EXHIBIT 10.19
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT (the "Agreement"), is made as of June 3, 1999, (the "Effective
Date") by and between JDA SOFTWARE, INC., an Arizona corporation ("JDA") and
XXXXX & XXXXXX, a Missouri corporation ("Licensee").
RECITALS
1. JDA has either (i) developed and owns certain computer software and
related documentation, or (ii) has been granted the right by a third
party ("Third Party") to distribute certain computer software and
related documentation; and
2. Licensee desires a license from JDA to use such software and
documentation and JDA is willing to grant such license upon and subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the conditions and mutual
covenants contained herein, the parties agree:
I. DEFINITIONS
The term:
1.1 "Documentation" means JDA's user instructions and functional
specifications described in Exhibit A, any additions and updates
thereto, and any portion of any of the foregoing.
1.2 "Standard Specifications" means the functional specifications described
in the Documentation.
1.3 "Standard Software" means the computer software described in Exhibit A
whether in source code, object code, or any other form, and any portion
of the foregoing.
1.4 "Module" means each portion of the Standard Software; "Server" means a
single central processing unit ("CPU") that enables other CPUs
electronically-linked to the Server to access the Software; "Site"
means a specific, physical location of Licensee's Server as set forth
on Exhibit B; "Authorized User" means any individual having electronic
access to the Server.
1.5 "Modifications" means additions to the Standard Software which (i)
change its utility, efficiency, functional capability, or application
but which do not alter its basic features and functionality, and (ii)
are developed by JDA and/or with JDA's assistance pursuant to a
separate, written Consulting Services Agreement.
1.6 "Licensee Modifications" means additions to the Standard Software which
change its utility, efficiency, functional capability, or application
but which do not alter its basic features and functionality which are
(i) developed by or for Licensee without JDA's assistance (provided
Licensee is granted the right to use the source code), (ii) are not
developed by JDA, and (iii) either operate as a free standing module or
set of instructions, or add a new function to the Standard Software.
1.7 "Updates" means all new releases, program temporary fixes, or patches,
if any, to the Standard Software provided by JDA, when and if
available, to its customers.
1.8 "Software" means the Standard Software, Modifications, Updates,
Documentation and any portion of the foregoing.
1.9 "Supported Software" means each portion of the Software for which
Licensee receives, and JDA provides support services pursuant to a
separate, written Software Support Agreement.
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1.10 "Exhibit" means an exhibit attached hereto and incorporated herein by
said reference.
1.11 "Territory" means United States.
1.12 "License Term" means in perpetuity.
II. LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions herein, JDA
hereby grants Licensee a nonexclusive, nontransferable license to use
the Software in the Territory, solely for Licensee's internal data
processing operations.
2.2 Licensee may:
(a) after written notice to JDA, use the Software temporarily (not
longer than forty-five (45) days) on a back-up machine in the
event that the Server is inoperable;
(b) make a single copy of the Software (exclusive of
Documentation) for each of the following purposes; (i)
archival, (ii) disaster recovery, (iii) testing, and (iv)
production;
(c) modify or merge the Software with other software, with the
understanding that any modifications, however extensive, will
not diminish JDA's (or Third Party's) title or interest in the
Software, so long as Licensee has been granted the right to
use the source code and, where required, acquired an
additional license from Third Party; and
(d) make a reasonable number of copies of the Documentation as is
necessary to use the Software as contemplated and limited
hereunder.
2.3 LICENSE EXCLUSIONS. Except (i) as expressly authorized herein, and (ii)
as and to the extent specifically authorized under applicable law,
Licensee will not:
(a) copy, translate, rent, lease, sublicense or otherwise transfer
the Software;
(b) cause or permit reverse compilation or reverse assembly of all
or any portion of the Software, provided that upon Licensee's
written request, JDA will provide necessary interface
information to achieve interoperability of the Software with
independently created computer programs to Licensee on payment
of JDA's reasonable fee;
(c) relocate the Software from the Site without providing prior
written notice to JDA;
(d) provide information processing, computer service bureau,
computer time sharing (or similar services) to any other
party, or pirate the Software with a third-party's data.
2.4 No license, right or interest in any JDA (or Third Party) trademark,
trade name, or service xxxx is granted hereunder. Any rights not
explicitly granted herein are expressly reserved by and to JDA.
