EXHIBIT 10.2
ACCPAC (Logo) ACCPAC Agreement No.: 01-02114
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is entered into as of March 15, 2001,
by and between ACCPAC International, Inc., a Delaware corporation ("ACCPAC"),
with its principal place of business at 0000 Xxxx Xxxxxx Xxxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000 and NoMatterWare Inc., a Nevada corporation
("Developer"), with its principal place of business at 000 0xx XX, Xxxxx 0000,
Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx.
RECITALS
A. ACCPAC has developed, and is currently marketing a desktop
accounting software program currently know as "Simply Accounting" (the
"Product").
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B. Developer is in the business of developing on-line applications of
software programs. Developer also provides ASP hosting services for on-line
software programs as part of its "iBusiness solution" currently being marketed
by Developer (the "iBusiness Solution").
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C. The parties desire Developer to (i) develop a version of the Product
which will be operable over the Internet on a stand alone basis and which may
also be accessible through an ASP hosting service (the "Web-enabled Product"),
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(ii) host the Web-enabled Product on a non-exclusive basis as part of
Developer's iBusiness Solution, (iii) license to ACCPAC, on a non-exclusive
basis, the right for ACCPAC to host Developer's iBusiness Solution through
ACCPAC's ASP hosting services, and (iv) share in ACCPAC's profits from the sale
of the Web-enabled Product, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
AGREEMENT
1. Development of the Web-enabled Product.
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1.1 Development License. Subject to all the terms and conditions of
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this Agreement, ACCPAC grants to Developer a personal, nonsublicensable,
nontransferable, nonexclusive, terminable limited license to use the Simply
Accounting Software Developer's Kit and to access, use and modify the source
code to the Product (the "Source Code") for the sole purpose of developing the
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Web-enabled Product as set forth herein.
1.2 Restrictions and Protection of Source Code. No rights with respect
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to the Source Code are granted to Developer hereunder except for the limited
license for the purpose contemplated herein, and all such other rights are
retained by ACCPAC. Other than as expressly permitted herein to the extent
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Confidential Page 1 of 8 March 15, 2001
reasonably required in connection with Developer's development of the
Web-enabled Product, and without limiting the above, Developer may not
reproduce, duplicate or copy the Source Code, or any portion thereof, reverse
engineer, decompile or disassemble the Source Code, or modify, or create
derivative works based upon the Source Code, in whole or in part, or rent, sell,
distribute, market or commercialize any components of the Source Code or use it
for the benefit of any third party. In addition, Developer may not remove any
proprietary notices or labels on the Source Code.
1.2.1 Access to Source Code. Developer shall only provide access
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to the Source Code, or any portion thereof, to its employees who: (i) work
directly on the work contemplated hereunder; (ii) require such access in
connection with their development efforts; and (iii) have executed a
"Non-Disclosure Agreement" in the form attached hereto as Exhibit A prior to
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gaining such access. In addition to the confidentiality obligations of Section 8
below, Developer shall maintain the Source Code in a secure location, accessible
only to those entitled to access hereunder, and must keep a log of its employees
who access the Source Code, which log must be supplied to ACCPAC upon written
request and on completion of the development of the Web-enabled Product by
Developer, but in any event must be supplied no later than prior to the
termination of this Agreement. Developer shall also take all other precautions
to protect the confidentiality of the Source Code at least to the same extent as
Developer does so with respect to its most confidential information. All Source
Code, and portions and derivatives thereof, within Developer's possession or
control must be returned by Developer to ACCPAC, or destroyed if so requested by
ACCPAC in writing, within three (3) days of ACCPAC's acceptance of the final
Milestone.
