Exhibit 10.14
INFORMATION TECHNOLOGY
SYSTEMS INTEGRATION AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of the 1st day of May 2000,
between XXXXXXXX'X INC., a Delaware corporation ("Xxxxxxxx'x"), and CRESCENT
JEWELERS, a California corporation ("Crescent").
WHEREAS, in order to meet its business objectives, Crescent requires new,
more effective information technology systems;
WHEREAS, Xxxxxxxx'x has experience in implementing and operating an
information technology system developed for its jewelry retailing business;
WHEREAS, Xxxxxxxx'x is willing to commit the necessary resources to the
implementation of an enhanced information technology system for Crescent and to
the integration of the system with Xxxxxxxx'x operations;
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, and intending to be legally bound, the parties
agree to the following:
1. Integration Services.
--------------------
(a) General. Xxxxxxxx'x shall use commercially reasonable efforts to
-------
complete the implementation of an enhanced information technology system for
Crescent and to complete the integration of that system with Xxxxxxxx'x
operations (the "General Integration Plan"). The specific implementation and
integration steps to be conducted under the General Integration Plan are set
forth on Schedule A.
----------
(b) Access. Crescent shall provide Xxxxxxxx'x (including its employees,
------
agents or independent contractors) with necessary access to Crescent's
facilities, subject to appropriate mutually agreed upon security measures as
either party may reasonably deem necessary.
(c) Testing. Upon completion of the General Integration Plan, Crescent and
-------
Xxxxxxxx'x will perform functional and operational tests of the system and the
performance of the system in such testing shall be subject to the approval of
Crescent, in its sole discretion. Until such time as Crescent has deemed the
system acceptable, Xxxxxxxx'x duties and obligations under this Agreement shall
continue in full force and effect.
(d) Pricing. Crescent shall be responsible for all costs and expenses
-------
associated with the General Integration Plan. Without limiting the foregoing,
Crescent shall reimburse Xxxxxxxx'x for the following:
(1) Any and all software and conversion programming related to the
General Integration Plan;
(2) Any and all additional software license fees incurred by
Xxxxxxxx'x in order to complete the General Integration Plan; and
(3) All reasonable travel costs and expenses incurred by Xxxxxxxx'x
employees in the performance of its obligations under this
Agreement.
2. Payment.
-------
Not later than September 10, 2000, Xxxxxxxx'x shall submit to Crescent a
schedule outlining those costs for which Crescent must reimburse Xxxxxxxx'x in
connection with Section 1(b) of the Agreement (the "Reimbursement Schedule").
Crescent shall remit payment to Xxxxxxxx'x not later than September 30, 2000 for
the amounts listed in the Reimbursement Schedule. If Crescent fails to timely
pay any amounts due under this Agreement, such amounts not paid shall bear
interest at the prime rate, as published by Citibank, N.A.
The provisions of this Section 2 shall survive the termination of the
Agreement.
3. Term.
----
This Agreement shall remain in effect until the earlier of (1) the date on
which the General Integration Plan has been completed as evidenced by the
receipt by Xxxxxxxx'x of written acceptance of the General Integration Plan from
Crescent, or (2) September 30, 2000, unless otherwise terminated pursuant to
this Agreement.
4. Termination.
-----------
a. If (i) Crescent fails to pay amounts due under Section 2 of the
Agreement within 15 days after receipt of written notice of failure to pay (a
"Payment Default") or (ii) Crescent is in material breach of any of its
covenants or obligations under the Agreement and such breach (other than a
Payment Default) continues for 30 days after Xxxxxxxx'x gives written notice of
such breach to Crescent, then Xxxxxxxx'x may immediately or at any time
thereafter terminate the Agreement upon written notice to Crescent.
b. If Xxxxxxxx'x is in material breach of any of its covenants or
obligations under the Agreement, and such breach continues for 30 days after
Crescent gives written notice of such breach to Xxxxxxxx'x, then Crescent may
immediately or at any time thereafter terminate the Agreement upon written
notice to Xxxxxxxx'x.
