party of any breach of any provision of this
Agreement shall not be construed as a waiver of any continuing or succeeding
breach of such provision. All notices pursuant to this Agreement shall be made
in writing and shall be personally delivered, mailed by certified mail, postage
prepaid, or sent by overnight courier to the receiving party at the address
first written above or to such other address as may be communicated in writing
to the other party. The obligations of the parties which by their nature accrue
and remain owing notwithstanding termination of this Agreement (such as
Customer's obligation to pay for Services rendered and the parties'
confidentiality obligations) shall survive termination of this Agreement.
Customer acknowledges and agrees that viaLink may utilize third party assistance
(such as trainers or implementers) in performing certain of its duties and
obligations under this Agreement. Customer hereby authorizes viaLink to
communicate with and take direction from such of Customer's other service
providers (such as information technology consultants) as have been designated
by Customer as having applicable authority with respect to viaLink and the
Services.
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SERVICE DETAILS
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