1.3 Developer's Development Requirements. Developer agrees to use its
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best efforts in performing the development work, including quality assurance
testing, for the Web-enabled Product, at a level consistent with or higher than
persons having a similar level of education, experience and expertise in the
software industry. The Web-enabled Product shall be developed, at Developer's
sole cost and expense, in accordance with the development schedule and shall
meet or exceed the specifications to be agreed upon by the parties and attached
hereto as Exhibit B (the "Milestones and Specifications") no later than March
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31, 2001. Such Milestones and Specifications shall include, but not be limited
to the following: the Web-enabled Product shall (i) have the same "look and
feel" as Version 8.0 of the Product; (ii) have the same file structures as
Version 8.0 of the Product; (iii) have essentially the same functionality as
Version 8.0 of the Product; (iv) run natively in a Web browser without the aid
of any hosting platform such as Citrix MetaFrame or Windows Terminal Server; (v)
be written primarily in Cold Fusion with partial coding in Java, and Java Script
running on SQL Server 2000; and (vi) use Crystal Reports for the Web as its
report engine. Developer shall assign at least four (4) full time programmers to
the development of the Web-enabled Product.
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1.3.1 Approval of Milestones. Development of the Web-enabled
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Product is predicated on ACCPAC's written approval of the Milestones and
Specifications to be attached as Exhibit B, and each new phase of development,
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and any additions or modifications to the Milestones and Specifications, must be
approved in writing by ACCPAC in advance before Developer may continue its
development work hereunder. In addition, the Web-enabled Product must be
approved by ACCPAC in writing prior to the commercial release of the Web-enabled
Product. The delivery of each Milestone, including the final, gold master
Milestone must be accompanied by all source materials for the Web-enabled
Product and all related data and information deemed necessary by ACCPAC.
1.4 ACCPAC's Development Obligations. ACCPAC's sole responsibility with
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respect to the development of the Web-enabled Product will be to provide the
Simply Accounting Software Developer's Kit and the Source Code, and provide
access to technical resources to enable Developer to understand and work with
the Simply Accounting Software Developer's Kit and the Source Code for the
purpose of developing the Web-enabled Product. ACCPAC also agrees to provide
limited quality assurance testing to verify the readiness of the Web-enabled
Product for general release; provided, however, that ACCPAC shall not have any
obligations whatsoever to correct any bugs, defects or errors it may uncover
during such limited quality assurance testing. If, and to the extent, that
ACCPAC performs any development services which are otherwise the obligation of
Licensor hereunder, Licensor hereby grants ACCPAC the limited license to perform
such development services, if any license is required from Developer, and ACCPAC
shall be entitled to offset the costs for such development services against
amounts owed to Developer hereunder.
1.5 Ownership. Developer acknowledges and agrees that ACCPAC owns all
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right, title and interest in and to the Product and the Proprietary Information
(defined below) related thereto, and will own all right, title and interest in
and to the Web-enabled Product and all products, materials, reports or other
data developed under the terms of this Agreement (collectively, the "Work").
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Developer agrees and acknowledges that the Work shall be considered a "work made
for hire," that Developer has no claim to any right, title or interest in the
Work developed pursuant to the terms of this Agreement or otherwise, and that
Developer will make no claims that the Work infringes upon the copyright or
other right, title or interest of Developer and that the Work shall, upon
creation, be owned exclusively by ACCPAC. If and to the extent Developer may,
under applicable law, be entitled to claim any ownership interest in the Work,
Developer hereby transfers, grants, conveys, assigns and relinquishes
exclusively to ACCPAC all of Developer's right, title and interest in and to the
Work, under patent, copyright, trade secret, trademark and other similar law or
right, in perpetuity. Developer agrees and acknowledges that ACCPAC may utilize
the Work in any other software program or license or sell the Work for
incorporation into or as a basis for producing other products or otherwise
exploiting the Work at the sole discretion of ACCPAC without the payment of any
royalty or other fee to Developer except as specifically set forth in Section 5.
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Any assignment of copyright hereunder includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known as
or referred to as "moral rights", and Developer consents to any action of ACCPAC
that would violate such "moral rights" in those countries that may not allow an
assignment of "moral rights". Developer agrees to execute any further documents
and agreements, as may be requested by ACCPAC from time to time, to evidence
ownership of the copyright or other proprietary rights in the Work in the
exclusive name of ACCPAC and to confirm any waivers or consents regarding "moral
rights".
