1
EXHIBIT 10.21
QUALITY SOFTWARE SYSTEMS, INC.
LICENSE AND INTEGRATION AGREEMENT
This AGREEMENT is made and entered into as of the 25th day of June 1999 by and
between Quality Software Systems Inc., a New Jersey corporation with offices at
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("QSSI") and the Client
identified below ("Client").
------------------------------------------- ------------------------------------
Client: Xxxx.xxx Inc. City: San Francisco
------------------------------------------- ------------------------------------
Address: 000 Xxxxxxx Xx., Xxxxx 000 Xxxxx, Xxx: XX 00000
------------------------------------------- ------------------------------------
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 ACCEPTANCE "Acceptance" of a deliverable means completion of the process set
forth in Paragraph 7.1 for Developed Software and Paragraph 7.2 for other
deliverables.
1.2 ACCEPTANCE TEST "Acceptance Test" means the procedure set forth in Paragraph
7.1 hereto.
1.3 BASE SYSTEM Unmodified version of the current release of PowerHouse/WMS as
identified by the documentation provided with each release.
1.4 CLIENT "Client" means the entity identified on the cover page to this
Agreement, including any permitted successor or assignee of Client.
1.5 CONFIGURATION The use of tables and other user executable program options,
by the Client or QSSI, in order to customize the Developed Software.
1.6 QSSI SERVICES "QSSI Services" means all of the professional services
rendered to Client by QSSI pursuant to this Agreement.
1.7 DEVELOPED SOFTWARE "Developed Software" shall mean all software written by
(i) QSSI hereunder, or (ii) by Client under the direction and direct supervision
of QSSI and as to which QSSI has certified in writing that it meets QSSI's
programming standards. Developed Software shall also include QSSI proprietary
software which has previously been developed by QSSI and which is delivered to
Client.
1.8 IMPLEMENTATION SCHEDULE "Implementation Schedule" means the schedule set
forth on Schedule A, or any subsequently prepared schedules superseding Schedule
A.
1.9 MAINTENANCE "Maintenance" consists of the ongoing Developed Software support
services set forth in Schedule C. The Maintenance set forth in Schedule C will
be provided pursuant to a separate executed Maintenance and/or Software Support
agreement between the Parties.
2
1.10 MODIFICATIONS All software revisions made to the Base System written by (i)
QSSI hereunder, or (ii) by Client under the direction and direct supervision of
QSSI and as to which QSSI has certified in writing that it meets QSSI's
programming standards.
1.11 PARTY The term "Party" shall mean Xxxx.xxx or QSSI, and the term "Parties"
shall mean Xxxx.xxx and QSSI.
1.12 PHASE "Phase" means each summarized section of Schedule A. Any additional
modifications requested after the initial design will each be treated as a
separate Phase.
1.13 REQUIREMENTS DEFINITION STUDY "Requirements Definition Study" or "RDS"
means the mutually agreed system design changes to the Base System, as such the
RDS may be revised pursuant to Paragraph 6.1. Upon Acceptance of the RDS by
Client, the RDS will supersede all other requirements and functionality
documentation for all purposes hereunder.
1.14 SHELF VERSION "Shelf Version" means the version of each Phase of the
Developed Software which is Accepted by Client pursuant to Paragraph 7.1.
1.15 SOFTWARE SYSTEM "Software System" means the set of computer programs and
documentation developed by QSSI, the Client, and/or third parties in connection
with the entire warehouse management implementation project. This system can
include the Developed Software, Third Party Software, interfaces, and
integration.
1.16 THIRD PARTY SOFTWARE "Third Party Software" is all software which is
incorporated in, makes up or is to be accessed by the Software System which is
not Developed Software and is identified on Schedule B.
2. SOFTWARE SYSTEM
2.1 Subject to the terms and conditions of this Agreement, QSSI agrees to
implement the Software System in accordance with the Implementation Schedule and
RDS, with the reasonable assistance of Client personnel and resources.
3. CONSULTING SERVICES
3.1 QSSI shall supply Client with any supporting documentation which QSSI has
developed for the software system.
