EXHIBIT 10.36
RETAIL PRO SOFTWARE LICENSE AGREEMENT
This Retail Pro Software License Agreement (the "AGREEMENT') is made and entered
into as of December 6, 2002 (the "EFFECTIVE DATE"), by and between Intuit Inc.,
a Delaware Corporation ("INTUIT'), and Retail Technologies International, Inc.,
a California corporation ("RTT').
RECITALS
A. Intuit and RTI entered into that certain Private Label Software Agreement
effective as of September 11, 2001 (the "PRIVATE LABEL AGREEMENT'), pursuant to
which RTI developed for Intuit the Private Label Software (as defined below);
B. Intuit and RTI have entered into that certain Asset Purchase Agreement
effective as of December 6, 2002 (the "APA"), pursuant to which Intuit acquired
certain assets of RTI, including without limitation the Retail Pro Software (as
defined below), the Enterprise Edition (as defined below), the RTI Pre-Existing
Property (as defined in the Private Label Agreement), and the RTI Developed
Property (as defined in the Private Label Agreement);
C. RTI desires to obtain a license from Intuit to the Retail Pro Software, the
Enterprise Edition, and the Tools and Other Software to enable RTI to continue
to support its existing customer base, and to continue marketing, development
and distribution of the Retail Pro Software, the Enterprise Edition, and the
Tools and Other Software in certain markets subject to the limitations specified
in this Agreement; and
D. Intuit is willing to license the Retail Pro Software, the Enterprise Edition,
and the Tools and Other Software to RTI upon the terms and conditions set forth
in this Agreement. The parties therefore agree as follows:
1. DEFINITIONS
1.1 "AFFILIATES" means with respect to any entity, any entity that
controls, is controlled by or is under common control with such entity.
For purposes of the foregoing, "control" of an entity means the power
to direct or cause the direction of the management and policies of such
entity through the ownership of more than fifty percent (50%) of the
voting securities (or in the case of a non-corporate entity, equivalent
ownership interests) of the controlled entity. Notwithstanding the
foregoing, if an Affiliate of RTI is also an Intuit Competitor, such
Affiliate will not be entitled to any rights or licenses granted to RTI
Affiliates hereunder. A third party shall be an Affiliate only so long
as such control exists.
1.2 "DERIVATIVE TECHNOLOGY" means (i) for copyrightable or copyrighted
material, any translation, modification, correction, addition,
improvement, compilation, abridgment revision, or other form in which
such material may be recast, transformed, or adapted; (ii) for
patentable or patented material, any improvement thereon; and (iii) for
material that is protected by trade secret, any new material that
incorporates or is adapted from such existing trade secret material,
including new material which may be protected by copyright mask work
right patent and/or trade secret.
1.3 "ENTERPRISE EDITION" means the source and object code for the new
enterprise version of the Retail Pro Software currently under
development by RTI as of the Effective Date, which relies upon a
different core database than the Retail Pro Software and is intended
for users that have four (4) or more Inventories. Enterprise Edition
also includes any technical documentation, design documents,
instructions, and like materials regarding the Enterprise Edition.
1.4 "ENTERPRISE SEGMENT' means (i) users of the Retail Pro Software or
Enterprise Edition that purchase four (4) or more Inventories, (ii)
users of the Retail Pro Software or Enterprise Edition that purchase a
single Inventory with more than ten (10) Seats, and/or (iii) potential
users of the Retail Pro Software or Enterprise Edition that have either
four or more retail sales locations or a single retail sales location
with more than ten (10) Seats. This definition is subject to
modification under Section 2.9.
1.5 "EXISTING RTI CUSTOMER" means any person or entity to whom RTI, its
Affiliates, or any Reseller (as defined in Section 2.3(a)) has first
licensed, sold, or distributed copies of the Retail Pro Software (i)
prior to the Effective Date, or (ii) between the Effective Date of this
Agreement and December 31, 2005.
1.6 "INTELLECTUAL PROPERTY RIGHTS" means patent rights (including
patent applications, disclosures, continuations and continuations in
part), copyrights, trade secrets, moral rights, know-how, and any other
intellectual property rights, recognized in any country or jurisdiction
in the world.
1.7 "INTUIT COMPETITOR" means any company providing small and/or
medium-size business management software, products, or services (other
than the Retail Pro Software and/or the Enterprise Edition) that
compete materially with any small and/or medium-size business software,
products or services offered by Intuit at the time of the relevant
event (e.g., a Change of Control (as defined in Section 10.3) or an
assignment (in accordance with Section 11.2). By way of example, Intuit
competitors include, but are not limited to, Sage, PeachTree, Best,
ADP, PayChex, Microsoft, MYOB, Net Ledger and Great Plains, and any
subsidiaries of or companies under common ownership or control with any
of the foregoing. Notwithstanding the foregoing, Intuit Competitors do
not include companies that are primarily engaged in developing,
marketing, and distributing retail system software that targets users
with four (4) or more retail sales locations. By way of example,
companies that are not Intuit Competitors include, but are not limited
to, JDA Software Group, STS Software, SW, Retek and SAP Retail.