2.5 Licensee acknowledges that the Software and all related technical
information, documents and materials are subject to export controls
under the U.S. Export Administration Regulations and the applicable
export controls of the Territory. Licensee will (i) comply strictly
with all legal requirements established under these controls, (ii)
cooperate fully with JDA in any official or unofficial audit or
inspection that relates to these controls and (iii) not export,
re-export, divert or transfer, directly or indirectly, any such item or
direct products thereof to Cuba, Iran, Iraq, Libya, North Korea or any
country that is embargoed by Executive order, unless Licensee has
obtained the prior written authorization of JDA and the U.S. Commerce
Department and the applicable regulatory body in the Territory. Upon
notice to Licensee, JDA may modify
this list to conform to changes in the U.S. Export Administration Regulations
and the applicable regulations of the Territory.
2.6 TITLE AND PROTECTION.
(a) Licensee acknowledges that JDA or Third Party will own all rights in
any copy, translation, modification, adaptation or derivation of the
Software that Licensee may create, including any improvement or
development thereof. If, by operation of law, any person is deemed to
possess any rights in such items ("Author"), Licensee will cause the
Author to assign such rights to JDA and Third Party. To the extent
that such rights are inalienable under applicable law, Licensee will
cause the Author to waive and agree not to exercise such rights and,
if such waiver and agreement are deemed invalid, to grant JDA, Third
Party and their designees the exclusive, perpetual, irrevocable,
worldwide and royalty-free right to use, market and modify such items
without identifying the Author or seeking the Author's prior consent.
Upon JDA's request, Licensee will use its best effort to cause the
Author to execute any instrument that is appropriate to give full
legal effect to the provisions of this Section.
(b) Licensee will affix, to each full or partial copy of the Software
made by Licensee including, without limitation, Licensee
Modifications, all copyright and proprietary information notices as
affixed to the original.
(c) Licensee agrees that Third Party will have the right, as an intended
third party beneficiary of this Agreement, to rely upon and directly
enforce the terms set forth in this Agreement. Solely to accept the
Third Party's rights under this Agreement, JDA accepts the third
party beneficiary rights as agent on behalf of Third Party. Licensee
acknowledges that Third Party accepts its third party beneficiary
rights hereunder.
III. DELIVERY AND ACCEPTANCE
3.1 DELIVERY. JDA will ship the Standard Software and Documentation to
Licensee within a reasonable time after the Effective Date. Delivery of
the Standard Software and Documentation will be complete upon JDA's
shipment of the same, hereafter the "Delivery Date". Where applicable,
Licensee will (i) obtain all licenses required to import the Software into
the Territory, (ii) clear the Software through local customs promptly upon
their arrival at the Territory and (iii) pay all customs duties and other
charges assessed on such importations in the Territory.
3.2 ACCEPTANCE. Licensee will be deemed to have received and accepted the
Standard Software that has been delivered to Licensee or to which any
correction Notice (defined below) has been provided to Licensee by JDA,
and the related Documentation, unless (a) with respect to such Standard
Software, it materially fails to conform to the applicable Standard
Specifications, and with respect to such Documentation, it fails to
conform to the description in Exhibit A; (b) Licensee gives written notice
of nonacceptance of such Standard Software and/or Documentation to JDA
within 15 business days after the Delivery Date or delivery of a
Correction Notice; and (c) Licensee's notice of nonacceptance states
specifically (i) with respect to such Standard Software the Standard
Specifications to which it fails to conform and the manner in which it
fails to conform to such Standard Specifications with sufficient
specificity to permit JDA to identify the nonconformity, and (ii) with
respect to such documentation, the manner in which it fails to conform to
the description in Exhibit A. If a Module of Standard Software or the
related Documentation has been rejected pursuant to the first sentence of
this Section 3.2 then JDA will, promptly after receipt of Licensee's
rejection notice, use reasonable efforts to promptly correct or replace
the existing, identified nonconformity and will notify Licensee of the
completion of such correction or replacement (such notification, a
"Correction Notice"). Licensee will cooperate with JDA in its efforts to
correct or replace the nonconformity. The correction or replacement of any
portion of a Module of Standard Software that fails to conform to the
Standard Specifications, or any Documentation that fails to conform to
Exhibit A, will be Licensee's exclusive remedy for any such failure.