4. LICENSE AND PROPRIETARY RIGHTS
4.1 GRANT OF LICENSE Subject to the terms and conditions of the Agreement, QSSI
hereby grants to Client a perpetual, irrevocable, non-exclusive and
non-transferable (except as set forth in Paragraph 12.5) license (the "License")
to use and modify the Developed Software and other QSSI developed deliverables
which License Client hereby accepts. Any additional restrictions or limitations
are set forth in Schedule D.
-2-
3
4.1B EXCLUSIVITY For a period of three (3) years from the effective date of this
Agreement, (i) QSSI shall not grant to any Competitor of Client any right to use
any modification or integration software developed by QSSI for Client hereunder,
or any portion thereof, without prior written consent of Client, (ii) QSSI shall
not access or refer to any modification or integration software developed by
QSSI for Client hereunder, or any portion thereof, when working with any
competitor of Client and (iii) QSSI shall not provide to any Competitor of
Client a more favorable price or delivery for similar modifications of the Base
System than QSSI provides to Client hereunder. As used, herein, "Competitor of
Client" means any web site or other Online service or entity that markets,
sells, or allows end users to purchase pet care products, including without
limitation food, health care products, toys, cages, and leashes for dogs, cats,
fish, birds, ferrets, reptiles and other animals.
4.2 PROPRIETARY RIGHTS All financial data and all information related to
Client's organizational structure ("Client Data") are and shall remain the
exclusive property of client, and shall be kept confidential by QSSI pursuant to
the provisions of Paragraphs 4.3 and 4.4. QSSI retains title to the Developed
Software and related documentation and other deliverables developed hereunder,
including all copies thereof and all rights to patents, copyrights, trademarks,
trade secrets and other intellectual property rights inherent therein and
appurtenant thereto. Except as set forth herein, Client shall not, by virtue of
this Agreement or otherwise, acquire any proprietary rights whatsoever in the
Developed Software or any other deliverables developed hereunder, which shall be
the sole and exclusive property of QSSI. No identifying marks, copyright or
proprietary right notices may be deleted from any copy of the Developed Software
provided to or made by Client.
4.3 CONFIDENTIALITY Client shall only permit access to the Developed Software by
its employees who have a need to know in connection with the license rights
granted under this Agreement. Client shall not transfer, publish, disclose,
display or otherwise make available any portion of the Developed Software to
others. The Parties acknowledge that in the course of performing their
responsibilities under this Agreement, they each may be exposed to or acquire
information that is clearly identified as proprietary to or confidential to the
other Party. The Parties agree to hold such information in strict confidence and
not to copy, reproduce, sell, assign, license, market, transfer, give or
otherwise disclose such information to third parties or to use such information
for any purposes whatsoever, without the express written permission of the other
Party, other than for the performance of obligations, or exercise of rights
hereunder, and to advise each of their employees, agents and representatives of
their obligations to keep such information confidential. All such confidential
and proprietary information, Client data, finances, business plans and computer
software are hereinafter collectively referred to as "Confidential Information."
The Parties shall use their reasonable efforts to assist each other in
identifying and preventing any unauthorized use or disclosure of any
Confidential Information. Without limitations of the foregoing, the Parties
shall advise each other immediately in the event that either learns or has
reason to believe that any person who has had access to Confidential Information
has violated or intends to violate the terms of this Agreement, and will
reasonably cooperate in seeking injunctive relief against any such person. Each
party shall be entitled to disclose the existence of this Agreement but agrees
that the terms and conditions of this Agreement shall be treated as confidential
information and shall not be disclosed to any third
-3-
4
party; provided, however, that each party may disclose the terms and conditions
of this Agreement; (i) as required by any court or other government body; (ii)
as otherwise required by law; (iii) to legal counsel of the parties; (iv) to
accountants, banks and financing sources and their advisors that are subject to
confidentiality provisions at least as protective of the disclosing party's
confidential information as those set forth herein; or (v) in connection with
the enforcement of this Agreement or rights under the Agreement.
4.4 NON-CONFIDENTIAL INFORMATION Notwithstanding the obligations set forth in
Paragraph 4.3, the confidentiality obligations of the Parties shall not extend
to information that:
a. is, as of the time of its disclosure, or thereafter becomes part
of the public domain through a source other than the receiving
Party;
b. was known to the receiving Party as of the time of its
disclosure;
c. is independently developed by the receiving Party;
d. is subsequently learned from a third party not under a
confidentiality obligation to the providing party; or,
e. is required to be disclosed pursuant to court order or
government authority, whereupon the receiving Party shall
provide notice to the other Party prior to such disclosure.