1.8 "INVENTORY," means a license to use the Retail Pro Software or
Enterprise Edition to manage inventory at a single site. For purposes
of clarification, a single copy of the Retail Pro Software or
Enterprise Edition can be used for one or more Inventories, and as of
the Effective Date RTI and its Resellers typically price the Retail Pro
Software and Enterprise Edition by the number of Inventories and Seats
licensed by a given user.
1.9 "MANUFACTURING RELEASE" means Intuit's first release for
manufacturing of any version of the Private Label Software or Retail
Pro Software that provides capability for multiple retail sales
locations.
1.10 "MODIFICATIONS" means Updates, Upgrades, and any other
modifications or Derivative Technology of the Retail Pro Software,
and/or the Enterprise Edition, whether made by RTI, Inuit, or any third
party.
1.11 "PRIVATE LABEL SOFTWARE" means the source code and object code for
the customized version(s) of the Retail Pro Software developed by RTI
and Intuit in accordance with the Private Label Agreement, any
subsequent updates and upgrades thereto, and any Derivative Technology
thereof Private Label Software also includes any technical
documentation, design documents, instructions, and like materials
regarding the Private Label Software.
1.12 "RESTRICTED TERRITORY" means the United States, Canada, and the
United Kingdom.
1.13 "RETAIL PRO SOFTWARE" means the source code and object code for
the current and previous releases of RTI's Retail Pro(R) software
product and any and all Modifications thereto (other than the Private
Label Software and the Enterprise Edition). Retail Pro Software
includes any technical documentation, paperwork, instructions, etc.,
regarding the Retail Pro Software.
1.14 "SEAT' means any terminal, cash register, personal computer, or
other device that enables only one individual end user at a time to
access and use the Retail Pro Software or Enterprise Edition pursuant
to a valid license.
1.15 "SMALL BUSINESS SEGMENT" means users (or a group of users that are
Affiliates) of the Retail Pro Software that purchase three (3) or fewer
Inventories, at least one of which is in the Restricted Territory, and
companies within the Restricted Territory that have three (3) or fewer
retail sales locations; provided, however, that a user that purchases
any single Inventory with more than ten (10) Seats, and any company
that has one (1) retail sales location with more then ten (10) Seats,
will be deemed part of the Enterprise Segment, not the Small Business
Segment. By way of clarification, a user will not be deemed part of the
"Small Business Segment" if the aggregate number of Inventories
purchased by such user and its Affiliates exceeds the limitations set
forth in this Section 1.15. This definition is subject to modification
under Section 2.9.
1.16 "TOOLS AND OTHER SOFTWARE" means the software development tools
and other software acquired by Intuit from RTI pursuant to the APA that
are identified in Exhibit F.
1.17 "UPDATES" means any patches, work arounds, bug fixes, error
corrections, minor modifications or enhancements, and other minor
releases of the Retail Pro Software or the Enterprise Edition.
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1.18 "UPGRADES" means any new major release of the Retail Pro Software
or the Enterprise Edition containing new features, new functions,
and/or major modifications or enhancements.
2. OWNERSHIP AND LICENSES.
2.1 OWNERSHIP; COOPERATION: ENFORCEMENT.
(a) Intuit owns and will continue to own all right, title, and interest
in and to the Private Label Software, Retail Pro Software, the
Enterprise Edition, the Tools and Other Software, any and all
Modifications, and all Intellectual Property Rights in any of the
foregoing. RTI, its Affiliates, and its and their Resellers will obtain
no rights in or to the Private Label Software, Retail Pro Software,
Enterprise Edition, or Tools and Other Software by operation of this
Agreement or otherwise, other than the rights and licenses set forth in
this Section 2. RTI hereby assigns irrevocably to Intuit all right,
title, and interest, including without limitation any Intellectual
Property Rights and any rights in Derivative Technology that it has or
may acquire in the Retail Pro Software, the Enterprise Edition, and any
Modifications thereto. RTI will ensure that each employee or
subcontractor to RTI who is involved in developing Modifications has
executed an enforceable assignment of all rights therein to RTI or
Intuit.