IV. WARRANTY, INDEMNIFICATION, DISCLAIMERS, LIMITATIONS
4.1 SOFTWARE WARRANTY.
(a) JDA warrants that the Standard Software will perform substantially in
accordance with the Documentation for a period of six (6) months from
the Deliver Date (the "Warranty Period"). JDA further warrants that it
has not and will not intentionally insert into the Standard Software
any virus, worm, trojan horse, or other disabling code. JDA's sole
obligation for breach of this warranty is to repair or replace the
defective Standard Software with one (1) copy of conforming Software
in a timely manner, provided Licensee (i) notifies JDA of the
deficiency within the Warranty Period, and (ii) has installed all
Updates provided by JDA to Licensee.
(b) The warranty set forth in Section 4.1(a) will be null and void upon
modification of the Standard Software by any party other than JDA and
not approved in writing by JDA, or Licensee's material breach of this
Agreement.
4.2 YEAR 2000 WARRANTY.
(a) LIMITED WARRANTY. JDA warrants that the Supported Software delivered
under this Agreement will record, store, process and present calendar
dates falling on or after January 1, 2000 in the same manner and with
substantially the same functionality as such Supported Software
records, stores, processes and presents calendar dates falling on or
before December 31, 1999.
(b) REMEDY. In the event that any Supported Software fails to operate as
described in Section 4.2(a) ("Non-Compliance"), Licensee's exclusive
remedy, and JDA's exclusive liability, will be to repair the
Non-Compliant Supported Software or replace it with one copy of
Supported Software substantially conforming to the warranty set forth
in Section 4.2(a).
(c) LIMITATIONS. The warranty provided in Section 4.2(a) will not apply
to the extent that the Non-Compliance arises as a result of (i)
modification of the Supported Software other than by JDA, (ii) failure
to promptly install an Update that would have eliminated the
Non-Compliance, (iii) use of the Supported Software with data that is
Non-Compliant, and (iv) the combination of the Supported Software with
other items not provided by JDA, but only if the Non-Compliance would
not have arisen from use of the Supported Software alone.
4.3 INDEMNIFICATION
(a) JDA will defend and indemnify Licensee against, and hold Licensee
harmless from, any and all liability and expenses resulting from any
action brought against Licensee to the extent that it is based on a
claim that the Software infringes a valid copyright in the Territory,
provided that JDA is given prompt notice, information, reasonable
assistance, and sole authority to defend or settle the claim. In the
defense or settlement of the claim, JDA may in its reasonable judgment
and at its option and expense (i) obtain for Licensee the right to
continue using the Software, (ii) replace or modify the Software so
that it becomes noninfringing while giving equivalent performance, or
(iii) if the remedies in (i) or (ii) are not commercially feasible,
JDA may, as its sole obligation, terminate the license for the
infringing Software and upon receipt of the infringing Software,
return only the license fees paid by Licensee for such Software,
depreciated over a five (5) year straight line depreciation schedule
from the Effective Date. Licensee's failure to provide prompt notice,
information and assistance will release JDA from its obligations
hereunder to the extent JDA is prejudiced thereby.
(b) JDA will have no liability to indemnify, defend or hold harmless
Licensee as set forth in Section 4.3(a) to the extent the alleged
infringement is caused by (i) a modification of the Software by anyone
other than JDA, (ii) use of the Software other than in accordance with
the Documentation
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or the terms of this Agreement, (iii) screen formats, report
formats, logic, code or other information or data provided by
Licensee, (iv) the failure of Licensee to use Updates supplied
at no cost by JDA, or (v) the combination of Software with
other items not developed by JDA, but only if the infringement
claim would not have arisen from use of the Software alone.
(c) THE FOREGOING PROVISIONS OF THIS SECTION 4.3 CONSTITUTE THE
ENTIRE LIABILITY OF JDA AND THE EXCLUSIVE REMEDY OF LICENSEE
WITH RESPECT TO ANY CLAIM THAT JDA HAS BREACHED THE WARRANTY
MADE IN SECTION 4.3(a) OR THAT THE SOFTWARE INFRINGES UPON A
THIRD PARTY'S VALID COPYRIGHT IN THE TERRITORY. LICENSEE
FURTHER ACKNOWLEDGES THAT (i) THE PRICES AND OTHER CHARGES
CONTEMPLATED UNDER THIS AGREEMENT ARE BASED ON THE LIMITED
WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY SPECIFIED IN
SECTIONS 4.1, 4.2 AND 4.3 AND (ii) SUCH CHARGES WOULD BE
SUBSTANTIALLY HIGHER IF ANY OF THESE PROVISIONS WERE
UNENFORCEABLE.