5.5 FEES AND PAYMENT
5.1 FEES The fees for QSSI Services are set forth in Schedule E. In the event
the project is successfully launched according to the requirements set forth in
the RDS on or before August 5, 1999, Client [*] to the greater of [*] of the [*]
provided, however, [*] shall not exceed [*]. In the event the project is not
successfully launched according to the requirements set forth in the RDS until
after August 5, 1999, QSSI shall [*] and the [*] QSSI shall be [*] by an [*] of
the [*] that would have [*] the project were [*], for each day the project
launch is late up to a maximum of 7 days provided, however, that the penalty
does not exceed [*]. QSSI shall not incur [*] or any reduced payment if delays
are caused by Client, any third party vendor contracted by Client or act of God
that befalls on Client. QSSI shall not receive the bonus but also shall not
incur any reduced payments if the project launch is delayed by an act of God
that befalls on QSSI.
5.2 PAYMENT Client shall pay QSSI in accordance with the Fee and Payment
Schedule set forth in Schedule E. All invoices issued by QSSI hereunder are due
upon receipt of invoice. Payments not received within thirty (30) days or their
due date shall be subject to late charges of one and one-half percent (1-1/2%)
per month, and having remained outstanding for sixty (60) days, shall give rise
to a material breach of this Agreement justifying the suspension of the
performance of services and/or immediate termination of this Agreement by QSSI.
Client also agrees to pay all reasonable expenses incurred by QSSI in enforcing
he provisions of this Agreement. No failure by QSSI to request any such payment
or to demand any such performance shall be deemed a waiver by QSSI of Client's
obligations hereunder or a waiver of QSSI's right to terminate this Agreement.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-4-
5
5.3 PROPOSALS FOR SERVICE Proposals for services to be rendered under this
Agreement may be in writing. No estimates are guaranteed in any way or to any
extent by QSSI and do not change this Agreement to a fixed price contract. This
section is not intended to include proposals for hardware or license fees.
6. REVISIONS
6.1 DURING PREPARATION OF REQUIREMENTS DEFINITION STUDY ("RDS") During the
preparation of the RDS, QSSI and Client shall review in greater detail Client's
requirements for the Software System. Where client requests system functions or
performance which vary from that set forth in the Base System, QSSI shall
provide a written estimate of the impact on resources, time duration and costs
which would be caused by implementation of any Modifications. QSSI and Client
will review all such estimates during the preparation and presentation of the
RDS. It is understood that such Modifications may increase or decrease required
resources, time duration and costs. If Client fails to approve the RDS, QSSI or
Client may terminate this Agreement upon thirty (30) days prior written notice
and Client shall pay QSSI services to the date of termination at QSSI's standard
time and materials rates, and the parties shall have no further performance
obligations hereunder.
6.2 AFTER APPROVAL OF RDS After approval of the RDS and before Acceptance, any
system functions or performance which vary in scope from those set forth in the
RDS and which are requested by Client shall be reviewed by QSSI. Within twenty
(5) days of receipt of such request, QSSI, with the cooperation of Client where
reasonably required, shall provide a written estimate of the impact on
resources, time duration and costs, which would be caused by the implementation
of the revision. If the Client accepts the revision, then the resources, time
duration and costs shall be modified as set forth in QSSI's estimate. If the
client fails to Accept the revision, the scope of work as set forth in the RDS
shall remain unchanged and QSSI shall have no further responsibility with
respect to the proposed change.