(h) RTI will reasonably cooperate with Intuit both during and after the
term in the procurement and maintenance of all Intellectual Property
Rights and assignments created hereunder, and will execute, when
requested, any other documents necessary to carry out the purpose of
this Agreement. Intuit will provide RTI with reasonable prior written
notice if it intends to abandon any pending patent application or
issued patent with respect to the Enterprise Edition. If Intuit does
abandon any pending patent application or issued patent with respect to
the Enterprise Edition or otherwise elects to not file, register or
maintain patents or patent rights with respect to the Enterprise
Edition, then, provided that it first obtains Intuit's prior written
approval, RTI may, at RTI's expense and on Intuit's behalf, file,
register and maintain in force any such patents or patent rights,
provided that RTI names Intuit as the registered owner of any such
patents and patent rights and assigns any such patents or patent right
to Intuit.
(c) If either Intuit or RTI reasonably believes that a third party is
infringing any Intellectual Property Rights in the Enterprise Edition
in contravention of the rights and licenses granted to RTI hereunder,
the party who has made such determination will notify the other party
promptly in writing. Provided that it first obtains Intuit's prior
written approval, which approval shall not be unreasonably withheld or
delayed, RTI may, at its own expense, bring and prosecute actions,
proceedings, suits and counter-suits (collectively "ACTIONS") for
enforcement of such Intellectual Property Rights (including suits for
past infringement). RTI must obtain Intuit's prior written approval of
any settlement of any such Action. In the event that RTI brings any
Action in accordance with this Section 2.1(c), RTI will direct and
control such Action and will provide prompt and regular updates to
Intuit of RTI's intentions and progress toward resolution of such
Action, and Intuit may also participate with counsel of its choosing,
at Intuit's expense. Intuit retains the right to bring any Action that
it deems necessary or appropriate to protect and enforce its
Intellectual Property Rights. If RTI brings any Action hereunder,
Intuit will, at RTI's expense, provide reasonable cooperation in
connection with such Action, including executing such documents as RTI
may reasonably request. If RTI recovers damages and/or other payments
from infringing third parties pursuant to this Section 2.1, such
damages and/or other payments will be applied pro rata against costs
and expenses actually incurred by RTI and Intuit pursuant to this
Section 2.1 (including without limitation fees of attorneys and other
professionals). Thereafter, such damages and/or other payments will be
divided equally between RTI and Intuit.
(d) In the event that RTI develops any software, technology, technical
documentation, design documents, and like materials that are not either
(i) purchased by Intuit pursuant to the APA or (ii) Modifications or
Derivative Technology of the Private Label Software, Retail Pro
Software, or the Enterprise Edition (collectively, the "RTI
TECHNOLOGY"), then RTI will own and will continue to own all right,
title, and interest in and to such RTI Technology, and Intuit obtains
no rights in or to such RTI Technology by operation of this Agreement.
2.2 SOURCE CODE LICENSES AND RESTRICTIONS.
(a) DEVELOPMENT AND SUPPORT LICENSES.
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(i) RETAIL PRO SOFTWARE. Subject to the terms and conditions
of this Agreement, Intuit hereby grants to RTI and its
Affiliates a non-exclusive (except as set forth in Section 3),
royalty free (except as set forth in Section 4), worldwide,
non-transferable (except as set forth in Section 11.2) license
for the term described below to use, copy, display, perform,
transmit and prepare Derivative Technologies of the source
code for the Retail Pro Software and any and all Modifications
thereto created by or for RTI and/or its Affiliates, solely
for purposes of (i) developing Updates and Upgrades for the
Retail Pro Software and (ii) providing support and maintenance
for the Retail Pro Software to Existing RTI Customers. RTI and
its Affiliates may disclose and provide copies of the source
code licensed under this Section 2.2(a)(i) to subcontractors
solely for the purposes set forth in this Section 2.2(a)(i)
and subject to the restrictions set forth in Section 2.2(b).
The license granted in this Section 2.2(a)(i) will
automatically terminate upon the fourth anniversary of the
Effective Date. Prior to such termination, however, the
parties will reasonably negotiate in good faith in an effort
to agree upon terms and conditions for an amendment to this
Agreement to extend such rights on an annual basis.
(ii) ENTERPRISE EDITION. Subject to the terms and conditions
of this Agreement, Intuit hereby grants to RTI and its
Affiliates a non-exclusive (except as set forth in SECTION 3),
royalty free (except as set forth in SECTION 4), worldwide,
non-transferable (except as set forth in SECTION 11.2)
perpetual license to use, copy, display, perform, transmit and
prepare Derivative Technologies of the source code for the
Enterprise Edition and any and all Modifications thereto
created by or for RTI and/or its Affiliates, solely for
purposes of (i) developing the Enterprise Edition and Updates
and Upgrades thereto and (ii) providing support and
maintenance for the Enterprise Edition. RTI and its Affiliates
may disclose and provide copies of the source code licensed
under this SECTION 2.2(A)(II) to subcontractors solely for the
purposes set forth in this SECTION 2.2(A)(II) and subject to
the restrictions set forth in SECTION 2.2(B).
