CONFIDENTIAL TREATMENT
Exhibit 10.2
Professional Services Agreement
SVI RETAIL, INC. CONFIDENTIAL TREATMENT
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (Agreement) is between SVI Retail, Inc.
("SVI Retail") located at 12707, Suite 000, Xxxx Xxxxx Xxxxx, Xxx Xxxxx, XX
00000, and TOYS "R" US, INC. ("Customer") located at 000 Xxxx Xxxx, Xxxxxxx, XX,
00000.
This Agreement sets forth the terms and conditions by which SVI Retail will
provide Professional Services to Customer. Any capitalized terms in this
Agreement shall have the same meaning as defined in Section 2 "Definitions" in
this agreement or the Schedules attached hereto.
SVI Retail will provide Customer with Professional Services for the SVI Retail
Software as defined in the Software License Agreement attached as Schedule 4,
Section 1.3 (the "Software") including services as defined in this agreement.
This Agreement consists of this document and the following schedules that are
incorporated by reference (the "Schedules").
Schedules
1A Short Term Resource Plan
1B Long Term Resource Plan (not currently included until final)
2 Professional Services Fee Rates
3 Professional Services Fee Schedule
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ACCEPTANCE
By signing below, Customer agrees to purchase the services of SVI Retail as
described in the Resource Plan, at the rates and times set forth in the
Schedules and SVI Retail agrees to provide such services to Customer, all
according to the terms of this Agreement. Once signed, any reproduction of this
Agreement, Agreement Modification, or Release Order made by reliable means (for
example, photocopy or facsimile) is considered an original and all Professional
Services SVI Retail provides under this Agreement are subject to this Agreement.
SVI RETAIL TOYS "R" US, INC.
By By
------------------------------- -----------------------------
Name Xxxxx X'Xxxxx Name
----------------------------- ---------------------------
Title Chief Financial Officer Title
----------------------------- ---------------------------
Date Date
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PLEASE RETURN TWO (2) ORIGINALS OF THIS AGREEMENT TO SVI RETAIL. UPON RECEIPT,
SVI RETAIL WILL SIGN AND RETURN ONE ORIGINAL TO CUSTOMER.
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CONFIDENTIAL TREATMENT
1. EFFECTIVE DATE AND TERM:
1.1. The effective date of this Agreement shall be the date this
document is executed by both SVI Retail and Customer.
1.2. This Agreement shall continue in force through [***] unless
otherwise terminated as provided herein.
2. DEFINITIONS:
2.1. "Professional Services." Shall be the types of services
offered by SVI Retail as described in Section 3 below.
2.2. "Short Term Resources." Shall be those resources as defined in
Schedule 1A and that are available on a guaranteed minimum
utilization basis of [***], unless otherwise noted in Schedule
1A, during the specific time periods as defined in Schedule
1A.
2.3. "Long Term Resources." Shall be those resources as defined in
Schedule 1B and that are available on a guaranteed minimum
utilization basis of [***], unless otherwise noted in Schedule
1B, during the specific time periods as defined in Schedule
1B.
2.4. "Software." The computer programs in object code formally
described in the Software License Agreement attached as
Schedule 4, including any extracts from such programs,
derivative works of such programs, or collective works
including such programs (such as subsequent Releases) to the
extent specifically provided to Customer under this Agreement
or the License Agreement.
3. PROFESSIONAL SERVICES:
SVI Retail will provide Customer with SVI Retail employees for the
purpose of performing services for Customer or its employees concerning
the use of the Software. The time will be tracked in quarter-hour
segments and billed as recorded. Professional Services includes (a)
services both on site and off site which is billed at the published Fee
Rates, as defined in Schedule 2, (b) time spent by SVI Retail personnel
to answer Customer's questions via teleconference and e-mail, and (c)
advance preparation by SVI Retail personnel as necessary in providing
services to Customer as well as follow-up materials to document the
results of visits, sessions or teleconferences.
4. BOOKING OF PROFESSIONAL SERVICES:
4.1. For Short Term and Long Term Resources, SVI Retail will ensure
that these resources will be available when Customer requests
them as defined in Schedule 1A and 1B, subject to their
health, vacation, and other such limitations. SVI Retail
agrees that the Customer will always have first priority
access to these resources regardless of other SVI Retail
customer requests. Customer acknowledges there might be times
when the SVI Retail employee Customer requests or those
qualified to provide the services Customer requires are not
immediately available when Customer requests them. In such a
case, SVI Retail will make every effort to accommodate
Customer's needs as well and as promptly as reasonably
possible.
