Exhibit 10.6
DEVELOPMENT AGREEMENT STREAMLINE-INTEL
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This agreement ("Agreement") is entered into as of June 13, 1997, ("Effective
Date") by and between Intel Corporation, having a place of business at 0000
Xxxxxxx Xxxxxxx Xxxx., Xxxxx Xxxxx, Xxxxxxxxxx, 00000 ("Intel") and Streamline,
Inc. ("Streamline") on behalf of themselves and their respective worldwide
subsidiaries.
BACKGROUND
A. Intel is developing technologies designed to encourage creation of
hybrid portal applications for Intel Architecture (IA) based PCs. Intel
plans to use in-house technology and industry technology components to
develop portal implementations for different market segments and to
deploy working implementations of portals for a variety of companies
who wish to lead with portal technology in their market segments.
B Streamline is developing an industry-leading, technology based consumer
direct business which Streamline intends to become a primary supplier
of grocery and related goods to time-starved consumers that fit a
certain marketing profile. The parties believe that the deployment of
Intel's hybrid portal concept would enhance the value of Streamline's
business by providing a superior shopping (consumer browsing and order
placement) interface that would ultimately help Streamline's goal of
providing superior consumer service, and provide a technology based
front end that would help in reducing overall costs in the order
acquisition process.
C. Intel wishes to assist Streamline in bringing certain products to
market by providing technical assistance to Streamline. Streamline is
willing to receive such assistance according to the terms of this
Agreement.
AGREEMENT
Intel and Streamline agree as follows:
1. GENERALLY
1. 1. THE CONSUMER GROCERY SEGMENT. The "Consumer Grocery" business
is the business of, in response to on-line computer-based
orders, providing direct delivery to home consumers of
groceries, household staples (i.e. home cleaners, health and
beauty aids), and similar products such as are found
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in a conventional grocery store. Besides Streamline, other
companies engaged in the Consumer Grocery business include
Peapod, Shopper's Express, Homeruns, and ShopLink.
1.2. THE GROCERY APPLICATION. The "Grocery Application" is the
grocery and related product-oriented, sales application to be
developed by Intel and based on Intel's hybrid portal
technology for IA PCs, and the "push" server technology which
drives it. It will be targeted at customers of Streamline's
Consumer Grocery business with sufficiently capable home PCs
and will function as the front end to a business product,
interacting with back end and, Streamline's business
infrastructure (collectively, the "Streamline System"). The
Grocery Application will be scalable so that it will be
usable, though less richly, by a class of PCs which are less
capable than top-end PCs, though there will be a level of
capability at which browser access will represent the level of
interactivity and richness available. The Grocery Application
is described with greater particularity in Attachment A
attached hereto.
1.3. THE PROJECT. The "Project" is the respective efforts of
Streamline and Intel to develop the Grocery Application and
deploy it in Streamline's business. Streamline will manage the
integration of the various components of the working product.
This will include appropriate testing, timely feedback, and
facilitating the interactions with Streamline's other
technology vendors.
1.4. PROGRAM REVIEW. Intel and Streamline shall meet at least
monthly to review the progress of the Project. Among other
things, Intel and Streamline shall work to agree on the scope,
interim milestones, and timing of their respective efforts
hereunder. By June 30, 1997, Intel and Streamline shall agree
on a set of interim milestones, including up to two major
milestones which the parties may identify as presumptive
indicators of timely performance of each party hereunder,
final milestones and specifications.
1.5. PROPRIETARY APPLETS. The parties shall, in good faith, work to
enable Streamline to incorporate up to four functional
features authored by and belonging to Streamline into the
Grocery Application. These may be incorporated either through
"plug-in"
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like interfaces or by incorporation into the code itself as
the parties may agree, and shall be identified by June 30,
1997. Such applets shall remain Streamline's property.
1.6. FURTHER EXTENSIONS. Intel shall have the right *on any *
with * for the purpose of * or * . Such right shall be
exercised, if at all by written notice given no more than
30 days after streamline provides INTEL with written notice
of all relevant terms of such proposed activities.
2. INTEL ASSISTANCE
2.1. PORTAL DEVELOPMENT. Intel will devote reasonable efforts and
resources to the development and delivery of the Grocery
Application. The Grocery Application is licensed as set out in
Section 3.1.