(b) SOURCE CODE LICENSE RESTRICTIONS. The licenses granted in Section
2.2(a) do not include any right to sublicense any rights granted to any
third party, and RTI and its Affiliates will not attempt to sublicense
such rights. RTI and its Affiliates will have no right to any
Modifications made by or for Intuit, and Intuit will have no obligation
to provide such Modifications to RTI or its Affiliates. RTI and its
Affiliates will not distribute any source code for the Retail Pro
Software, the Enterprise Edition, or any Modifications to any third
party, except to those of its subcontractors who have a bona fide need
to access and use the source code for the purposes set forth in Section
2.2(a). Each such subcontractor will be required to enter into a
written agreement (a) providing at least as much protection for
Intuit's Intellectual Property Rights in the Retail Pro Software, the
Enterprise Edition, and any Modifications as the terms and conditions
of this Agreement, and (b) assigning to Intuit or RTI all right, title,
and interest in and to any Modifications created by such subcontractor.
RTI, its Affiliates, and any subcontractors who access the source code
will comply with the source code security procedures set forth in
EXHIBIT D.
2.3 RETAIL PRO SOFTWARE OBJECT CODE LICENSES AND RESTRICTIONS.
(a) RETAIL PRO SOFTWARE LICENSE AND RESTRICTIONS. Subject to the terms
and conditions of this Agreement, including without limitation timely
payment of the royalties set forth in Section 4, Intuit hereby grants
to RTI and its Affiliates a nonexclusive (except as set forth in
SECTION 3), worldwide, non- transferable (except as provided in SECTION
11.2) license to use, make, have made, offer to sell, sell, copy,
display, perform, transmit, and distribute (either on a stand-alone
basis or with other software, provided that if such other software is
developed or distributed by an Intuit Competitor, such other software
may not be bundled with or incorporated into the Retail Pro Software)
the object code versions of the Retail Pro Software, solely in object
code form, through multiple tiers of distribution, including without
limitation, through resellers, distributors, VARs and OEMs
("RESELLERS") (but not through any retail channels in the Restricted
Territory). This license will automatically terminate upon the third
anniversary of the Effective Date.
(b) DISTRIBUTION OF UPDATES AND UPGRADES OF RETAIL PRO SOFTWARE TO
EXISTING RTI CUSTOMERS. Subject to the terms and conditions of this
Agreement, Intuit hereby grants to RTI and its Affiliates an exclusive
(as set forth in Section 3), worldwide, non-transferable (except as
provided in Section 11.2) license to use, make, have made, offer to
sell, sell, copy, display, perform, transmit, and distribute (either on
a stand-alone basis or with other software, provided that if such other
software is developed or distributed by an Intuit Competitor, such
other software may not be bundled with or incorporated into the Retail
Pro Software) the object code versions of Updates and Upgrades for the
Retail Pro Software developed by or for RTI and/or its Affiliates,
solely in object code form, through multiple tiers of distribution,
including without limitation, through Resellers (but not through any
retail channels in the Restricted Territory), and solely to Existing
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RTI Customers. The license granted in this Section 2.3(b) will be
effective only from the Effective Date through the fourth anniversary
of the Effective Date, after which such license will automatically
terminate. Prior to such termination, however, the parties will
reasonably negotiate in good faith in an effort to agree upon terms and
conditions for an amendment to this Agreement to extend such rights on
an annual basis. Upon termination of the license granted in this
Section 2.3(b), RTI and its Affiliates and Resellers will cease all
distribution of any Updates or Upgrades for the Retail Pro Software.
(c) NO SUBLICENSE RIGHTS. Except for sublieensing to its Resellers in
order for such Resellers to exercise their rights hereunder as set
forth in this Section 2.3, the licenses granted in this Section 2.3 do
not include any right to sublicense any of such rights granted to any
third party, and RTI and its Affiliates will not attempt to sublicense
such rights.
(d) RESELLERS. By way of clarification, RTI may exercise it rights in
SECTIONS 2.3(A) AND 2.3(B) through or with any Reseller, regardless of
whether such Reseller also sells, licenses, distributes, transmits or
otherwise provides products or offerings of Intuit Competitors.