(d) Except as provided in Section 4.3(a), Licensee will defend and
indemnify JDA against and hold JDA harmless from, any and all
liability and expenses resulting from any action brought
against JDA to the extent that it is based on a claim asserted
by a third party relating to or arising out of Licensee's use
or misuse of the Software or any item provided by Licensee as
contemplated in Section 4.3(b).
4.4 DISCLAIMERS, LIMITATIONS.
(a) JDA DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL,
WARRANTIES, CONDITIONS AND REPRESENTATIONS OTHER THAN THE
WARRANTIES, CONDITIONS AND REPRESENTATIONS EXPRESSLY MADE IN
THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED,
OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND
NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT USE OF THE
SOFTWARE MAY NOT BE UNINTERRUPTED OR ERROR FREE. THE REMEDIES
SET FORTH HEREIN WILL BE THE SOLE AND EXCLUSIVE REMEDIES OF
LICENSEE.
(b) The Parties understand that Licensee may use certain third
party software or equipment in conjunction with the Software.
JDA MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS,
PERFORMANCE OR SUITABILITY OF THE THIRD PARTY SOFTWARE OR
EQUIPMENT, INCLUDING THE ABILITY TO INTEGRATE SAME WITH THE
SOFTWARE. THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE
AND SUITABILITY OF THE THIRD PARTY SOFTWARE OR EQUIPMENT LIE
SOLELY WITH LICENSEE AND THE VENDOR OR SUPPLIER OF SUCH THIRD
PARTY SOFTWARE OR EQUIPMENT, AS THE CASE MAY BE.
(c) THE AMOUNTS TO BE PAID TO JDA UNDER THIS AGREEMENT DO NOT
INCLUDE ANY ASSUMPTION OF RISK AND JDA WILL NOT, UNDER ANY
CIRCUMSTANCES, BE LIABLE FOR (i) ECONOMIC, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE,
WHETHER CLAIMED UNDER CONTRACT, TORT, BREACH, FAILURE OF
WARRANTY OR ANY OTHER LEGAL THEORY OR (ii) LOSS OF OR DAMAGE
TO LICENSEE DATA OR PROGRAMMING.
(d) THE MAXIMUM AGGREGATE LIABILITY OF JDA FOR ALL CLAIMS UNDER
THIS AGREEMENT WILL BE ONE HUNDRED PERCENT (100%) OF THE FEE
RECEIVED BY
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JDA FROM LICENSEE FOR THE LICENSE OF THE SOFTWARE WHICH IS THE
SUBJECT OF SUCH LIABILITY.
(e) THE WARRANTIES MADE IN SECTIONS 4.1(a), 4.2(a) AND 4.3(a)
EXTEND ONLY TO LICENSEE AND ITS PERMITTED ASSIGNS.
(f) ANY ACTION AGAINST JDA PERMITTED UNDER THIS AGREEMENT AND NOT
BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION
ACCRUES WILL BE DEEMED BARRED.
(g) ANY PRODUCTS (INCLUDING SOFTWARE) PROVIDED BY JDA TO LICENSEE,
IN ADDITION TO THE PRODUCTS WHICH JDA HAS SPECIFICALLY AGREED
TO PROVIDE IN THIS AGREEMENT, WILL BE PROVIDED SUBJECT TO THE
PROVISIONS OF THIS SECTION 4.4, UNLESS OTHERWISE EXPRESSLY
AGREED IN WRITING. NOTWITHSTANDING THE FOREGOING, ANY
SHELFWARE (DESIGNATED AS SUCH IN WRITING) PROVIDED TO LICENSEE
BY JDA, WILL BE PROVIDED AS IS AND WITHOUT ANY WARRANTIES
WHATSOEVER INCLUDING, BUT NOT LIMITED TO, THE WARRANTY SET
FORTH IN SECTION 4.2; ALL IMPLIED WARRANTIES, CONDITIONS AND
REPRESENTATIONS ARE HEREBY AND FOREVER DISCLAIMED FOR SUCH
SHELFWARE. FOR PURPOSES OF THIS SECTION 4.4(g), "SHELFWARE" IS
DEFINED AS SOFTWARE MODIFICATIONS CREATED BY JDA FOR CUSTOMERS
WHICH MAY BE HELPFUL TO OTHER CUSTOMERS DESIRING SIMILAR
MODIFICATIONS AND WHICH IS NOT SUBJECT TO RESTRICTIONS ON ITS
USE BY JDA.