7. ACCEPTANCE AND ACCEPTANCE TESTING
7.1 ACCEPTANCE OF DEVELOPED SOFTWARE Acceptance of each Phase of the Developed
Software identified in Schedule A may occur upon the completion of the
Acceptance Test performed by the Client. The Acceptance Test shall be to
determine whether the Developed Software operates in accordance with the
specifications as described in the RDS, and shall be conducted as follows: (a)
upon receipt of notice from QSSI that the applicable Phase of the Developed
Software has been developed and installed and is available for Acceptance
Testing, Client shall conduct the Acceptance Test within four (4) calendar
weeks; (b) upon the expiration of such test period, Client shall either certify
that the Phase is accepted or deliver to QSSI a written description of specific
claimed defects in the Developed Software which defects shall be limited to
material failures to conform to the RDS; (c) upon receipt of such written
description. QSSI shall use all reasonable efforts to promptly remedy those
defects that are bona fide, whereupon the Acceptance Test shall be run as is
necessary for determining whether all such identified defects have been
remedied. The Parties shall repeat this cycle until all material defects are
corrected. Certification by Client that the Phase of the Developed Software is
accepted, or in the absence of
-5-
6
such certification, the failure of Client to provide QSSI with a written
description of defects during the review period shall constitute completion of
the Acceptance Test and Acceptance of the Phase of the Developed Software.
Acceptance, whether or not notice has been given shall also be deemed to have
occurred if Client places in productive use, any portion of the Phase of
Developed Software for a period of 14 days. In the event first productive use of
the Developed Software occurs when it is not yet integrated with the Client's
web site system, an additional 14 days of productive use will be extended for
purposes of testing that portion of the system pertaining to the integration
interfaces with the Client's web site system. Acceptance shall be deemed to have
occurred within 60 days after the Developed Software is first placed in
productive use regardless if, through no fault of QSSI, integration with the web
site software has not been accomplished. The formal date of acceptance for
purposes of the warranty as set forth in section 8, shall be retroactive to when
the Developed Software was either certified as accepted by the Client or first
placed in productive use. The version of the Phase so Accepted shall be deemed
the Shelf version of the accepted Phase. Client and QSSI shall each maintain
copies of the Shelf Version in addition to any modified versions that may occur
over time and the Shelf Version shall not be accessed, altered, modified or
otherwise used. In the event that a Phase is not Accepted Pursuant to his
Paragraph, Client's sole remedy shall be to return the Phase to QSSI, along with
the applicable documentation and all copies thereof, and receive a refund of
fees paid to QSSI, for that Phase. This procedure is the exclusive means by
which Client shall be entitled to reject the Developed Software or any Phase
thereof, and the exclusive remedy for any such failure.
7.2 ACCEPTANCE OF OTHER DELIVERABLES For other work product deliverables
requiring Acceptance by Client, Client shall, within twenty (20) days of receipt
of QSSI's statement that the deliverable is complete, review the deliverable and
Accept it or notify QSSI in writing of non-Acceptance, documenting in reasonable
detail any and all material defects in the deliverable. QSSI shall, upon receipt
of such notice, use all reasonable efforts to promptly correct any such material
failures and shall notify Client of its completion of the correction. Client
shall, after receipt of said notice, review the corrected deliverable and report
to QSSI. Client shall do so promptly using diligent efforts, but in no event
shall such process exceed ten (10) days. This cycle shall be repeated only as is
reasonably necessary. A deliverable shall be deemed Accepted by Client if
either: (a) Client notifies QSSI in writing of its Acceptance, in which event
the Acceptance date shall then be the date of such notice; (b) Client fails to
notify QSSI in writing within the applicable time period of any material defect
in the deliverable, in which event the Acceptance date shall be the last day of
said period; (c) client places in productive use under the terms defined in
Paragraph 7.1, any portion of the deliverable.
8. WARRANTIES AND DISCLAIMER
8.1 QSSI WARRANTIES QSSI represents and warrants, subject to Paragraph 8.2, that
the Base System shall conform in all material respects to the documentation,
provided, and only to the extent, that Client notifies QSSI in writing within
one year after the date of productive use of any portion of the Base System
("Base System Warranty Period") of any such material non-conformity. QSSI
further represents and warrants, subject to Paragraph 8.2, that the
modifications of each Phase of the Developed Software shall conform in all
material respects to
-6-
7
the documentation, provided, and only to the extent, that Client notifies QSSI
in writing within one hundred and eighty (180) days after the date of Acceptance
of the Phase of the Developed Software ("Modification Warranty Period") of any
such material non-conformity. In the event that the Shelf Version of the Phase
of the Developed Software is found to be defective in such respects, and that
notice with respect to such defect has been given as provided above, QSSI's sole
obligation under this warranty is to respond promptly and to use all reasonable
efforts to promptly remedy such defect within a reasonable time. The Parties
acknowledge that changes to the production version of the Developed Software are
likely to be initiated by Client. Accordingly QSSI has no obligation under
warranty or otherwise to support the changes made by Client to the Developed
Software. QSSI's obligation under this warranty is solely with respect to the
Shelf Version.