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
4.2. Customer acknowledges it will be charged for Short Term
Resources and Long Term Resources during the periods such
resources are allocated to it on Schedule 1A and 1B at a
minimum utilization level of [***], unless otherwise noted,
even if actual utilization is less.
5. WORK AUTHORIZATION:
5.1. Requests for visits to Customer's location or requests for
services to be performed at an SVI Retail site must be made by
Customer in writing or by e-mail. Before an SVI Retail
representative travels or begins work on Customer's behalf,
SVI Retail will ask for written or e-mail confirmation of
Customer's request. Unless specifically indicated otherwise in
this Agreement, Customer will not be charged for fees and
expenses for services that Customer has not approved and SVI
Retail will not travel or perform any services until Customer
has given SVI Retail such approval.
5.2. Change orders or requests may be made by Customer in writing
or by e-mail. All such changes must detail the proposed
change, the reasons for the change and its perceived impact on
other services to be performed by SVI Retail. Within [***]
following receipt of any change pursuant to this Section, SVI
Retail shall notify Customer in writing or by e-mail of the
estimated effect such change will have on the cost and timing
of services to be provided hereunder.
6. TRAVEL TIME:
6.1. Travel time for services originating from the SVI Retail US
office(s) to destinations in the US, Mexico or Canada, or for
service originating from the SVI Retail UK office to
destinations in Europe will not normally be billed unless the
total billable hours for a single trip is less than [***]In
such case, the lesser of [***]hours or the actual travel hours
for the trip will be billed.
6.2. Travel time for services originating from the SVI Retail US
office(s) to destinations other than the United States, Mexico
or Canada, or for services originating from the UK office of
SVI Retail to destinations other than Europe will not normally
be billed unless the total billable hours for a single trip is
less than [***]In such case, the lesser of [***]hours or [***]
for the trip will be billed.
7. TRAVEL EXPENSES:
7.1. In scheduling a visit to Customer's location, SVI Retail
attempts to work with Customer so that the time SVI Retail
spends is used effectively. SVI Retail will assign its
personnel based upon the services to be performed, upon an
ongoing analysis of Customer's needs and upon Customer's
approval. There may be one of SVI Retail`s employees at
Customer's site on some occasions and more than one at other
times. For this reason, and because of the varying lengths of
stay, expenses will vary from visit to visit.
7.2. Expenses can include round trip airfare (regular unrestricted
coach for domestic flights and business class for
international flights), hotel accommodations (Hilton, Hyatt,
Marriott or equivalent in the US and Canada; Hilton, Marriott
or Holiday Inn or equivalent in the UK and Europe; Hilton,
Marriott, Prince or equivalent in Asia-Pacific), meals and
ground transportation (car rental, taxi, train, ferry,
parking, etc.). Any lost deposits or penalties that are
incurred as a result of Customer's canceling a visit after
having confirmed it will be billed to Customer.
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
7.3. Since SVI Retail's employees might visit more than one user
site during a trip, it is possible that Customer will be
billed for only a portion of the related expenses. The portion
paid by Customer in such a case will be calculated by dividing
the number of hours spent at Customer's site by the total
number of hours for all users visited during the trip, and
then applying this ratio to any common expenses incurred, such
as airfare.
7.4. The amount Customer will be charged for travel expenses will
be determined by the going rates for services in Customer's
area. SVI Retail employees will make their own arrangements
and submit expense claims to SVI Retail. Customer will be
billed for each visit. Copies of completed, approved by SVI
Retail management travel expense reports will accompany all
travel expense invoices. All invoices submitted to Customer
will conform to Customer's Travel Reimbursement Policy
requirements.
8. TIME AND COST:
8.1. SVI Retail will use its commercially reasonable best efforts
to ensure that its software products are installed, Customer's
staff is trained and any conversion or modifications requested
of it are delivered in the time agreed. SVI Retail provides
this assurance based upon the agreed scope of work known at
the time a completion or delivery date is agreed upon.
Customer's actual delivery time could vary based upon the
discovery of information or circumstances not previously known
or beyond SVI Retail's control.
8.2. SVI Retail service estimates are provided as a guideline based
upon our experience with similar requirements in similar
companies. Customer's actual cost could vary from that
estimated due to the discovery of information or circumstances
not then known or beyond SVI Retail's control. Customer's
costs could also vary based upon Customer's desire to use more
or less of SVI Retail's services than those normally used in
similar situations.