2.4 ENTERPRISE EDITION OBJECT CODE LICENSE AND RESTRICTIONS.
(a) DISTRIBUTION OF THE ENTERPRISE EDITION. Subject to the terms and
conditions of this Agreement, Intuit hereby grants to RTI and its
Affiliates a non-exclusive (except as set forth in Section 3), royalty
free, worldwide, non-transferable (except as provided in Section 11.2),
perpetual license to make, have made, offer to sell, sell, copy,
display, perform, transmit, and distribute (either on a standalone
basis or with other software) the object code versions of the
Enterprise Edition and any Updates and Upgrades thereto that are
developed by or for RTI and/or its Affiliates in accordance with this
Agreement, solely (i) in object code form, (ii) to users within the
Enterprise Segment, and (iii) in accordance with the restrictions set
forth in SECTION 2.4(B), through multiple tiers of distribution,
including without limitation, through Resellers (but not through any
retail channels in the Restricted Territory). Such license will
continue in perpetuity unless and until Intuit terminates this
Agreement pursuant to Sections 4.3, 10.2, or Section 10.3.
(b) ENTERPRISE EDITION RESTRICTIONS. Neither RTI, its Affiliates, nor
its Resellers will sell, license, distribute, transmit or provide any
Enterprise Edition software to any customers who are within the Small
Business Segment. Notwithstanding the foregoing, RTI may sell, license,
distribute, transmit, and/or provide Enterprise Edition to Existing RTI
Customers.
(c) NO SUBLICENSE RIGHTS. Except for sublicensing to its Resellers in
order for such Resellers to exercise their rights hereunder as set
forth in this Section 2.4, the licenses granted in this Section 2.4 do
not include any right to sublicense any of the rights granted to any
third party, and RTI and its Affiliates will not attempt to sublicense
such rights.
(d) RESELLERS. By way of clarification, RTI may exercise it rights in
Section 2.4(a) through or with any Reseller, regardless of whether such
Reseller also sells, licenses, distributes, transmits or otherwise
provides products or offerings of Intuit Competitors.
2.5 BRANDING AND PROPRIETARY RIGHTS NOTICES. RTI and its Affiliates
retain all right, title and interest in and to their names and their
trademarks (including, without limitation, the Retail Pro trademark) in
connection with the Retail Pro Software or Enterprise Edition. RTI and
its Affiliates will have no right to and will not use any Intuit brands
or trademarks in any marketing, licensing, sale, or distribution of the
Retail Pro Software or Enterprise Edition, or otherwise indicate that
the Retail Pro Software or Enterprise Edition is licensed from,
endorsed by, or owned by Intuit; provided, however, that if Intuit
provides any copyright or proprietary rights notices to RTI for
inclusion in the Retail Pro Software or Enterprise Edition, then RTI,
its Affiliates, and its Resellers will include such notices with the
Retail Pro Software or Enterprise Edition in a location and form to be
mutually agreed.
2.6 END USER LICENSE AGREEMENT. RTI, its Affiliates, and its Resellers
will include an end user license agreement ("XXXX") with each copy of
the Retail Pro Software, Enterprise Edition, and Tools and Other
Software distributed to an end user. Each such XXXX will include at
least the restrictions described in Exhibit C.
2.7 MODIFICATIONS. RTI will provide to Intuit copies of all source code
and object code of any Modifications to the Retail Pro Software created
by or for RTI and/or its Affiliates within twenty-one (21) days of the
end of each calendar quarter. RTI will have no obligation to provide to
Intuit any Modifications to the Enterprise Edition, provided that
Intuit will own all such Modifications. RTI will have no obligation to
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provide to Intuit any modifications to the Tools and Other Soffivare
that are made by or for RTI, and RTI will own any such modification to
the Tools and Other Software. RTI will promptly notify Intuit of any
claims of Intellectual Property Rights infringement that it knows of
that pertain to the Enterprise Edition, the Tools and Other Software,
or any Modifications thereto.
2.8 PRICING. RTI, its Affiliates, and its Resellers may set their own
prices for sale, licensing or distribution of the Retail Pro Software,
Enterprise Edition, and Tools and Other Software.
2.9 OPTION TO EXTEND ENTERPRISE SEGMENT. Between the Manufacturing
Release and the third anniversary of the Manufacturing Release, Intuit
will have the option, in its sole discretion, upon ninety (90) days
prior written notice to RTI, to extend the definition of the Enterprise
Segment (set forth IN Section 1.4) to include only (i) customers that
purchase at least six (6) Inventories or one Inventory with more than
ten (10) Seats, (ii) companies with at least six (6) retail sales
locations, (iii) companies with a single retail sales location with
more than ten (10) Seats, and (iv) potential customers that have either
six (6) or more retail sales locations or a single retail sales
location with more than ten (10) Seats. In the event that Intuit
exercises the option described above, the revised definition will
become effective upon the later of (i) one (1) year after notice that
Intuit is exercising that option or (ii) the fourth anniversary of the
Effective Date.