8.2 QSSI WARRANTY PROCEDURE If changes have been made to the Shelf Version
resulting in variation between the shelf version and the production version,
upon receipt of Client's notice under Paragraph 8.1, client shall duplicate the
problem on the Shelf Version of the applicable Phase of the Developed Software
stored at Client's site for such purpose. If the problem cannot be duplicated,
QSSI's warranty shall not apply and QSSI shall have no obligation to remedy the
cited defect. If the problem duplicated on the Shelf Version, QSSI shall use all
reasonable efforts to promptly repair or correct the Shelf version in accordance
with the terms of this agreement. This warranty does not apply to corrections or
remedies for difficulties or defects arising from system changes, improper
configuration or use of the Developed Software, the hardware or software
environment, Third Party Software, or other causes external to the Developed
Software. If Client requests QSSI assistance with any non-warranty problem, QSSI
will provide assistance, subject to QSSI personnel availability, at its then
standard time and material charges.
8.3 THIRD PARTY SOFTWARE The Parties understand that the Software System may
include certain Third Party Software products which may or may not be listed in
Schedule B hereto. It is acknowledged by Client that Client shall be solely
responsible for obtaining licenses to such Third Party Software, if such
software is not already in Client's possession, including the right to
incorporate such software into the Software System. QSSI MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES,
OPERATIONS, PERFORMANCE OR SUITABILITY OF THIRD PARTY SOFTWARE, INCLUDING THE
ABILITY TO INTEGRATE WITH MODIFICATIONS TO THE SOFTWARE SYSTEM OR OF NEW
RELEASES TO INTEGRATE WITH THE DEVELOPED SOFTWARE. The quality, capabilities,
operations, performance and suitability of such Third Party Software lies solely
with Client and the vendor or supplier of such Third Party Software.
8.4 Disclaimer of Warranty THE WARRANTY SET FORTH IN PARAGRAPHS 8.1 AND 8.2 IS A
LIMITED WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. QSSI DOES NOT WARRANT THAT THE SOFTWARE SYSTEM WILL MEET
CLIENT'S FUTURE OR UNDISCLOSED REQUIREMENTS.
-7-
8
9. LIMITATION OF LIABILITY
9.1 NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER
THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF QSSI TO CLIENT FOR
ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT
PAID TO QSSI BY CLIENT HEREUNDER WITH RESPECT TO THE PHASE WHICH IS THE SUBJECT
OF THE ACTION OR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR
CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR
FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF QSSI SERVICES HEREUNDER AND
OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND
LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY
BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER
APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS
ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF
LIABILITY SET FORTH IN THIS AGREEMENT.
9.2 PATENT AND COPYRIGHT INDEMNIFICATION If an action is brought against Client
claiming that the Developed Software infringes a patent, copyright or
misappropriated trade secret, QSSI will defend Client and pay any damages
awarded against Client, but only if (a) Client notifies QSSI promptly upon
learning of the claim, (b) QSSI has sole control over the defense of the claim
and any negotiation for its settlement or compromise, (c) Client takes no
action, that in QSSI's judgment, is contrary to QSSI's interest and (d) provides
QSSI with full cooperation at QSSI's expense to investigate and defend against
the claim. If a claim may be or has been asserted, Client will permit QSSI, at
QSSI's option and expense, to procure the right to continue using the Developed
Software, or replace or modify the Developed Software to eliminate the
infringement while providing functionally equivalent performance.
Notwithstanding the above, QSSI will have no duty to indemnify Client if the
patent or copyright infringement results from (a) a correction or modification
of the Developed Software not provided by QSSI, (b) the failure to promptly
install any update which QSSI may have provided to Client, or (c) the
combination of the Developed Software with other software or hardware not
provided by QSSI.