8.3. SVI Retail will not be responsible for any errors or omissions
in information, data or services provided by Customer or by
third parties hired by Customer to act on Customer's behalf.
9. PROJECT STAFF:
9.1. Each party to this Agreement shall appoint a project or
account manager who will be responsible for representing that
party in connection with the services under this Agreement.
SVI Retail's account manager shall have the authority and
responsibility for the planning, control and scheduling of all
effort and resources in connection with SVI Retail's work
under this Agreement. Customer's project manager will have
responsibility for all planning, control and scheduling of
effort and resources required to be provided or made available
by Customer under this Agreement.
9.2. Each party will endeavor to ensure continuity of its key staff
on the project but reserves the right to make changes if
necessary due to circumstances beyond its control. Should it
become necessary for either party to replace any key member of
its staff involved in the performance of work under this
Agreement, the affected party shall notify the other and will
provide a suitably qualified and experienced replacement
member of staff with as similar a level of skill and
experience to the replaced member of staff as is reasonably
possible.
9.3. SVI Retail warrants that any staff assigned to provide
services to Customer under this Agreement shall possess such
skill and experience as is necessary for the proper
performance of those services.
9.4. [***]
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
9.5. SVI Retail warrants that given adequate notice, it will use
its best efforts to make available the number of SVI Retail
employees Customer requests for the time period Customer
requests.
10. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY:
10.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SVI RETAIL
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SOFTWARE OR THE SERVICES TO BE RENDERED HEREUNDER, WHETHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10.2. In no event shall SVI Retail's cumulative liability for any
claim arising in connection with this Agreement exceed the
total fees and charges paid to SVI Retail by Customer within
the preceding 12 months. In no event shall SVI Retail be
liable for any indirect, consequential, special, exemplary, or
incidental damages of whatever kind, except for damages caused
by SVI Retail's negligence.
10.3. No action, whether based in contract, strict liability, or
tort, including any action based on negligence, arising out of
the performance of services under this Agreement, may be
brought by either party more than [***] year after such cause
of action accrued, except that an action for nonpayment may be
brought within [***] of the date of the last payment.
11. ASSIGNMENT:
Neither party shall assign any of its obligations under this Agreement
without the prior written consent of the other party, which shall not
be unreasonably withheld.
12. CONFIDENTIALITY:
12.1. It is anticipated that Customer and SVI Retail, in the course
of carrying out their respective responsibilities under this
Agreement, will consult with the other party's personnel
about, or receive certain of, the other party's confidential
business and technical information ("Confidential
Information"). Customer and SVI Retail agree to keep
confidential and, without the other party's prior written
consent, will not use and will not disclose to any person or
entity any Confidential Information except as expressly
permitted by this Agreement. Customer and SVI Retail will each
take reasonable precautions to ensure that the Confidential
Information of the other party is disclosed to or used by only
those persons who have a reasonable need to know.
12.2. The foregoing obligations of this Section 12 will not apply to
any information or data that (1) at the time of disclosure or
use by the recipient is known or available to the general
public by publication or otherwise (other than as a result of
a breach of this Section 12; (2) is known by the recipient at
the time of receiving such information; (3) is made public by
the disclosing party; (4) is developed independently by the
recipient prior to the date of disclosure by the disclosing
party; or (5) is acquired by the recipient from a third party
who independently and rightfully developed or acquired the
information or data and was under no duty to refrain from its
disclosure.
12.3. Customer shall not, and shall not allow any other party to,
reverse assemble or reverse compile the Software, for any
purpose.
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
12.4. Either Customer or SVI Retail may specifically enforce any
agreement contained in this Section 12 through an injunction
or otherwise, in the event of breach or threatened breach by
the other. Such remedies will be in addition to all others
that may be available.
12.5. The Confidentiality provisions of this Section 12 shall
survive termination of this Agreement.
13. NON-SOLICITATION OF STAFF:
13.1. For the duration of this Agreement and for a period of [***]
thereafter neither party shall employ nor make any offers of
employment to any employee of the other engaged in the
performance of this Agreement unless agreed in writing by the
other party. "Employ" means the engagement of such person as
an employee, director, sub-contractor or independent
contractor.
13.2. Each party's estimate of the damage that a breach of the above
paragraph would have upon its business is herein quantified as
liquidated damages in the amount [***] for the individual in
question. Each party accepts that these are reasonable
estimates of loss and agrees to pay the same upon demand in
the event of its breach of this clause.