2.2. ADVICE AND CONSULTATION. During the course of the Project,
Intel will provide advice and consultation to Streamline
relating to the technical capabilities of the IA and as to
features or architectures which would optimize use of the
Grocery Application. This consultation may include advice
and/or suggestions on system integration. Intel will work with
Streamline's suppliers on the back end enterprise and commerce
systems to integrate the servers into the back end dataflow,
and may provide input regarding basic Web content to enable
scalability. Streamline remains solely responsible for the
Project and its management other than development of the
Grocery Application.
2.3. MOCKUPS AND DEMONSTRATIONS. In support of the goal of creating
a user preferred interface, during development of the user
interface Intel will supply certain technology demos and
mockups for consumer testing as mutually determined by Intel
and Streamline. These shall remain Intel's property.
2.4. TUNING. During the course of the Project, Intel may develop
and deliver performance tuning modifications ("Tune-Ups") to
Streamline's software applications other than the Grocery
Application. Tune-Ups are licensed as set forth in Section 4.2
below.
* Confidential treatment requested
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2.5. SOURCE. Intel will deliver the Grocery Application in both
source and object forms, subject to the terms hereof. Neither
party shall deliver or disclose Source Code received from the
other without the providing party's written consent.
3. TITLE AND LICENSES
3.1. GROCERY APPLICATION LICENSE. Effective on Intel's delivery and
Streamline's acceptance of the Gold Master of the Grocery
Application, Intel grants to Streamline a fully paid-up
license under Intel's copyrights, to use, reproduce, display,
and distribute (including distribution to Streamline
customers) the Grocery Application in object code form, and to
compile internally and modify the source code form thereof,
all subject to the following provisions:
3.1.1. This license shall only extend to use and
distribution of the Grocery Application in connection
with business transacted in the Consumer Grocery
market segment by Streamline or its franchisees,
including Streamline's subsidiary Regional Operating
Companies, under Streamline's service marks and for
which Streamline derives direct compensation.
3.1.2. The user interface of the Grocery Application shall
contain visible credits and acknowledgments of Intel
for its contributions in a manner to be agreed.
3.1.3. Streamline shall not remove Intel's proprietary
notices from the Grocery Application.
3.2. * STATUS. Until * following the * of the Grocery
Application from INTEL to StreamLine, INTEL shall not *
the Grocery Application to * for * and * in the *. After
such time period, any such * shall be subject to the
provisions of Section 3.4. Prior to the expiration of such
time period, INTEL shall not publicly announce or authorize
* to announce a * in the * for the purpose of using INTEL's
* in the Grocery Application.
3.3. INTEL ARCHITECTURE FOCUS. Streamline promises to (i) only
implement the portal concept for IA-based computers, (ii)
introduce new innovations in non-portal interfaces (browsers)
for IA at least as early as for any other platform and (iii)
develop
* Confidential treatment requested
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back end technology solutions on IA. All non-portal (browser)
features will be readily useable by IA and new features will
be optimized for IA or specially adapted to run on IA. The
focus described in this Section * of StreamLine's * or *
However, Streamline would retain the ability to develop other
technology solutions on their own, or with other parties, as
Streamline sees fit. Intel may provide input for these
efforts. This provision shall not survive termination of the
Agreement on account of breach or nonperformance by Intel.
3.4. TRADE DRESS. Notwithstanding Intel's ownership of the Grocery
Application, to the extent that the user interface of the
Grocery Application incorporates an appearance which consumers
may associate with Streamline as a source of goods and
services and not implied or required by underlying
functionality or the grocery metaphor, Streamline shall be the
owner of the trademark and trade dress rights in such
appearance for the Consumer Grocery market segment. By way of
example, the distinctive background of the interface may
constitute trade dress, while the concept of fulfilling an
ingredients list to a recipe would not.
3.5. NO OTHER LICENSES. Except for the licenses expressly provided
herein, no licenses are granted by either party, either
expressly or by implication, to any intellectual property of
the other. Notwithstanding Intel's ownership in the copyrights
in any specific Intel deliverables, Streamline shall own all
copyrights in its own original work.
3.6. TUNE-UPS. To the extent that Intel prepares and delivers any
Tune-ups to Streamline, Streamline shall have a non-exclusive
license under any Intel copyright therein to incorporate such
Tune-Ups into the software application for which the Tune-Up
was made. Streamline shall retain sole title to the product so
modified, and may license, modify, adapt, translate,
distribute, sell, and otherwise commercialize it in any way
whatsoever without any duty of accounting to Intel arising
from the incorporation of the Tune-Ups. The Parties do not
intend to create a "joint work."