10. OTHER RIGHTS AND OBLIGATIONS
10.1 STATUS REPORTS Client and QSSI shall periodically communicate to the
other's Project Leader the current status of the Party's activities, progress of
the work being performed, and resources expended since the last report (and
cumulative totals to date), identification and impact of actual and anticipated
problem areas, and action being taken or alternative actions to be contemplated
and taken to address such problems. Also, if requested by the other Party,
Client
-8-
9
and QSSI shall attend a status meeting, no more frequently than once per month,
to review the status of Client and QSSI activities.
10.2 COOPERATION The Parties acknowledge and agree that successful installation
of the Software System in Client's processing environment shall require their
full and mutual good faith cooperation.
10.3 EMPLOYEE SOLICITATION Both Parties agree not to engage in any attempt to
hire, or to engage as independent contractors, the other's employees or
independent contractors for the two years after termination of this contract,
except as may be otherwise agreed to in writing by both Parties.
10.4 CHARGES Client shall pay QSSI or reimburse QSSI for any out-of-pocket
expenses incurred by QSSI in the fulfillment of its obligations under this
Agreement, which include but are not limited to phone calls, one-way billable
travel time, round trip airfare, lodging, meals, local transportation and
communications, round trip travel expense to QSSI's principal place of business
every two (2) weeks and incidentals incurred in connection with work performed
at Client's place of business. QSSI estimates such expenses for this project
will be less than [*]. If the expenses are expected to exceed that amount, QSSI
will provide advance notice to Client.
10.5 TAXES Client shall pay for, or reimburse QSSI for all sales, use, transfer
or other taxes and all duties, whether international, national, state, or local
however designated, which are levied or imposed by reason of the transaction
contemplated hereby; excluding, however, income taxes on QSSI's net income of
profits.
10.6 INDEPENDENT CONTRACTOR QSSI and its personnel, in performance of this
Agreement, are acting as independent contractors and not employees or agents of
Client. QSSI shall be solely responsible for the payment of compensation of QSSI
personnel assigned to perform services hereunder and such personnel are not
entitled to the provisions of any Client employee benefits. QSSI and not Client,
shall be responsible for payment of worker's compensation, disability benefits
and unemployment insurance or for withholding and paying employment taxes for
all QSSI personnel.
11. TERM This Agreement is effective from the date first set forth above and
shall continue in effect until terminated by either party. Completion of any
specific services or Customer's failure to order additional services hereunder
shall not terminate this Agreement. This agreement can be terminated by either
party upon one month's prior written notice to the other party. Any work order
between the parties still in effect upon termination shall survive until
completed according to its terms.
12. MISCELLANEOUS
12.1 DISPUTE RESOLUTION In the event of any dispute with regard to the
interpretation of this Agreement or the respective rights and obligations of the
Parties, other than those for which injunctive relief is appropriate, and as a
condition precedent to any legal action being
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-9-
10
commenced by either Party, Xxxxx Xxxxxxxxxx of QSSI and Xxxxx Xxxxxxxx of
Client, shall in good faith attempt to resolve the Parties' differences, the
dispute shall be elevated to Ed Troianelo of QSSI and Xxxxx Xxxxxxx of Client
who shall meet in person and, in good faith, attempt to resolve the dispute. If
the dispute is then not resolved within five (5) business days either party may
pursue any remedies then available to it.
12.2 ENTIRE AGREEMENT This Agreement sets forth the entire and exclusive
understanding and agreement of the Parties with respect to its subject matter
and supersedes and merges any prior understanding or agreements, oral or
written. This Agreement may not be modified except by a writing subscribed by
both Client and QSSI.
12.3 FORCE MAJEURE Neither client or QSSI shall be liable to the other for any
delay or failure to perform any of the services or obligations set forth in this
Agreement due to any act of God, fire, flood, casualty, earthquake or other
causes beyond its reasonable control provided that such party shall have used
its best efforts to mitigate its effects.
12.4 NEW JERSEY LAW This Agreement and performance hereunder shall be governed
by the laws of the State of New Jersey without regards to its conflict of laws
provisions. QSSI and Client hereby agree on behalf of themselves and any person
claiming by or through them that the sole jurisdiction and venue for any
litigation rising from or relating to this Agreement shall be an appropriate
federal or state court located in New Jersey. No action, regardless of form,
arising out of this Agreement shall be brought by Client more than one year
after such cause of action shall have accrued.