V. BREACH, TERMINATION, SURVIVAL
5.1 BREACH. Upon any failure by either party to perform or comply with any
of its obligations under this Agreement, which breach is not cured
within thirty (30) days of receipt of written notice, the non-breaching
party will have the right, without waiving any right or remedy
otherwise available, to cease performance until such failure is
remedied.
5.2 TERMINATION.
(a) Upon the termination of this Agreement, JDA will have the
right to take immediate possession of the Software to the
extent permitted by applicable law and Licensee will (i)
discontinue exercising any rights granted hereunder, (ii)
deliver to JDA all Software then in its possession or control,
including, without limitation, all copies and duplicates in
whatever form, and (iii) certify in writing that all materials
required to be delivered to JDA have been delivered to JDA.
(b) Termination of this Agreement will be without prejudice to any
rights of either party against the other and such termination
will not relieve either party of any of its obligations to
the other existing at the time of termination. Furthermore,
nothing in this Section V will be deemed to permit Licensee to
terminate any other agreement (including, but not limited to,
a Software Support Agreement or Help Desk Agreement) prior to
termination of the initial term contained therein, or in any
manner contrary to the terms specified therein unless
termination of this Agreement is for JDA's material breach.
(c) Licensee will have a one time right to terminate this
Agreement if, and only if, it is unable to consummate the
purchase of Bakers Shoes from Edison Brothers. At such time as
the Agreement to Purchase Bakers Shoes is concluded, Licensee
will give JDA written notice of such consummation. In the
event that Licensee's purchase of Bakers Shoes is not
consummated, the Licensee will give JDA written notice and
comply with all of the conditions set forth in Section 5.1(a)
and pay to JDA any and all consulting fees and expenses
incurred by Licensee to
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and through the date that it provides JDA with such written
notice. Furthermore, JDA will refund to Licensee any and all
license fees which have been paid and this Agreement will be
deemed terminated without any penalties accruing to either
party.
5.3 SURVIVAL. Provisions concerning the parties' rights and obligations
which by the content of the provision operate after termination or
which are necessary to enforce any right will survive termination of
this Agreement. Without limiting the foregoing, all obligations of
confidentiality and limitations on liability will survive termination
of this Agreement for the duration of JDA's copyright in the Software.
VI. PAYMENT AND CHARGES
6.1 FEE. Licensee will pay to JDA a fee (the "Fee") set forth on Exhibit
C. The Fee will be in consideration of the agreement of JDA to license
the Standard Software and Documentation to Licensee and is payable by
Licensee in accordance with Exhibit C regardless of whether Licensee
refuses full performance by JDA.
6.2 ADDITIONAL SERVICES. If Licensee requests and JDA agrees to provide
consulting services including, without limitation, loading or
installing the Standard Software, a Business Application Analysis,
programming services, training services, and data conversion services,
the provisions to said services will be governed by a separate, written
Consulting Services Agreement. JDA may subcontract any such services to
another, related corporation, where appropriate under the business
circumstances and approved by Licensee. For example, a sister
corporation of JDA may provide services where its installers or repair
and maintenance personnel and their supervisors have specialized
knowledge which is essential to JDA's warranty or obligations pursuant
to a Consulting Services Agreement.
6.3 ADDITIONAL SOFTWARE. If, at any time after the Effective Date, JDA
grants Licensee the right to use additional software, or delivers to
Licensee additional software (including but not limited to
Modifications or Updates), such software and any related documentation
will automatically be incorporated herein and form part of the
Software. This provision will operate unless otherwise expressly agreed
in writing by JDA and Licensee at the time such additional rights are
granted.
6.4 INVOICING AND PAYMENT. All invoices are due and payable in full as set
forth on Exhibit C. Any payments due JDA hereunder which are not paid
when due will bear interest at the lesser of eighteen percent (18%) per
year or the highest rate permitted in the Territory, calculated daily
from the invoice date to the date of payment. JDA reserves the right to
terminate this Agreement if any payment due hereunder is not received
within ninety (90) days of the invoice date.