14. NO WAIVER:
Neither party shall by mere lapse of time, without giving notice or
taking other action hereunder, be deemed to have waived any breach by
the other party of any of the provisions of this Agreement. Further,
the waiver by either party of a particular breach of this Agreement by
the other shall not be construed or constitute a continuing waiver of
such breach or of other breaches of the same or other provisions of
this Agreement.
15. PAYMENT:
15.1. SVI Retail shall invoice Customer for services and related
expenses provided under this Agreement on a single invoice on
a monthly basis for all fees and charges accrued, and all
reimbursable expenses incurred, during the previous month.
Customer shall pay the invoiced amount promptly upon receipt
of such invoice. Any amount not paid within [***] days after
the invoice date shall bear interest at the lesser of [***]
percent per month or the highest rate allowed by applicable
law.
15.2. Customer shall be responsible for procuring, installing, and
maintaining all equipment, telephone lines, communications
interfaces, and other hardware (other than the hardware
constituting the program control center maintained at SVI
Retail's facilities) necessary to operate the Software and to
obtain from SVI Retail the services called for by this
Agreement.
15.3. Customer shall pay SVI Retail in advance for the Short and
Long Staff Resources as defined in Schedule 3 attached to this
Agreement. These advance payments shall be credited to the
Customer's account during the term of the Agreement as defined
in Schedule 3.
16. INDEMNITY:
Each party agrees to indemnify and hold the other harmless from any
third party loss, claim, liability or damage to person or property
arising out of this Agreement and services provided which is caused by
the negligence or intentional misconduct of the party causing such
loss, claim, liability or damage. This indemnity will survive the
termination of this Agreement.
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
17. TERMINATION:
Customer may not terminate this Agreement at any time for any reason,
unless for reason of default by SVI Retail which has not been cured
within [***] following delivery to SVI Retail of written notice of the
specific conditions constituting such default. SVI Retail may terminate
this Agreement if Customer fails to pay, within 60 days of receiving an
invoice, for any services, which have been requested by Customer and
have been duly performed by SVI Retail, SVI Retail may suspend its
performance of services under the terms of this Agreement pending
receipt of such payment, require prepayment for any subsequent services
to be rendered, or any combination of the foregoing
18. LEGAL AUTHORITY:
SVI Retail and Customer are independent entities and shall not have
authority to act for or bind the other in any way or to represent that
either of them is in any way responsible for acts of the other. All
persons employed by SVI Retail in connection with performing the
services described herein shall, for all purposes, be employees or
agents of SVI Retail and under no circumstances shall SVI Retail or any
of its employees be deemed employees or agents of Customer. SVI Retail
and Customer each represent and warrant to the other (i) it is aware of
no obligation, legal or otherwise, which is inconsistent with its
obligations under this Agreement and (ii) performance of its
obligations under this Agreement will not violate any law, rule,
regulation, or any proprietary right of a third party.
19. LAW:
All questions concerning the validity, operation, interpretation and
construction of this Agreement shall be governed by and determined in
accordance with the internal laws of the State of California
(irrespective of its choice of law principles).
20. ARBITRATION:
20.1. Except as specifically modified by this paragraph, and
excepting matters involving provisional remedies as set forth
below, any controversy or claim arising out of or relating to
this Agreement, or any breach thereof, including without
limitation, any claim that this Agreement, or any part
thereof, is invalid, illegal or otherwise voidable or void,
shall be submitted to arbitration to be held before a single
arbitrator in San Diego, California before and in accordance
with the commercial arbitration rules of the American
Arbitration Association. If the claims at issue exceed
$500,000.00, exclusive of interest and attorneys fees, such
commercial arbitration rules shall include the supplementary
procedures for large, complex cases and the number of
arbitrators shall be three. In all cases, the arbitrators
shall be members of the State Bar of California, actively
engaged in the practice of law for at least 10 years, or a
retired member of the state or federal judiciary.
20.2. The provisions of this paragraph shall be construed as
independent of any other covenant or provision of this
Agreement; provided that if a court of competent jurisdiction
determines that any such provisions are unlawful in any way,
such court shall modify or interpret such provisions to the
minimum extent necessary to have them comply with the law.
20.3. Judgment upon an arbitration award may be entered in any court
having competent jurisdiction and shall be binding, final and
non-appealable.
20.4. This arbitration provision shall be deemed to be
self-executing and shall remain in full force and effect after
expiration or termination of this Agreement. In the event
either party fails to appear at any properly noticed
arbitration proceeding, an award may be entered against such
party by default or otherwise notwithstanding said failure to
appear.