12.5 ASSIGNMENT Unless in connection with the sale of all or substantially all
of its assets or a merger, neither party may assign this Agreement or any right,
interest or benefit under this Agreement without the prior written consent of
the other party. Subject to the foregoing, this Agreement shall be fully binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
12.6 NOTICE Any communication provided or permitted under this Agreement, unless
otherwise specifically provided otherwise herein, shall be in writing and shall
be deemed given (i) if by hand deliver, upon receipt thereof; (ii) if mailed,
four (4) business days after deposit in the U.S. mails, postage paid, certified
mail, return receipt requested and received. All notices shall be addressed to
Client and QSSI at their respective addresses set forth on the cover of this
Agreement.
12.7 SURVIVAL The following Paragraphs or Sections of this Agreement shall
survive its cancellation, termination or expiration: 4.2, 4.3, 4.4, 8.3, 8.4, 9,
10.3, 10.5, 10.6, and 11.
12.8 CLIENT IDENTIFICATION Upon the written consent of Client, which shall not
be unreasonably withheld, QSSI may use the name of and identify Client as a
Client, in press releases and similar materials distributed to prospective
Clients. Client may from time to time as requested by QSSI but within Client's
sole discretion, allow QSSI to perform site visits to Client's site provided
however that Client is given adequate notice and would not provide proprietary
information to a competitor.
-10-
11
12.9 NO WAIVER The waiver or failure of either Client or QSSI to exercise any
right in any instance shall be deemed a waiver neither of any other right
hereunder not of its right to withhold other waivers of the same rights.
12.10 ENFORCEABILITY If any provision of this Agreement is determined to be
invalid under any applicable statute or rule of law, it is to that extent to be
deemed omitted, and the balance of the Agreement shall remain enforceable.
CLIENT AND QSSI HAVE READ AND AGREES TO ALL OF THE ATTACHED AND INCORPORATED
TERMS AND CONDITIONS. THIS AGREEMENT SHALL BE EFFECTIVE WHEN EXECUTED BY QSSI.
-11-
12
IN WITNESS WHEREOF, the parties have caused this agreement to be executed by
their duly authorized representatives as of the date first written above.
Client: Xxxx.xxx QUALITY SOFTWARE SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ H E Dybuahl
------------------------------ ---------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxxxx Name: H. E. Dybuahl
---------------------------- -------------------------------
Title: VP OPS Title: Director, Sales & Marketing
--------------------------- ------------------------------
Date: July 16, 1999 Date: July 16, 1999
---------------------------- -------------------------------
-12-
13
SCHEDULE A
IMPLEMENTATION SCHEDULE
Xxxx.xxx
Power House Project Plan
Task Name Work Duration Depend Start Finish
-------------------------------------------------------------------------------------------
Project Schedule 39.4d 32d 6/23/99 8/4/99
Project Management 5d 6d 4,5 6/30/99 7/8/99
Requirements Definition Study 20d 13d 6/23/99 7/12/99
Requirements Gathering 6d 2d 6/23/99 6/24/99
Solution Fit Matrix 3d 3d 4 6/25/99 6/29/99
RDS Review 4d 8d 5 6/30/99 7/12/99
Solution Design 7d 7d 4FS+1d 6/28/99 7/7/99
Application Services 39.4d 20d 6/25/99 7/23/99
Order Server Hardware 0d 0d 6/28/99 6/28/99
Order RF Hardware 0d 0d 7/1/99 7/1/99
Receive Server Hardware 0d 0d 9FS+2.4 wks 7/12/99 7/12/99
Receive RF Hardware 0d 0d 10FS+2.4 wks 7/19/99 7/19/99
System Setup 6d 4d 11,12FF+2d 7/16/99 7/21/99
Install System at Site 2d 2d 13 7/22/99 7/23/99
System Adaptation 31.4d 19.63d 6/25/99 7/23/99
Warehouse Design Completed 0d 0d 7/8/99 7/8/99
Table Configuration 10d 10d 7,16 7/8/99 7/21/99