6.5 TAXES. Licensee will pay all sales and use tax due under this
Agreement directly to JDA along with Licensee's first payment of the
Fee. JDA will pay amounts collected for sales and use tax to the
government on behalf of Licensee. Notwithstanding the foregoing, if
either party ("Payor") is required to pay penalties, interest, costs or
expenses as a result of the other's ("Delinquent Party") late payments
of sales and use tax due, then the Delinquent Party will, upon the
request of the Payor (accompanied by reasonable documentation),
reimburse Payor in an amount equal to the amount so paid by it and any
penalties, interest, costs and expenses paid or incurred by Payor.
6.6 GROSS-UP. If, under the laws of the Territory, Licensee is required to
withhold any tax on such payments, then the amount of the payment will
be automatically increased to totally offset such tax, so that the
amount actually remitted to JDA, net of all taxes, equals the amount
invoiced or otherwise due. Licensee will promptly furnish JDA with the
official receipt of payment of these taxes to the appropriate taxing
authority.
VII. MISCELLANEOUS
7.1 GOVERNING LAW, ETC. This Agreement will be governed by the internal
laws of the State of Arizona, without reference to its choice of law
rules, and may be executed in counterpart copies. The parties hereby
exclude application of the United Nations Convention on Contracts for
the International Sale of Goods
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from this Agreement and any transaction between them related thereto. All
terms and conditions of this Agreement will be deemed enforceable to the
fullest extent permissible under applicable law. If a provision of this
Agreement is held invalid under any applicable law, such invalidity will
not affect any other provision of this Agreement and such invalid
provision will be deemed modified to the extent necessary to make it valid
and enforceable or, if such provision cannot be so modified, it will be
deemed deleted from this Agreement.
7.2 ARBITRATION. Except, at the option of JDA, with respect to a claim by JDA
against Licensee for the nonpayment by Licensee of amounts owing to JDA
hereunder or, at the option of either party with respect to the right to
apply to a court of competent jurisdiction for equitable relief, any
controversy or claim arising out of or related to this Agreement or in
connection with a breach of this Agreement ("Claim") will be settled by
arbitration in Phoenix, Arizona U.S.A. under the rules of the American
Arbitration Association in effect at the time such Claim is submitted to
arbitration. The arbitrator(s) selected to arbitrate such Claim will be
selected from a panel of persons having experience with and knowledge of
the computer software business. Such arbitrator(s) will not, in any event,
have any authority to make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement. The arbitral award
will be final and binding on all parties and may be entered as a judgment
and enforceable by any court of competent jurisdiction.
7.3 ATTORNEYS' FEES AND COSTS. The prevailing party in any arbitration or
litigation regarding a Claim or a claim for equitable relief, will be
entitled as a matter of right and not within the discretion of the
arbitrator or judicial officer, to recover its costs and expenses
including, without limitation, attorneys' and witness' fees.
7.4 NONWAIVER. The failure of either party to enforce the other party's
strict performance of any provision of this Agreement will not constitute
a waiver of its right to subsequently enforce such provision or any other
provision of this Agreement.
7.5 FORCE MAJEURE. If the performance of either party is delayed or prevented
at any time due to circumstances beyond its control, including, without
limitation, those resulting from labor disputes, fire, floods, riots,
civil disturbances, weather conditions, control exercised by a
governmental entity, unavoidable casualties or acts of God or a public
enemy, performance will be excused until such condition no longer exists.
7.6 NOTICES. All notices will be in writing and, if originating in the United
States, sent by certified mail, overnight mail, responsible courier, or
transmitted by facsimile (if confirmed by mail), or, if originating
outside the United States, sent by responsible international courier or
transmitted by facsimile (if confirmed by mail) to the address below or
such other address as either party may indicate by at least ten (10) days
prior written notice to the other party.
If to JDA: JDA Software, Inc.
00000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Co-Chief Executive Officer
Xxxxxxxxx X. Xxxxx, Co-Chief Executive Officer
Telephone: 602/000-0000
Facsimile: 602/404-5545
With a copy to: JDA Software, Inc.
General Counsel
00000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 602/000-0000
Facsimile: 602/485-3158
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If to LICENSEE: Xxxxx & Xxxxxx
0000 Xxxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Xx.
Vice President - Finance
Xxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.7 INTEGRATION, PURCHASE ORDER. This Agreement and the Exhibits constitute
the true will of the parties and the entire agreement between them with
respect to the Software, the license to use the Software, and the
rights and obligations of the parties with respect to the Software and
supersede all previous proposals (both oral and written), negotiations,
representations, commitments, writing, agreements, and all other
communications between the parties. This Agreement may only be altered
or modified by written instrument duly executed by both parties. In the
event of any conflict between the terms and conditions of this
Agreement and the terms and conditions of any purchase order, the terms
and conditions of this Agreement will control. The parties specifically
agree that, to the extent any terms in Exhibit D conflict with any
terms contained in this Agreement, the terms contained in Exhibit D
will control.