1.5.1 Ownership of iBusiness Solution Integration Component.
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Notwithstanding Section 1.5 above, the parties hereby agree that, to the extent
Developer develops software to integrate the Web-enabled Product to operate
within Developer's iBusiness Solution, Developer shall own all right, title and
interest in and to such iBusiness Solution integration component.
2. Exploitation and Marketing of the Web-enabled Product. As between the
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parties, ACCPAC shall exclusively and in its sole discretion determine the
manner in which the Web-enabled Product is marketed, rented, sold and
distributed by ACCPAC, including without limitation, the methods of pricing,
packaging, labeling and identification, manufacturing, advertising, promoting,
and collection and ownership of customers' names. ACCPAC's rights include, but
are not limited to, the right to license the Web-enabled Product to other third
parties and to host the Web-enabled Product at ACCPAC Online and/or through any
other ASP hosting service. Developer shall have no rights to exploit the
Web-enabled Product except as provided in this Agreement.
2.1 Hosting by Developer. Notwithstanding Section 2 above, Developer
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agrees to join the ACCPAC ASP Partner Program and the Simply Consultant Program
in order to obtain the right under such programs to host the Web-enabled Product
as either a stand-alone solution or integrated into Developer's iBusiness
Solution. The terms and conditions under which Developer may host the
Web-enabled Product, as well as Developer's rights and obligations with respect
to such hosting, shall be governed by such other ACCPAC Programs.
3. Hosting of Developer's iBusiness Solution by ACCPAC. Developer hereby grants
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to ACCPAC the non-exclusive right to host Developer's iBusiness Solution on
ACCPAC Online and other ACCPAC online services, if any, in accordance with terms
and conditions to be agreed to by the parties.
4. Training and Technical Support. Developer will provide technical support and
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technical support training in the use and operation of the Web-enabled Product
to ACCPAC, as needed in ACCPAC's reasonable discretion, at no cost to ACCPAC. In
addition to any technical support required to be performed under a warranty set
forth in this Agreement, such technical support and technical support training
shall ensure that ACCPAC is able to provide high-quality technical support to
the end-users of the Web-enabled Product and to enable ACCPAC to develop future
modifications, improvements and upgrades to the Web-enabled Product. ACCPAC may,
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at its option, require Developer to provide technical support for the
Web-enabled Product to end-users and continue to maintain the Web-enabled
Product Source Code on an outsourced basis, on terms to be agreed upon by the
parties.
5. Payment.
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5.1 Revenue Share. In consideration for Developer's complete and
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successful development of the Web-enabled Product to ACCPAC's satisfaction,
ACCPAC shall pay to Developer a development fee equal to fifty percent (50%) of
ACCPAC's Net Revenue received from sales of the Web-enabled Product by ACCPAC
during the twelve (12) month period commencing upon the date that the
Web-enabled Product first becomes generally available for release and sale, as
determined by ACCPAC in its reasonable discretion (the "Release Date"). On a
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quarterly basis, no later than forty-five (45) days after the end of each
calendar quarter, ACCPAC shall provide Developer a report summarizing sales
activity for the Web-enabled Product for the previous calendar quarter together
with amounts due and owing to Developer thereunder. After such twelve (12) month
period, ACCPAC shall have no further reporting obligations to Developer and all
revenue from the sale of the Web-enabled Product shall accrue to ACCPAC. "Net
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Revenue" shall mean one-third of the suggested retail price ("SRP") of the
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Web-enabled Product. The SRP shall be set by ACCPAC in its sole discretion.,.
ACCPAC makes no representations or warranties that any minimum level of revenue
will be achieved.
5.2 No Other Payments. Developer shall have no right under this
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Agreement to receive any compensation or reimbursement, or to share in revenues
from any ACCPAC product or service, other than as provided in Section 5.1.