Interfaces 10.63d 14.63d 6/30/99 7/21/99
11-order download 2d 4d 4 6/30/99 7/6/99
13-subscriptions download 1d 2d 19 7/7/99 7/8/99
14-order kill download 1d 2d 20 7/9/99 7/12/99
15-expected receipt download 2d 2d 21 7/13/99 7/14/99
16-expected receipt dld-items .5d .5d 22 7/15/99 7/15/99
17-inventory transaction upld 2d 2d 23 7/15/99 7/19/99
18-shipment upload 2d 2d 24 7/19/99 7/21/99
19-shipment upload-order type .13d .13d 25 7/21/99 7/21/99
Label, Screen & Report Custom 3d 3d 6/25/99 6/29/99
Enhancements 3.77d 3.77d 7/6/99 7/9/99
R3-no stock mod on RF recvg .38d .38d 4 7/6/99 7/6/99
R6-custom returns report .38d .38d 29 7/6/99 7/6/99
O6-total lines as limit
criteria wv .13d .13d 30 7/6/99 7/6/99
O8-picking allocation report .25d .25 31 7/6/99 7/7/99
O10-packing slip mods 1d 1d 32 7/7/99 7/8/99
O17-carton verify screen mods .38d .38d 33 7/8/99 7/8/99
O20-repack screen mods .25d .25d 34 7/8/99 7/8/99
O22-recalc info on repack
screen .5d .5d 35 7/8/99 7/9/99
O24-new divert screen .5d .5d 36 7/9/99 7/9/99
String Testing 4d 2d 18,28 7/21/99 7/23/99
Implementation 25d 15d 7/19/99 8/4/99
User Acceptance Testing Suppt 5d 5d 18,28 7/26/99 7/30/99
User Training 10d 10d 40FF 7/19/99 7/30/99
Production Cutover 10d 5d 7/31/99 8/4/99
14
SCHEDULE B
THIRD PARTY SOFTWARE
1. Sybase System 11.9
2. Windows NT Workstation 4.0
3. Windows NT Server 4.0
4. PowerBuilder 7.0
5. pcANYWERE
6. DBArtisan
7. Seagate Backup Exec for NT
8. CodeSoft THT 3.50
15
SCHEDULE C
MAINTENANCE AND SOFTWARE SUPPORT
For a period of six months following acceptance of the Developed
Software, client shall be entitled to any newly released software upgrades at no
additional license fee charge. All services associated with upgrades are
billable on a time and material basis. Maintenance can be purchased after the
expiration of this six month period at an annual charge of 13% of the license
fee shown on Schedule E plus 13% of any subsequent upgrade license fee charged
for the purpose of increasing the current license fee restrictions thresholds.
Software Support is covered under a separate yearly agreement.
16
SCHEDULE D
LICENSE RESTRICTIONS
1. Scope of License (check one)
CPU specify
------ -----------------------
X Users specify 20 13 RF and 7 CRT Users
------ -----------------------
Site specify
------ -----------------------
Company-wide specify
------ -----------------------
Other specify
------ -----------------------
2. Right to Copy (check one)
One backup copy only
------
X Unrestricted right to copy
------
Other specify
------ -----------------------
3. Client is entitled to object code only.
Client shall cause to be reproduced on all copies of licensed materials
hereunder, all notices of QSSI proprietary rights as are contained in the
original materials.
17
SCHEDULE E
FEE AND PAYMENT SCHEDULE
License Fee
PowerHouse/WMS 20 users* $60,000
Database License** $3,046
TOTAL $63,046
* Payable at contract signing.
** Estimate based on current MS SOL Server pricing which is subject to change.
Services
Billing rates are as follows:
Hourly Rate Daily Rate
Partner $220.00 $1,760
Manager $192.50 $1,540
Leader $165.00 $1,320
Lead Analysts $152.25 $1,218
Analysts $123.75 $990
Programmer $87.50 $700
Estimates of the total services required will be further refined
following completion of the RDS. Services will be billed twice per month and are
payable within 15 days of invoice or postmark date whichever is later. Rates are
for normal business days. Weekend rates are billed at time and one half.
Holidays are billed at double time. Rates are subject to change on the first of
each year, or from time to time upon 30 days notice to the client.
Expenses
All reasonable expenses as set forth under Paragraph 10.4 will be billed
as incurred and payable within 5 days of the invoice or postmark date whichever
is later.