* Confidential treatment requested
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3.7. OTHER TECHNOLOGICAL INPUTS. Intel may deliver to Streamline
certain copyrighted software, other than the Grocery
Application, which Intel has developed either for the purpose
of this relationship or otherwise. Where such materials are
intended for redistribution, Intel shall provide Streamline
with written notice that it has a nonexclusive license under
Intel's copyrights to use the software in accordance with the
terms set out in Section 3.1.
3.8. NEW DEVELOPMENTS. Ownership of new developments, whether
patentable or not, shall be determined in accordance with the
patent laws of the United States. If a patentable invention is
made jointly, patent counsel of the parties shall meet and in
good faith agree on an appropriate manner of securing patent
protection therefor. Any jointly owned intellectual property
may be exploited without any duty of accounting.
4. STREAMLINE OBLIGATIONS RELATING TO THE PROJECT
4.1. DEVELOPMENT EFFORT. Streamline will commit sufficient
financial, technical, and marketing resources reasonably
appropriate to support a coordinated product rollout according
to the schedule set out in this Agreement.
4.2. SUPPORT. Streamline shall provide technical support to its
customers consistent with standard commercial practices and
the nature of the services it provides.
4.3. WARRANTS. In consideration of entering into this Agreement,
Streamline has granted to Intel a warrant to acquire 285,714
shares of Streamline's Common Stock, attached hereto as
Attachment B (the "Warrant"), for no additional consideration.
The Warrant is subject to the provisions of this Agreement.
5. MARKETING
5.1. EVENTS. Intel may invite Streamline to participate in industry
marketing events to provide testimony to the value of IA PCs
in new business models such as the Consumer Grocery business.
In
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turn, if Streamline requests, Intel may elect to participate
in Streamline's marketing efforts
5.2. PUBLICITY. Neither party will reveal the existence or contents
of this Agreement without the consent of the other, except as
provided below or as required by law (in which case the other
party will be first given notice and an opportunity to
object).
5.2.1. Each party may discuss Grocery Application and use
the other party's name in connection with promotion
of its portal technology, provided that neither party
discloses any confidential information about the
other.
5.2.2. Streamline may publicly disclose and position its use
of Intel technology within the general framework
and-timeline set out below. Intel may make public
statements which parallel these permitted comments:
(a) before delivery of the Grocery Application,
Streamline shall keep the relationship confidential
except as agreed by the parties; (b) after delivery
of the Grocery Application the earlier of (i) the
completion of a 12 week in-market test by P&G or (ii)
six months after delivery of the Grocery Application
"Product Launch") Streamline may reveal that Intel
has selected Streamline to be the only beta customer
in the Consumer Grocery segment for its consumer
direct portal technology; and (c) after Product
Launch, Streamline may reveal that its consumer
direct solution is based on Intel architecture and
that Streamline is the first customer to make use of
the Intel consumer direct portal technology.
5.3. RESPECT FOR TRADEMARKS. Streamline shall not use Intel's
trademarks, or portions of them, including MMX(TM),
Pentium(R), Pentium(R) II, or -II, except in accordance with
Intel's guidelines for such use. In particular, Streamline
shall not incorporate any of these marks into its product
names, but Streamline may truthfully report that a product is
optimized or designed for such Intel products.
5.4. TAXES. Each party shall be solely responsible for its own
taxes, including any applicable sales taxes and customs duties
on items acquired under this Agreement. To the extent, if any,
that the applicable taxing authority requires withholding of
taxes
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based on payments made hereunder, the paying party shall
withhold such taxes and provide the payee with the
documentation reasonably necessary to claim a credit therefor.
6. TERM & TERMINATION
6.1. TERM OF AGREEMENT. This Agreement's term commences as of the
Effective Date and terminates as of December 31, 2002, unless
the parties agree to extend it or it is terminated in
accordance with the terms hereof.
6.2. BREACH. Either party may terminate this Agreement by written
notice if the other party is in material breach of any of its
terms and fails to cure such breach within thirty days of
written notice of such breach.
6.3. SURVIVAL. The following provisions shall survive termination
or expiration: 3.1, 3.4, 3.6, 3.8, 5.4, and 7, provided that
where the termination is for breach by a party, the license(s)
granted to such party shall terminate.