5.3 Books, Records and Audit Rights. Developer or its agents may audit
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the books and records of ACCPAC as they relate to any sales activity reports and
any payments due from ACCPAC to Developer hereunder in order to verify the
accuracy of same. Developer may review such items only within one (1) year of
the dates of such reports, and only once per reporting period, during ACCPAC's
normal business hours upon reasonable notice of at least ten (10) business days.
The cost of the audit(s) will be borne by Developer, and any undisputed
discrepancy brought to ACCPAC's attention shall be corrected within thirty (30)
days. ACCPAC shall maintain such books and records for a period of one (1) year
following the applicable sales activity reports.
6. Representations and Warranties of Developer; Indemnification.
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6.1 Representations and Warranties. Developer represents and warrants
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that Developer is the sole and exclusive owner of all rights in Developer's
contributions to the Work; that Developer has not previously granted, assigned
or licensed and will not grant, assign or license any right, title or interest
in the Work to any third party; and the rights granted herein and Developer's
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Confidential Page 5 of 8 March 15, 2001
contributions to the Work will not infringe upon the rights of any other person
or entity, shall not violate or infringe any United States or foreign patent,
trademark, trade secret, trade name, copyright or similar law or right, or
breach or require payments from ACCPAC to any third party, or cause a default
under Developer's organizational documents or any agreements entered into by
Developer; that the Work will be merchantable and fit for use on the computer
systems for which the Work is intended to be used; that the Work does not
contain any defamatory or libelous material; that Developer will perform the
Work in accordance with the Milestones and Specifications; that each of
Developer's employees who have been or will be involved with the development of
the Work, or who will have access to any confidential information of ACCPAC,
including the Work, will have signed, before beginning such involvement, a
Non-Disclosure Agreement in the form of Exhibit A hereto; that Developer and
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each of Developer's employees who have been or will be involved with the
development of the Work is fully qualified to perform the Work in compliance
with all laws of the United States; and that Developer has full power to enter
into this Agreement, to carry out its obligations and to grant the rights
purported to be granted to ACCPAC under this Agreement.
6.2 Indemnification. Developer will indemnify ACCPAC and its customers
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and licensees for, and hold them harmless from, any loss, expense (including
reasonable attorneys' fees), damage or liability arising out of any claim,
demand or suit resulting from Developer's development of the Work, a breach of
any of the representations or warranties of Developer in this Agreement or any
related nondisclosure and confidentiality agreement between the parties. ACCPAC
will inform Developer in writing of any such claim, demand or suit and ACCPAC
may cooperate in the defense with Developer. Developer will not agree to the
settlement of any such claim, demand or suit prior to a final judgment thereon
without the prior written consent of ACCPAC.
7. Disclaimer of Warranties by ACCPAC; Limitation of Liability. ACCPAC MAKES NO
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REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOURCE
CODE OR ANY OTHER MATTER RELATED TO THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ACCPAC SHALL NOT BE SUBJECT TO ANY LIABILITY, IN CONTRACT,
TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THE SOURCE CODE OR
THIS AGREEMENT. IN PARTICULAR, BUT WITHOUT LIMITATION OF THE FOREGOING, ACCPAC
SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
8. Confidentiality. Developer acknowledges that, in the course of accessing and
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using the Source Code and performing its duties under this Agreement, it may
obtain or develop information relating to the Source Code and/or to ACCPAC
and/or ACCPAC's other products and services ("Proprietary Information"),
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including, but not limited to, the Source Code, code, technology, know-how,
ideas, algorithms, testing procedures, structure, interfaces, documentation,
problem reports, development schedule, analysis and performance information, and
other technical, business, product, marketing and financial information, plans
and data. During and after the term of this Agreement, Developer shall hold in
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confidence and protect, and shall not use (except as expressly authorized by
this Agreement) or disclose, Proprietary Information, unless such Proprietary
Information becomes part of the public domain without breach of this Agreement
by Developer, its officers, directors, employees or agents. Developer will not
export, re-export or remove from the United States the Source Code, Proprietary
Information or any direct product or portion thereof. Developer acknowledges and
agrees that due to the unique nature of ACCPAC's Proprietary Information, there
can be no adequate remedy at law for any breach of its obligations hereunder or
under any other nondisclosure or confidentiality agreement between the parties,
that any such breach may allow Developer or third parties to unfairly compete
with ACCPAC resulting in irreparable harm to ACCPAC, and therefore, that upon
any such breach or threat thereof, ACCPAC shall be entitled to an injunction and
other appropriate equitable relief in addition to whatever remedies it may have
at law. Developer shall return to ACCPAC, or at ACCPAC's election destroy, all
Proprietary Information within the possession or control of Developer within
three (3) days of ACCPAC's written request therefore, or upon the earlier
expiration or termination of this Agreement.