2.10 RESELLER REQUIREMENTS. Within one hundred eighty (180) days of the
Effective Date, RTI and its Affiliates will require each of their
Resellers to execute a written agreement with at least the restrictions
described in Exhibit B (each, a "RESELLER AGREEMENT'). No later than
two weeks prior to the date set forth above, RTI will provide Intuit
with a copy of a proposed form of such written agreement so that Intuit
may confirm conformance with the requirements set forth in Exhibit B.
RTI will use commercially reasonable efforts to enforce its Reseller
Agreements, and will inform Intuit OF any MATERIAL BREACH of any
Reseller Agreement that it knows OF.
2.11 MAINTENANCE AND SUPPORT. RTI, its Affiliates, and/or their
Resellers will be responsible for providing any and all maintenance and
support for the Retail Pro Software and Enterprise Edition to end users
that license the Retail Pro Software or Enterprise Edition from RTI,
its Affiliates, and/or their Resellers. Intuit will provide support to
RTI in accordance with Exhibit E.
2.12 TOOLS AND OTHER SOFTWARE. Subject to the terms and conditions of
this Agreement, Intuit hereby grants to RTI and its Affiliates a
non-exclusive (except as set forth IN EXHIBIT F), WORLDWIDE,
NON-TRANSFERABLE (except as provided in SECTION 11.2) perpetual,
royalty-free license to use, make, have made, offer to sell, sell,
copy, modify, create Derivative Technologies of, display, perform,
transmit, and distribute through Resellers (but not through any retail
channels in the Restricted Territory) (either on a stand-alone basis or
with other software, provided that if such other software is developed
or distributed by an Intuit Competitor, such other software may not be
bundled with or incorporated into the Tools and Other Software) the
Tools and Other Software identified in Exhibit F. Intuit will own any
modifications and Derivative Technology of the Tools and Other Software
that are developed by or for Intuit, and RTI will own any modifications
and Derivative Technology of the Tools and Other Software that are
developed by or for RTI. Except for sublicensing to its Resellers in
order for such Resellers to exercise their rights hereunder as set
forth in this Section 2.12, the licenses granted in this Section 2.12
do not include any right to sublicense any of the rights granted to any
third party, and RTI and its Affiliates will not attempt to sublicense
such rights. By way of clarification, RTI may exercise it rights in
this Section 2.12 through or with any Reseller, regardless of whether
such Reseller also sells, licenses, distributes, transmits or otherwise
provides products or offerings of Intuit Competitors.
3. EXCLUSIVITY.
3.1 RTI EXCLUSIVITY COMMITMENT. Except pursuant to the licenses granted
in Sections 2.3 and 2.4, and subject to Intuit's compliance with the
terms and conditions of this Agreement, RTI will not market, sell,
license, sublicense, distribute, or otherwise provide any retail point
of sale software to anyone within the Small Business Segment.
3.2 INTUIT EXCLUSIVITY COMMITMENT FOR RETAIL PRO.
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(a) RETAIL PRO EXCLUSIVITY. From the Effective Date and through the
third anniversary of the Effective Date, subject to RTI's compliance
with the terms and conditions of this Agreement, Intuit will not (i)
license to any third party the right to sell, license, distribute or
otherwise provide the Retail Pro Software as a stand-alone software
product without material added functionality and/or customization for
specific industries or users; or (ii) sell, license, distribute or
otherwise provide the Retail Pro Software as a standalone software
product without material added functionality and/or customization for
specific industries or users; provided, however, that Intuit may
utilize any code, functionality, or other aspect of the Retail Pro
Software in any current or future Intuit products or services and sell,
license, distribute or otherwise provide such code, functionality, or
other aspect of the Retail Pro Software as part of such current or
future Intuit products or services without restriction.
(b) RETAIL PRO EXCEPTIONS.
(i) The exclusivity obligations set forth in Section 3.2(a)
will terminate automatically in the event that Intuit sells or
otherwise transfers its point of sale software business to any
third party (other than to an Affiliate of Intuit).
(ii) The exclusivity obligations set forth in Section 3.2(a)
will not restrict any action by Intuit with respect to the
Private Label Software, including without limitation any
marketing, sublicensing or indirect distribution thereof
(iii) The exclusivity obligations set forth in Section 3.2(a)
will not prevent Intuit from selling, licensing, or
distributing any Intuit-branded software products, including
without limitation Intuit-branded point of sale products
(whether or not based upon or derived from the Retail Pro
Software), including through OEMs, VARs, franchisors,
resellers and/or distributors.
3.3 INTUIT EXCLUSIVITY COMMITMENT FOR ENTERPRISE EDITION.
(a) Enterprise EDITION EXCLUSIVITY. For so long as RTI
continues to use commercially reasonable efforts to actively
market and distribute the Enterprise Edition, subject to RTI's
compliance with the terms and conditions of this Agreement,
Intuit will not sell, license, distribute, or otherwise
provide the Enterprise Edition to any third party, and will
not license to any third party the right to sell, license,
distribute, or otherwise provide the Enterprise Edition.