6.4. EFFECT OF TERMINATION. The provisions of section 2 of the
Warrant attached hereto shall govern in the case of
termination of this Agreement.
7. GENERAL PROVISIONS
7.1. CONFIDENTIAL TERMS. Confidential information shall be held in
confidence pursuant to the terms of the Corporate
Non-Disclosure Agreement in place between the parties, except
to the extent that the terms are superseded by the express
provisions hereof. Streamline shall not disclose any
information or methods to Intel that Intel will be foreclosed
by confidentiality obligations from incorporating into its own
products, except that this shall not give Intel a right to
Streamline's source code.
7.2. RELATIONSHIP OF PARTIES. The parties are not partners or joint
venturers, or liable for the obligations, acts, or activities
of the other.
7.3. AMENDMENTS AND ASSIGNMENTS. Any change, modification or waiver
to this Agreement must be in writing and signed by an
authorized representative of each party. Neither party may
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assign this Agreement or any portion of this Agreement to any
other party without the other's prior written consent.
7.4. MERGER AND WAIVER. Except for those certain agreements
pertaining to confidentiality, and equity investments, this
Agreement is the entire agreement between the parties with
respect to the development and distribution of the Grocery
Application, and it supersedes any prior or contemporaneous
agreements and negotiations relating thereto. No waiver of any
breach or default shall constitute a waiver of any subsequent
breach or default.
7.5. INTEL CONTRIBUTIONS. Intel represents that the work provided
by Intel hereunder is Intel's original work or properly
licensed from the author(s) thereof.
7.6. SUITS BASED ON INTEL DELIVERABLES. During the term of this
Agreement, Intel shall defend, indemnify, and hold Streamline
and its customers harmless from and against any suit or
proceeding brought against Streamline, its subsidiaries or
customers, based upon a claim that the Grocery Application
alone and not in combination with any other product infringes
the copyright or trade secret of another, or that it infringes
a U.S. patent of which Intel had notice upon or prior to
delivery to Streamline thereof. Streamline's indemnity will
include all damages and costs awarded, including attorneys'
fees, and settlement costs, provided that Streamline shall not
settle any claim without Intel's consent and that Intel shall
not be obligated to pay a settlement or judgment in excess of
$250,000, and further provided that:
7.6.1. Streamline shall promptly notify Intel of any claim
and will provide information, assistance, and
cooperation in defending against it (at Intel's
expense).
7.6.2. Streamline will have the right to participate in the
defense of any claim, at its own expense.
7.6.3. This indemnity shall not apply to software prepared
or supplied by Streamline.
7.6.4. Intel shall have the right to modify the Grocery
Application in order to avoid a claim of
infringement, or to replace it entirely in Intel's
reasonable judgment.
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7.7. RIGHTS. Streamline warrants and represents that it has or
shall obtain all rights necessary to undertake the activities
described in this Agreement and to develop and market the
Streamline System. Streamline shall promptly notify Intel of
any written or otherwise valid charge or claim of infringement
of any third party's right relating to development or
distribution of the Streamline System.
7.8. Suits based on Streamline System. Streamline shall defend,
indemnify, and hold Intel and its customers harmless from and
against any suit or proceeding brought against Intel, its
subsidiaries or customers, based upon the development or
distribution of Streamline System, including any claim that
the Streamline System infringes any third-party intellectual
property right or that the Streamline System (including any
portion supplied by Intel) is in any way related to or a cause
of liability for harm to a human being (a "Claim").
Streamline's indemnity will include all damages and costs
awarded, including attorneys' fees, and settlement costs,
provided that Intel shall not settle any claim without
Streamline's consent.
7.8.1. Intel shall promptly notify Streamline of any Claim
and will provide information, assistance, and
cooperation in defending against it (at Streamline's
expense).
7.8.2. Intel will have the right to participate in the
defense of any Claim, at its own expense.
7.8.3. This indemnity shall not apply to software prepared
or supplied by Intel.
7.9. NO WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MATERIALS
CONTRIBUTED BY EACH PARTY HEREUNDER ARE PROVIDED AS IS. THE
PARTIES MAKE NO WARRANTIES WITH RESPECT TO SUCH MATERIALS,
EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE.
7.10. LIMITED LIABILITY. Neither party shall be liable to the other
for lost profits, expected revenues, or development or support
costs arising from any termination of this Agreement. IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF
PROFITS, DATA, OR USE OR ANY SPECIAL,
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CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES
ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES
WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS
AGREEMENT.