9. Termination. Unless earlier terminated, this Agreement shall automatically
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terminate twelve (12) months after the Release Date of the Web-enabled Product
by ACCPAC. This Agreement may be terminated by ACCPAC for any reason or no
reason upon thirty (30) days' prior written notice to Developer at the address
listed above, or immediately upon notice of any breach by Developer of the
provisions of this Agreement. Upon termination or expiration, Sections 1.5, 2,
5.3, 6 through 9, 11, and any Sections of this Agreement which by their terms
are intended to survive will remain in full force and effect, and Developer will
immediate cease all use of the Source Code and destroy all copies or portions
thereof, if any, in Developer's possession or control.
10. Independent Contractors. It is expressly agreed and understood that
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Developer, including its employees, is performing services under this Agreement
as an independent contractor for ACCPAC, and neither Developer nor any of its
employees is an employee or agent of ACCPAC. Developer shall have no authority
to contract for or bind ACCPAC in any manner and shall not represent itself as
an agent of ACCPAC or as otherwise authorized to act for or on behalf of ACCPAC.
All liability to the persons actually providing services, including, but not
limited to, payments of wages or other compensation, withholding of taxes and
similar charges related to such wages or other compensation, and workers'
compensation and unemployment insurance premiums or claims, shall be the sole
responsibility of Developer, and Developer agrees to indemnify ACCPAC for any
such payments requested of or required by ACCPAC.
11. Miscellaneous. Notices hereunder shall be sent in writing to a party at the
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address first set forth above and shall be deemed effective upon receipt.
Neither the rights nor the obligations arising under this Agreement are
assignable or transferable by Developer, and any such attempted assignment or
transfer shall be void and without effect. This Agreement shall be governed by
and construed in accordance with the laws of the State of California without
regard to conflicts of laws provisions thereof. In any action to enforce this
Agreement the prevailing party will be entitled to costs and attorneys' fees.
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Each party to this Agreement hereby submits to the jurisdiction of the courts of
the State of California, Alameda, County and to the federal courts of the U. S.
for the Northern District of California. In the event that any of the provisions
of this Agreement shall be held by a court or other tribunal of competent
jurisdiction to be unenforceable, such provisions shall be limited or eliminated
to the minimum extent necessary so that this Agreement shall otherwise remain in
full force and effect and enforceable. Developer's rights and remedies upon
breach of this Agreement are limited to Developer's rights, if any, to recover
damages in an action at law, and Developer shall not have the right to enjoin or
restrain or to seek to enjoin or restrain the sale, license, distribution or
marketing of any product of ACCPAC. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all written or oral agreements heretofore existing between the
parties hereto are expressly cancelled. No waiver or modification of this
Agreement will be binding upon either party unless made in a writing signed by
both parties and no failure or delay in enforcing any right will be deemed a
waiver. This Agreement may be executed in counterparts and via facsimile, each
of which shall be deemed an original instrument, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the date first set
forth above.
"ACCPAC" DEVELOPER
ACCPAC International, Inc. NoMatterWare Inc.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxx Xxxxxxxxx
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Name (Print): Xxxxx X. Xxxx Name (Print): Xxxx Xxxxxxxxx
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Title: President & CEO Title: President & CEO
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EXHIBIT A
Non-Disclosure Agreement
EXHIBIT B
Milestones and Specifications
To be determined by the mutual agreement of the parties no later than March 31,
2001.