(b) ENTERPRISE EDITIONS EXCEPTIONS. The exclusivity
obligations set forth in Section 3.3(a) will not prevent
Intuit from selling, licensing, or distributing any software
products that are based on the Private Label Software or the
Retail Pro Software, including without limitation
Intuit-branded point of sale products, including through OEMs,
VARs, resellers and/or distributors.
4. ROYALTY PAYMENTS, REPORTS, AND AUDIT.
4.1 ROYALTY PAYMENTS.
(a) BETWEEN JANUARY 1, 2004, AND SIX-MONTH ANNIVERSARY OF THE
MANUFACTURING RELEASE. If at any time after January 1, 2004,
and before the six-month anniversary of the Manufacturing
Release, RTI, any of its Affiliates or a Reseller sells,
licenses, or distributes a copy of the Retail Pro Software to
any end user who purchases one Inventory with ten (10) or
fewer Seats that is
located within the Restricted Territory, then for each copy of
the Retail Pro Software distributed to any such end user RTI
will pay to Intuit a royalty of seventy-five percent (75%) of
revenues received by RTI from the sale of such copy less
sales, use and excise taxes, amounts credited for retums, and
reasonable shipping charges (if any). Notwithstanding the
foregoing, if RTI reasonably believes or knows that such user
has multiple sites (i.e., is capable of using more than one
Inventory), then RTI will not be obligated to pay the royalty
described in this Section 4.1 (a) with respect to such copy.
If during the period set forth above an end user purchases
more than one Inventory or more than ten (10) Seats, and RTI
knows or should know that such end user has only one retail
sales location or fewer than ten (10) Seats at the time of
such purchase, then the royalty set forth in this Section
4.1(a) will apply.
(b) FROM SIX MONTH ANNIVERSARY OF THE MANUFACTURING RELEASE
THROUGH THIRD ANNIVERSARY OF THE EFFECTIVE DATE. If at any
time after the six month anniversary of the Manufacturing
Release and before the third anniversary of the Effective
7
Date, RTI, any of its Affiliates, or a Reseller sells,
licenses, or distributes a copy of the Retail Pro Software to
any end user who purchases three (3) or fewer Inventories,
none of which have ten (10) or more Seats and all of which are
located in the Restricted Territory, then for each copy of the
Retail Pro Software distributed to any such end user, RTI will
pay to Intuit a royalty of seventy-five percent (75%) of
revenues received by RTI from the sale of such copy less
sales, use and excise taxes, amounts credited for returns, and
reasonable shipping charges (if any). Notwithstanding the
foregoing, if RTI reasonably believes or knows that a user
that purchases three (3) or fewer Inventories has more than
three (3) sites (i.e., is capable of using more than three (3)
Inventories), then RTI will not be obligated to pay the
royalty described in this Section 4.1 (b) with respect to such
copies purchased by such user. If during the period set forth
above an end user purchases more than three Inventories or
more than ten (10) Seats, and RTI knows or should know that
such end user has three or fewer retail sales locations or
fewer than ten (10) Seats at the time of such purchase, then
the royalty set forth in this Section 4.1(b) will apply.
(c) MINIMUM PAYMENT. In the event that any seventy-five
percent (75%) royalty payment payable to Intuit for a given
Inventory of the Retail Pro Software pursuant to this Section
4.1 is less than (i) one thousand dollars ($1,000) for the
"Merchant" edition (and its successor editions) or (ii) seven
hundred and fifty dollars ($750) for the "Shop" edition (and
its successor editions), RTI will pay to Intuit one thousand
dollars ($1,000) for each such Inventory of the merchant
edition and seven hundred and fifty dollars ($750) for each
such Inventory of the shop edition, in lieu of the
seventy-five percent royalty payment set forth above.
4.2 PAYMENT TERMS. Payments will be due and payable within sixty (60)
days of the end of any calendar quarter in which RTI, an Affiliate, or
a Reseller distributes a copy of the Retail Pro Software to an end user
described in Sections 4.1(a) or (b), and will accompany the reports
described in Section 4.3.