7.11. COMPLIANCE WITH LAW. Neither party shall export, distribute,
or sell the Streamline System or the Intel Technology in
violation of US or other applicable law.
7.12. NOTICES AND REQUESTS. All notices and requests required or
made under this Agreement must be in writing and shall be
personally delivered or if mailed postage prepaid, certified
or registered mail, or overnight courier to the addresses
listed below:
To Intel To Streamline
Intel Corporation Streamline, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.,
Xxxxx Xxxxx, Xxxxxxxxxx 00000
ATTN.: GENERAL COUNSEL ATTN.: GENERAL COUNSEL
7.13. CHOICE OF LAW. Any claim based on this Agreement shall be
governed by the laws of Delaware, and shall be subject to the
exclusive jurisdiction of the state and federal courts located
there.
In witness of their agreement the parties have caused the Agreement to be
executed below by their authorized representatives.
Intel Corporation Streamline, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- ---------------------------
Name Xxxxxx X. Xxxxxxxx Name Xxxxxxx X. XxXxxxx
Title Sr. VP Title Chairman
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DEVELOPMENT AGREEMENT STREAMLINE-INTEL
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Attachment A
Description and Development Plan
This Attachment is effective solely as a technical description and development
plan. It is subordinate to the provisions of the Agreement to which it is
attached.
DESIGN PHILOSOPHY
-----------------
Intel seeks to build a showcase application that brings real value to
Streamline and its customers by taking advantage of the capabilities inherent
in the *. The team will make *, and * of the * to aid consumers in their
shopping).
For this to be a practical product, Intel plans to use * wherever possible.
These can be from the industry or from *. However, since this is a new
application, * will also be developed. Intel plans to develop these * so that
it can be * .
OVERVIEW OF SYSTEM
------------------
The * Intel is developing consists of two major parts: the * and the *. The *
is a *. It is * that will speed up the shopping experience for the
consumer. The * of the product * Streamline's *, and will be responsible for
* the * and facilitating the transactions.
[diagram depicting the conceptual design of the application]
Note: Intel will be responsible for implementing the *, the * and the parts
of the *. Responsibility for * of the *.
* APPLICATION
-------------
The * will be the * to Streamline for * with *. (Consumers will always have
the option of accessing Streamline's services through a *. It will have the
following features:
- *
- * that will be designed with consumer preferences in mind.
- * which will enable *
- * (in the form of a CD or DVD disk)
- *
- * (to suit different users)
- * to adapt the application (and the store) to the user
- *
[diagram depicting the integration of the
several functional segments of the application]
* Confidential Treament Requested
-2-
*
The * keep the client * with the right information. These * will need to be *
including the * and *. Because of * of this * is very much * the * to *.
[diagram depicting the integration of the
several functional segments of the application]
* Confidential treatment requested
AMENDMENT NO. 1
TO
DEVELOPMENT AGREEMENT STREAMLINE-INTEL
("AGREEMENT")
The subject Agreement Effective June 6, 1997 between Intel Corporation ("Intel")
and Streamline, Inc. ("Streamline") is hereby amended pursuant to paragraph 7.3
of the Agreement, effective as of September 22, 1998, to incorporate the
following modifications:
1. The following is added at the end of Section 7.7:
Streamline acknowledges that the Grocery Application will
contain search engine software owned by Verity, Inc., and that
Intel has entered into a license agreement with Verity,
allowing Intel to sublicense the search engine software as
incorporated in the Grocery Application, to Streamline (the
"Verity Agreement," attached hereto as Attachment C).
Streamline warrants and represents that it will abide by all
terms and conditions imposed on a sublicensee in the Verity
Agreement. Streamline will defend, indemnify, and hold Intel
harmless from and against any suit or proceeding brought
against Intel resulting from a breach of this representation
and warranty. Streamline's indemnity will include all damages
and costs awarded, including attorneys' fees, and settlement
costs, provided that Intel shall not settle any claim without
Streamline's consent.
The remaining terms of the Agreement remain in full force and effect.
AGREED:
INTEL CORPORATION STREAMLINE, INC.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxx Xxxxx
---------------------------- ----------------------------
Signature Signature
Xxxxxx Xxxxxxxx Xxxxx Xxxxx
---------------------------- ----------------------------
Printed Name Printed Name
Sr. Engineering Manager Vp Marketing
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Title Title
9/08/98 9/22/98
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Date Date