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
21. PRESS RELEASES:
SVI Retail may issue press releases that provide information regarding
the contents of this Agreement. SVI Retail will receive Customer's
approval before releasing any press release that provides any
information regarding Customer, however, SVI Retail may be obligated
under Securities and Exchange Commission public disclosure rules to
release information regarding Customer or this Agreement without prior
approval. SVI Retail may also include Customer's name on its list of
customers.
22. SCOPE OF AGREEMENT; AMENDMENT:
The parties hereto acknowledge that each has read this Agreement,
understands it, and agrees to be bound by its terms. The parties
further agree that this Agreement is the complete and exclusive
statement of agreement and supersedes all proposals (oral or written),
understandings, representations, conditions, warranties, covenants, and
other communications between the parties relating hereto. This
Agreement may be amended only by a subsequent writing that specifically
refers to this Agreement and is signed by both parties, and no other
act, document, usage, or custom shall be deemed to amend this
Agreement.
23. VENUE AND JURISDICTION:
For purposes of venue and jurisdiction, this Agreement shall be deemed
made and to be performed in the City of San Diego, California.
24. COUNTERPARTS:
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one
document.
25. TIME OF ESSENCE:
Time and strict and punctual performance are of the essence with
respect to each provision of this Agreement.
26. ATTORNEY'S FEES:
In the event any litigation, arbitration, mediation, or other
proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the
unsuccessful party(ies) all costs, expenses, and actual attorney's fees
relating to or arising out of (a) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (b) any post-judgment or
post-award proceeding including without limitation one to enforce any
judgment or award resulting from any such Proceeding. Any such judgment
or award shall contain a specific provision for the recovery of all
such subsequently incurred costs, expenses, and actual attorney's fees.
27. HEADINGS:
The headings of the Paragraphs of this Agreement have been included
only for convenience, and shall not be deemed in any manner to modify
or limit any of the provisions of this Agreement, or be used in any
manner in the interpretation of this Agreement.
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CONFIDENTIAL TREATMENT
28. PARTIAL INVALIDITY:
Each provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. If any provision of this Agreement or
the application of such provision to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected by such invalidity or
unenforceability, unless such provision or such application of such
provision is essential to this Agreement.
29. DRAFTING AMBIGUITIES:
Each party to this Agreement and its legal counsel have reviewed and
revised this Agreement. The rule of construction that any ambiguities
are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or of any amendments or exhibits
to this Agreement.
30. NOTICES:
Any notice, consent, authorization or other communication to be given
hereunder shall be in writing and shall be deemed duly given and
received when delivered personally or transmitted by facsimile
transmission with receipt acknowledged by the addressee or three days
after being mailed by first class mail, or the next business day after
being deposited for next-day delivery with a nationally recognized
overnight delivery service, charges and postage prepaid, properly
addressed to the party to receive such notice at the address(es)
specified below, or at such other address as shall be specified by like
notice:
SVI Retail, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X'Xxxxx, Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Toys "R" Xx
000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
-- END --
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SCHEDULE 3
CONFIDENTIAL TREATMENT
FEE SCHEDULE
Customer will pay SVI Retail for the services provided pursuant to Schedule 1A
resources included in this agreement using the following method:
1. Initial payment of [***] as of [***] for services to be provided
beginning [***] Subsequent monthly payments of [***] from [***] through
[***] Monthly payments of [***] beginning [***] through [***] then
monthly payments of [***] beginning [***] through [***] followed by
monthly payments of [***] beginning [***] through [***] SVI Retail will
submit monthly Professional Services "billing detail" to Customer
providing detail records of actual services performed and charges
accrued.
2. At the end of each three (3) month period, SVI Retail will provide
Customer with a reconciliation of the total charges for Professional
Services provided to Customer during that respective period including
application of the monthly payment credits. If the actual charges
exceed the total of the monthly payments for the subject 3 month
period, then SVI Retail will invoice Customer for the amount in excess
of the total payments made in that period. If the actual charges are
less than the total of the monthly payments for the subject 3 month
period, then SVI Retail will issue credits to Customer for the amount
overpaid by Customer and will apply these credits towards future
monthly payments. At the end of the [***] period, SVI Retail will issue
either a final invoice or credit to Customer based upon a final
reconciliation of this period. [***] SVI Retail will invoice Customer
separately on a monthly basis for all travel expenses authorized by
Customer for SVI Retail's Professional Services resources related
travel during that month.
These payments are further detailed in the table below:
[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***]
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[***] = Confidential Treatment Requested
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