7.8 COOPERATION. Both parties will reasonably cooperate with the other in
connection with each other's performance. Both parties acknowledge that
such performance depends in part on such cooperation and that the
failure to cooperate may hinder or impede the other's performance
hereunder.
7.9 ASSIGNMENT. Licensee will not assign or sublicense, in whole or in
part, any of its rights or obligations under this Agreement without the
prior written consent of JDA, and any prohibited assignment or
sublicense will be null and void.
7.10 NONDISCLOSURE OBLIGATION.
(a) The terms and conditions (including pricing) of this
Agreement, along with any other information clearly marked
"confidential" provided under this Agreement are confidential
and will not be disclosed, orally or in writing by Licensee to
any third party without JDA's prior written consent. JDA
represents that the Software contains valuable proprietary
information, is confidential, and Licensee will protect the
Software with at least the same degree of care and
confidentiality, but not less than a reasonable standard of
care, which Licensee uses for Licensee information that it
does not wish disclosed to the public. Licensee may provide
access to and use of the Software only to those third parties
that (i) provide services to Licensee concerning Licensee's
use of the Software (ii) have a need to use and access the
Software for the exercise or performance of the rights and
obligations granted or imposed under this Agreement, and (iii)
have agreed to substantially similar nondisclosure obligations
imposed by Licensee as those contained herein.
(b) JDA will keep confidential and not disclose any proprietary
information of Licensee to which JDA is permitted access or
which is disclosed to JDA by Licensee including, without
limitation, any confidential proprietary business records,
financial information, trade secrets, strategies, methods or
practices of Licensee or other information specifically
designated by Licensee (collectively "Licensee's Confidential
Information"), without Licensee's express written consent,
except in connection with providing services to Licensee
hereunder or pursuant to a separate written agreement;
provided, however, that Licensee's Confidential Information
will not include any information which becomes part of or in
any manner whatsoever relates to the Software including
without limitation, the look, structure or organization of the
Software.
(c) Neither party will have any obligation of confidentiality with
regard to information which (i) is or becomes a part of the
public domain through no act or omission of such party, (ii)
was in such
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party's lawful possession prior to the disclosure thereto and
had not been obtained by such party either directly or
indirectly from the disclosing party, (iii) is lawfully
disclosed to such party by a third party without restriction
on disclosure, (iv) is independently developed by such party,
or (v) is required to be disclosed by applicable law.
(d) Both parties agree that if either party breaches any of its
obligations of confidentiality, the other party may be
irreparably harmed and in addition to all other remedies which
such party may have, it may be entitled to relief in equity
without the necessity of proof of actual damage.
7.11 CUMULATIVE OBLIGATIONS. Each party's obligations hereunder are in
addition to, and not exclusive of, any and all of its other obligations
and duties to the other party, whether express, implied, in fact or in
law.
7.12 RELATIONSHIP OF PARTIES. The relationship of the parties is that of
independent contractors dealing at arms length and, except as expressly
provided in this Agreement, nothing in this Agreement will be construed
so as to constitute the parties as partners, joint venturers or
co-owners or empower either party to act for, bind or otherwise create
or assume any obligation on behalf of the other and neither party will
hold itself out as entitled to do the same.
7.13 OUTSOURCING. Notwithstanding anything to the contrary contained in this
Agreement, Licensee may choose to outsource its data processing to a
third party who would act as an agent on Licensee's behalf, upon JDA's
written consent to the choice of outsourcing company. Prior to
transferring the Software and Documentation to an outsourcing company,
or to permitting an outsourcing company access to Software and
Documentation, such agent shall agree to be bound by the terms and
conditions of this Agreement and Licensee will ensure that use of the
standard software is in accordance with the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, and it will be effective as of the Effective Date.
XXXXX & XXXXXX JDA SOFTWARE, INC.