-2-
5. Independent Contractor Status.
-----------------------------
x. Xxxxxxxx'x shall be an independent contractor with respect to the
Services. Each party shall be responsible for its own employees, and employees
of each party shall not be deemed to have an employment relationship with the
other party. Nothing in this Agreement creates a relationship of partnership or
joint venture between Xxxxxxxx'x and Crescent. This Section 5 shall survive the
expiration or earlier termination of this Agreement.
b. Crescent shall be solely responsible for all liabilities,
demands, damages, costs and expenses (including reasonable attorney's fees),
associated with the operation of its business and shall indemnify, defend and
hold harmless Xxxxxxxx'x and its affiliates and their respective officers and
directors, stockholders and representatives, from and against all liabilities,
claims, demands, damages, costs and expenses (including reasonable attorney
fees) arising from the conduct, actions, inactions or omissions of Xxxxxxxx'x in
connection with the General Integration Plan, except for any such liability,
claims, demands, damages, costs and expenses which result from the gross
negligence or willful misconduct of Xxxxxxxx'x or its employees.
6. Assignment and Delegation.
-------------------------
This Agreement shall not be assignable by any of the parties hereto without
the written consent of the other party, and no party may unreasonably withhold
such consent. Notwithstanding the foregoing, either party may assign this
Agreement, without written consent, to an entity that is a wholly-owned
subsidiary of the assignor.
7. Force Majeure.
-------------
Neither Xxxxxxxx'x nor Crescent shall be liable for any failure to perform
hereunder arising from causes or events beyond the reasonable control and
without the fault or negligence of the party failing to perform including,
without limitation, labor disputes of any kind. If it appears to either party
that an event is likely to occur which would interfere with such party's
performance hereunder, such party shall notify the other party immediately of
the event and of its likely duration. In the event of such failure, the
obligation of the party shall be suspended until the cause of such suspension
shall have been removed.
8. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of Georgia, without regard to conflicts of law principles.
9. Notices.
-------
Any notice, request, consent, approval, waiver and other communication to a
party hereunder shall be in writing and shall be deemed duly given when sent by
first
-3-
class mail, postage prepaid, or delivered by hand, or by telex or facsimile
transmission to such party. Unless changed by written notice to the other
hereunder, all notices shall be addressed to the address shown below:
To Xxxxxxxx'x:
Xxxxxxxx'x Inc.
0 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxx Xxxxx
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxx X. XxXxxxxxx
To Crescent:
Crescent Jewelers
000 00/xx/ Xxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx Xxxxxxx
10. Dispute Resolution.
------------------
a. In the event of any dispute arising in connection with this
Agreement, the parties shall endeavor to resolve such dispute amicably by
discussion and mutual accord. Such discussions shall include meetings between
senior management of Crescent and Xxxxxxxx'x. In the event that the parties are
unable to mutually resolve such dispute through such meetings, then either party
may submit any unresolved controversy or claim arising out of or relating to
this contract, or the breach thereof, to be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
in Atlanta, Georgia, and judgment upon the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The parties shall split
equally the cost of the arbitrators. Any award rendered by the Arbitrator(s) may
include compensatory damages and costs but under no circumstances shall either
party be liable for nor shall the arbitrator(s) award any incidental,
consequential or special (including punitive or multiple) damages.
-4-
b. Notwithstanding anything herein to the contrary, the existence of
a dispute (other than payment of the price) shall not reduce the obligation of
Xxxxxxxx'x to continue to provide Services hereunder during the pendency of the
dispute resolution procedure, or following the resolution of such dispute,
unless the resolution of the dispute contains a finding of a material default by
Crescent or Xxxxxxxx'x as the case may be; provided, however, the foregoing
shall in no way limit the amount of damages or type of relief (whether monetary
or injunctive) to which Crescent or Xxxxxxxx'x is entitled under law or the
provisions of this Agreement.
11. Integration; Amendment.
----------------------
This Agreement supersedes all prior negotiations, commitments and writings
pertaining to the subject matter hereof. Except as otherwise provided in this
Agreement, this Agreement may be amended only by a written instrument duly
executed by both Xxxxxxxx'x and Xxxxxxxx.
00. Waiver.
------
Any waiver at any time, by either Xxxxxxxx'x or Crescent of its rights with
respect to the other party to this Agreement, or with respect to any other
matter arising in connection with this Agreement, shall not be considered waived
with respect to any subsequent default or matter.
13. No Third Party Beneficiaries.
----------------------------
Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any person
other than the parties and their respective successors and assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to a party to this Agreement, nor shall any
provision hereof give any third persons any right or subrogation or action
against any party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXXXX'X INC. CRESCENT JEWELERS
By: ________________________ By: ________________________
Name: ________________________ Name: ________________________
Title: ________________________ Title: ________________________
-5-
