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EXHIBIT 10.23
SERVICE AGREEMENT AND LICENSE
THIS SERVICE AGREEMENT AND LICENSE ("Agreement" and/or "License") is
made this 20th day of January, 2000, by and between TECH DATA CORPORATION, a
Florida corporation located at 0000 Xxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000
("Tech Data") and DIGITAL COMMERCE CORPORATION, a Delaware corporation located
at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000-0000 ("DCC").
1. Purpose. This Agreement sets forth the terms and conditions under
which DCC will perform Phase 1 services for Tech Data and for the development of
Phase 2 services by DCC. This Agreement also sets forth the terms and conditions
under which Tech Data grants to DCC certain rights and licenses in and to the
Licensed Database identified below for the purposes of performing Phase 1
services and constitutes full and complete consideration for Tech Data and DCC
to enter into and support the validity of this License. It is contemplated by
the parties that as a result of the rights and licenses as granted herein, that
Tech Data's customers (hereinafter "Resellers"), will have the ability to access
a modified version of the Licensed Database containing only that Reseller's
assigned government column level pricing that DCC will have modified to reflect
any price changes unique to each Reseller's government pricing.
2. Other Agreements. This Agreement supercedes all prior agreements and
understandings between the parties as to the Phase 1 services described therein.
DCC and Tech Data are negotiating other (Phase 2) functionality, services and
enhancements, the exact and finally agreed upon nature of which shall be set
forth in a separate mutually acceptable agreement and license in writing setting
form the terms and conditions governing such functionality, services and
enhancements at such time as the parties can reach agreement. No contractual
relationship or continuing obligation for Phase 2 shall be deemed created until
each party shall have the opportunity to complete all service level agreement
requirements to be established, consult with their respective legal counsel and
a definitive agreement and license which sets out each and every agreement of
the parties shall have been mutually agreed upon, reduced to writing and
executed by authorized officers of all parties concerned.
3. Definitions. When used in this Agreement, the Terms listed below shall
have the following meanings:
Licensed Database, for the purposes of this License, means the column level
pricing databases unique to Tech Data. Tech Data has created and compiled the
Licensed Database which is Tech Data's compilation of certain product prices
unique to Resellers for the products distributed by Tech Data assigned to
Resellers based upon criteria determined by Tech Data. The databases that are
licensed under this License are more specifically described in Schedule "A"
attached hereto.
Phase 1, for the purposes of this Agreement and License means software,
algorithms and other functionality that permit Tech Data Resellers to view their
respective Tech Data government pricing,
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maintained on DCC's website but accessed through Tech Data's website. The
Service Level Agreement for Phase 1 is set forth on Schedule "A" attached
hereto.
Phase 2, for the purposes of this Agreement and License, means additional
functionality, services and enhancements including, but not limited to,
functionality, services, and enhancements which will permit Resellers and their
End-user customers to access the Reseller's respective Tech Data government
pricing by accessing DCC's "Fedsite" website and directly place electronic
orders for product to Tech Data. The exact and finally agreed upon nature of the
additional functionality, services and enhancements shall be set forth in a
mutually acceptable agreement in writing signed by both parties.
4. Tech Data Grant of Right and License. Tech Data hereby grants to DCC a
limited, non-exclusive license to use and modify the Licensed Database so that
the Licensed Database may be accessed by each Reseller, or by DCC on behalf of
the Reseller, to view only that government pricing assigned to that Reseller.
DCC acknowledges that Tech Data is the owner of the Licensed Database and the
information contained therein, but DCC has the right to use and manipulate the
Licensed Database as set forth herein without further compensation. DCC shall
not have any right to grant any other person or entity a license to the Licensed
Database, but may permit Resellers to access the portion of the Licensed
Database which shows the government pricing assigned to that Reseller. DCC shall
not permit any Reseller or other third party access to the Licensed Database in
its entire, original form or permit any Reseller or other third party to access
or receive individual detail about any other Reseller or third party's pricing
level.
DCC MAY NOT, except as otherwise specified in this Agreement, (a) copy any of
the Licensed Database, (b) distribute, rent, sublicense or otherwise transfer or
disclose, or transmit any of the database electronically, to any person or
entity, (c) modify, translate, merge or prepare derivative works from the
database, (d) modify, alter, or make other changes to the Trademarks and will
not allow others to make such modifications, alterations, or changes to the
Trademarks, or (e) use any of the database for service bureau or other purposes
not specified in this Agreement. DCC hereby acknowledges that this Agreement and
the delivery of the Licensed Database is not a deliverable under any contract
with the government of the United States of America or any agency thereof.
Tech Data will update the Licensed Database at such times as may be necessary to
ensure current government-pricing is available to DCC at all times.
DCC will place a disclaimer on the webpages it prepares on behalf of Resellers
containing the Reseller's pricing data notifying the viewer that prices are
subject to change.