Signature /s/ Xxxxxxxx X. Xxxxxxx, Xx. Signature /s/ Xxxxx X. Xxxxxxxxx
---------------------------- -----------------------
Name Xxxxxxxx X. Xxxxxxx, Xx. Name Xxxxx X. Xxxxxxxxx
--------------------------------- ----------------------------
Title Vice President-Finance Title Co-Chief Executive Officer
-------------------------------- ---------------------------
Date June 3, 1999 Date
-------------------------------- ----------------------------
[Exhibit A describing module of standard software and Exhibit B defining Site,
omitted. The Registrant undertakes to furnish supplementally a copy of such
omitted exhibits to the Commission upon request.]
EXHIBIT C (PAGE 1 OF 2)
I. FEES
A. INITIAL FEE. Licensee will pay to JDA an Initial Fee in the
amount of three hundred thousand dollars ($300,000.00), plus
tax. This Initial Fee is in consideration of JDA's granting
Licensee the right to use the MMS Standard Software for
information processing at up to three hundred (300)
Licensee-owned retail locations.
B. ADDITIONAL FEE. Licensee will pay to JDA an Additional Fee in
the amount of ten thousand dollars ($10,000.00), plus tax, for
each group of ten (10) additional retail locations at which
Licensee uses the Software for information processing in
addition to the initial three hundred (300) retail locations.
C. GRAPHICAL USER INTERFACE FEE. Licensee will pay to JDA a
Graphical User Interface Fee in the amount of five thousand
dollars ($5,000.00), plus tax, for each group of ten (10)
terminals.
II. PAYMENT SCHEDULE
A. The Initial Fee shall be due and payable as follows:
(1) One hundred thousand dollars ($100,000.00) of the
Initial Fee, plus tax on the entire Initial Fee,
shall be due and payable on the Effective Date;
(2) One hundred thirty-five thousand dollars
($135,000.00) of the Initial Fee shall be due and
payable on the Delivery Date;
(3) Sixty-five thousand dollars ($65,000.00) of the
Initial Fee shall be due and payable sixty (60) days
after the Delivery Date.
B. The Additional Fee shall be due and payable upon the opening
of any store in addition to the initial three hundred (300)
stores. For purposes of determining when such Additional Fee
is due, a store shall be deemed open when it begins making
sales. In the event that there is any reduction in the number
of retail stores for which information processing is being
provided, Licensee shall not be entitled to a refund of any
portion of the Initial Fee or the Additional Fee.
C. The Graphical User Interface Fee for Graphical User Interface
licenses will be due when Licensee notifies JDA, in writing,
that it desires such licenses.
III. OPTION
A. JDA hereby grants Licensee the option to license JDA's
RetailIDEAS (Merchandising Edition) Software for ten (10)
users for one hundred seventy thousand dollars ($170,000.00),
plus tax, (two thousand dollars ($2,000.00), plus tax, for
each additional user). This will be referred to as the
RetailIDEAS Option. The RetailIDEAS Option will expire of its
own terms, if not exercised by May 21, 2000.
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EXHIBIT C (PAGE 2 OF 2)
B. JDA hereby grants Licensee the option to license JDA's Xxxxxx
Planning Software for five (5) users for one hundred six thousand,
two hundred fifty dollars ($106,250.00), plus tax, (one thousand five
hundred dollars ($1,500.00), plus tax, for each additional retail
location). This will be referred to as the Xxxxxx Planning Option. The
Xxxxxx Planning Option will expire of its own terms, if not exercised
by May 21, 2000.
C. JDA hereby grants Licensee the option to JDA's Xxxxxx Allocation
Software for five (5) users for one hundred nineteen thousand dollars
($119,000.00), plus tax, (one thousand five hundred dollars
($1,500.00), plus tax, for each additional retail location). This will
be referred to as the Xxxxxx Allocation Option. The Xxxxxx Planning
Option will expire of its own terms, if not exercised by May 21, 2000.
D. JDA hereby grants Licensee the option to license Graphical User
Interface in the amount of Five Thousand Dollars ($5,000.00), plus tax
for each group of ten (10) terminals. This will be referred to as the
GUI Option and it will remain open for a period of three (3) years
from the Effective Date hereof.
IV. LICENSEE'S FINANCE ARRANGEMENT:
Licensee has advised JDA that it is investigating potential financing
arrangements to finance the purchase of the Software along with other
software, hardware, and other goods. JDA agrees to cooperate with Licensee
in all reasonable manners to assist Licensee in its endeavor.
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