5. DCC Grant of Right and License. When Tech Data enters into the Phase 2
Agreement and has provided DCC with all information (including, without
limitation, technical information) and data needed by DCC to initiate the work
with respect to Phase 2, DCC shall deliver to Tech Data true algorithm(s) and
associated software which DCC created to create the government pricing changes
to the Licensed Database and shall grant to Tech Data a non-exclusive, royalty
free, irrevocable,
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worldwide license to use same. This grant of license shall survive termination
or expiration of this Agreement.
6. Services and Support. DCC shall perform Phase 1 services and provide
support pursuant to the Service Level Agreement attached hereto as Schedule "A."
7. Fee. DCC will provide the Phase I services to Tech Data without charge
to Tech Data until April 17, 2000. In the event that as of April 17, 2000 Tech
Data has entered into an agreement with DCC for Phase II services and has
provided DCC with all information (including, without limitation, technical
information) and data needed by DCC to initiate the work with respect to Phase
II, then DCC will continue to provide Phase I Services to Tech Data without
charge for an additional period of 3 up to 6 months (the "Additional Period").
In the event that as of April 17, 2000, Tech Data has not (a) either entered
into an agreement with DCC for the provision of Phase 2 Services or (b) provided
the required information, then commencing April 17, 2000, Tech Data shall pay to
DCC a monthly fee of $20,000 (the "Monthly Fee") for the services described on
Schedules A and B hereto. In addition, in the event that at the end of the
Additional Period Tech Data's customers cannot directly place electronic orders
for product to Tech Data using DCC's "Fedsite" and such failure is not the
result of a failure by DCC to use its best efforts to cause Phase 2 to be
sufficiently complete to allow such transactions to take place, then Tech Data
shall commence paying DCC the Monthly Fee.
8. Expenses. DCC shall maintain and pay all fees payable for all licenses
as are necessary for DCC to perform the Services under this Agreement and
additionally and shall be responsible for payment of all of its own expenses
incurred in connection with the performance of Phase I services hereunder. DCC
is expected to have such facilities and equipment as are necessary to perform
the Services.
9. Invoices. DCC shall provide Tech Data with detailed invoices
representing accurately the Services that are charged. All invoices shall be
accompanied by back up documentation sufficient to verify the charges made, and
shall include a detailed description of the Services provided. Tech Data is only
responsible for paying for those Services and expenses that are within the scope
of the Services contemplated in this Agreement.
10. Relationship of Parties. The parties intend that the relationship
between them created by this Agreement shall be that of an independent
contractor. Neither DCC nor DCC's agents, employees or servants shall be or
shall be deemed to be an employee, agent, or servant of Tech Data. DCC shall be
solely and entirely responsible for DCC's acts and for the acts of DCC's agents,
employees, servants and subcontractors during the performance of this Agreement.
Tech Data and DCC agree that, for federal tax purposes, neither DCC nor DCC's
agents, employees, or servants shall be treated as an employee of Tech Data with
respect to the Services. It is understood that Tech Data does not agree to use
DCC exclusively. It is further understood that DCC shall not have any power or
authority to bind Tech Data.
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11. Conduct by DCC. DCC agrees to conduct DCC's business in a reputable
manner and agrees to comply with all federal, state and municipal laws, rules,
regulations, and codes of ethics that are binding upon or applicable to DCC or
to DCC's business, equipment or personnel engaged in operations covered by this
Agreement, or accruing out of the performance of such operations. DCC, or anyone
engaged directly or indirectly by DCC, shall not act inappropriately, including
but not limited to giving gifts or seeking or giving favors to or from Tech Data
employees. DCC will notify Tech Data if it becomes aware of any inappropriate
act, or activities beyond the scope of the Services contemplated by this
Agreement of its employees or others directly or indirectly engaged by it, or by
Tech Data's employees.
12. Confidentiality.
12.1 The Licensed Database delivered to DCC by Tech Data is "Confidential
Information". In addition, any information regarding the Licensed Database or
Tech Data's systems or procedures, provided in writing or which is presented
orally by Tech Data to DCC, and reduced to a written summary describing such
confidential oral communication and delivered to DCC within thirty (30) days, is
also Confidential Information. All such Confidential Information is proprietary
to Tech Data and constitutes trade secrets. Confidential Information may not be
copied, reproduced or distributed except as expressly permitted in this
Agreement. DCC shall not sell, lease, license, assign, transfer, or disclose the
Confidential Information to any third party and shall not copy, reproduce or
distribute the Confidential Information except as expressly permitted in this
Agreement. DCC shall protect Confidential Information by using the same degree
of care but no less than a reasonable degree of care as it uses to safeguard its
own confidential or proprietary information of a like nature from unauthorized
use, disclosure or dissemination. DCC shall not reverse engineer the Licensed
Database, or software or disassemble, decompile, or apply any procedure or
process to the Licensed Database or Software in order to ascertain, derive,
and/or appropriate for any reason or purpose, the source code or source listings
for the Licensed Database or Software or any trade secret information or process
contained in the Licensed Database or Software.
12.2 The Licensed Database and Tech Data's method of representation of
"column level pricing," approach, and concept shall also be included in the
definition of Confidential Information.
12.3 DCC agrees to restrict access to Confidential Information of Tech Data
to only its employees who require such access in the course of their assigned
duties and responsibilities and who have been informed of Tech Data's
obligations. DCC agrees that its employees and independent contractors who may
have access to any Confidential Information of Tech Data will be legally
obligated, by a written agreement, to preserve the confidentiality of such
information.
12.4 In addition to any and all remedies of Tech Data hereunder or under
applicable law, all of which shall be cumulative and exercisable concurrently,
Tech Data shall be entitled to seek an injunction from a court of competent
jurisdiction for the purpose of stopping or preventing any existing or
anticipated breach of the terms of Section 12 of this Agreement, which rights
shall not preclude the additional right of Tech Data recovering damages for any
breach. The prevailing party
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in any such dispute shall be entitled to its reasonable attorney's fees and
costs. The obligations of the parties under this Section 12 shall survive
termination or expiration of this Agreement.
12.5 The foregoing obligations shall not apply with respect to any
Confidential Information which: (i) was in the possession of or known by the
other party without an obligation of confidentiality prior to receipt from the
disclosing party, or (ii) is or becomes public knowledge through no fault or
acts of the other party, or (iii) is or becomes lawfully available to the other
party from a third party without an obligation of confidentiality; (iv) is
independently developed by the other party without use of any such
Confidential/Proprietary Information, or (v) is required to be disclosed
pursuant to any law, code or regulation, provided the disclosing party is given
ten (10) days prior written notice in order that it may seek a protective order.
13. Work Product/Return of Corporation's Property. DCC agrees that on
termination of this Agreement for any cause whatsoever, DCC will return to Tech
Data any of Tech Data's property in DCC's possession or under DCC's control,
including but not limited to, business records, database information, names,
addresses, and other information with regard to the Licensed Database. It is
acknowledged and agreed that no transfer, grant, license, right, or assignment
of Tech Data's Intellectual Property Rights by Tech Data to DCC is contemplated
by this Agreement.
14. Term. The term of this Agreement shall commence on the date set forth
above and, unless terminated by either party as set forth in this Agreement,
shall remain in full force and effect for a term of one (1) year unless prior
written notification of termination is delivered by one of the parties in
accordance with the notice provision in Section 15 of this Agreement.
15. Termination. Either party may terminate this Agreement at any time,
without cause, by giving the other party at least thirty (30) days prior written
notice. DCC agrees on termination of this Agreement to immediately cease
accessing the Licensed Database and to return the software, if any. The Licensed
Database includes, but is not limited to, data structures, technical and other
specifications, advice and other data or information. All data and other
information available on the database is proprietary, confidential and the sole
property of Tech Data or its licensees. Unauthorized action may violate not only
this Agreement but the copyright laws of the United States, for which both
criminal and civil penalties exist by law.
16. Miscellaneous.
A. Notice. All notices provided for herein shall be in writing,
and may be by hand (or courier) delivery, overnight mail, telecopier, facsimile,
or by certified or registered receipt requested mail, addressed as follows:
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Licensee: DIGITAL COMMERCE CORPORATION
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxx, President & CEO
Phone: (000) 000-0000
Telecopier: (000) 000-0000
Tech Data: Tech Data Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxx, Senior Manager of Operations, Government Services
with a copy to General Counsel at the same address
Phone: (000) 000-0000
Telecopier: (000) 000-0000
Notice to any party shall be deemed complete upon the occurrence of any one of
the following: (i) hand delivery to said party, (ii) completion of transmission
by telecopy a facsimile of said notice with telephone confirmation of receipt,
(iii) one business day after sending said notice by overnight mail or, (iv) five
business days after depositing the same with the United States Postal Service,
addressed to that party with the proper amount of postage afixed thereto, if
sent by registered or certified mail, return receipt requested. Receipt of any
notice by any of the persons listed above to receive notices to a party shall
constitute actual receipt of such notice by that party.
B. Entire Agreement and Amendment. This Agreement, including any
Schedules and documents referred to in this Agreement or attached hereto,
constitutes the entire and exclusive statement of Agreement between the parties
with respect to its subject matter and there are no oral or written
representations, understandings or agreements relating to this Agreement which
are not fully expressed herein. The parties agree that unless otherwise agreed
to in writing by the party intended to be bound, the terms and conditions of
this Agreement shall prevail over any contrary terms in any purchase order,
sales acknowledgment, confirmation or any other document issued by either party
affecting the purchase or sale of Products hereunder.
C. Waiver. Any waiver by ether party of a breach of any provision
of this Agreement by the other party shall not be construed as a waiver of any
subsequent breach.
D. Severability. If, but only to the extent that, any provision
of this Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this Agreement
shall be deemed amended by modifying such provision to the extent necessary to
make it legal and enforceable while preserving its intent.
E. Construction. Section headings, captions, or abbreviations are
used for convenience only and shall not be resorted to for interpretation of
this Agreement. Wherever the context so
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requires, the masculine shall refer to the feminine, the singular shall refer to
the plural, and vice versa.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first written above.
DIGITAL COMMERCE CORPORATION, a Delaware corporation
By:
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As its:
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TECH DATA CORPORATION, a Florida
corporation ("Tech Data")
By:
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As its:
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