4.3 REPORTS AND AUDIT. No later than twenty-one (21) days after the end
of each calendar quarter, RTI will provide to Intuit a report setting
forth for each copy of the Retail Pro Software distributed during that
quarter to an end user by RTI, its Affiliates, or a Reseller: (i) the
number of copies purchased and location of the main copy purchased by
that end user; (ii) for each end user with only one (1) Inventory
within the Restricted Territory, the number of Seats for that end user;
and (iii) the amount charged by RTI to each Reseller or charged by RTI
to the end user where RTI sells directly to such! end user. RTI will
send the reports and any payments due to the Intuit accounts receivable
contact identified in Exhibit A. RTI will collect all data necessary to
provide such reports, and will require its Affiliates and Resellers to
ensure the accuracy of such data collected from them, and will retain
such data for a period of two (2) years from the date of each such
report. Upon ten (10) days' prior written notice and not more than once
in any twelve (12) month period, Intuit will have the right to appoint
an independent auditor to examine such records during RTI's normal
business hours to verify RTI's, its Affiliates, and/or its Resellers'
compliance with Section 2 and this Section 4. In the event that Intuit
learns through any such examination or otherwise that a RTI Affiliate
or a Reseller has distributed the Retail Pro Software and/or the
Enterprise Edition in material breach of Section 2, Intuit will notify
RTI of all such breaches. If Intuit identifies any Reseller that has
committed such material breaches on more than two (2) occasions, at
least one of which occurs after RTI has either notice or knowledge of
the first such violation, then Intuit may, at it's discretion, require
RTI to immediately revoke any right of that Affiliate or Reseller to
distribute the Retail Pro Software and/or the Enterprise Edition. In
the event that Intuit identifies three (3) or more material breaches of
the restrictions set forth in Section 2 during any twelve-month period,
at least one of which occurs after RTI has either notice or knowledge
of at least one (1) such material breach, and such breaches remain
uncured for thirty (30) days after RTI has either notice or knowledge
of such breaches, then Intuit may terminate this Agreement and any and
all licenses granted hereunder; provided that, if any such breach
reasonably requires more than thirty (30) days to cure, and RTI has
begun substantial corrective action to cure the breach within such
thirty (30) day period and diligently pursues such action, such
termination will not be effective unless sixty (60) days have expired
from the date of receipt of notice or knowledge without such corrective
action being completed and the breach remedied. In the event that any
such examination discloses an underpayment of royalties required under
Section 4.1, RTI shall promptly remit the amount of such underpayment
to Intuit. If the underpaid royalties exceeds five percent of the fees
owed, then RTI will also pay the reasonable costs of conducting such
examination.
5. PUBLICITY.
Unless required by law, RTI will not make any public statement, press
release or other announcement relating to the terms of, existence of,
or performance under this Agreement without Intuit's prior written
approval, unless otherwise permitted under the APA.
8
6. CONFIDENTIALITY.
6.1 DEFINITION. "CONFIDENTIAL INFORMATION" means: (i) the source code
for the Retail Pro Software and the Enterprise Edition, and all
Modifications thereto; (ii) any business or technical information of
either party, including but not limited to any information relating to
any benchmark tests or other evaluations, product plans, designs,
costs, product prices and names, finances, marketing plans, business
opportunities, personnel, research, or know-how that is designated in
writing as "confidential" or "proprietary" or that a reasonable person
would recognize as confidential under the circumstances of disclosure;
and (iii) the terms and conditions of this Agreement.
6.2 EXCLUSIONS. Confidential Information will not include any
information that: (i) is now, or later becomes, available in the public
domain without the fault of the receiving party; (ii) is disclosed with
the prior written approval of the disclosing party; (iii) is
independently developed by the receiving party without use of or access
to any Confidential Information, as indicated by the receiving party's
written records; (iv) the receiving party can demonstrate to have had
rightfully in its possession without an obligation of confidentiality
prior to disclosure; or (v) the receiving party rightfully obtains from
a third party who has the right to transfer or disclose it and who
provides it without a confidentiality obligation.
6.3 RESTRICTIONS. Neither party will use any Confidential Information
of the other party except to carry out the purpose of this Agreement.
During the term of the Agreement and for a period of five (5) years
thereafter, each party will maintain the Confidential Information in
confidence and will employ reasonable steps to protect the Confidential
Information from unauthorized or inadvertent disclosure or unauthorized
use, including but not limited to all steps that the receiving party
takes to protect its own information of similar importance that it
considers to be proprietary and trade secret. Neither party will
disclose the other party's Confidential Information to any third person
except as permitted under Section 6.4. Each party will instruct all
such employees in advance that they must abide by the restrictions set
forth in this Agreement, and will require any subcontractors given
access to the Confidential Information to execute written agreements
binding them to these terms.
6.4 LIMITATIONS. Notwithstanding the foregoing restrictions on use and
disclosure of Confidential Information, each party may disclose
Confidential Information (i) to the extent required by a court of
competent jurisdiction or other governmental authority to which it is
subject, or otherwise as required by law, provided that the party
required to make such disclosure notifies the other party and uses
reasonable efforts to obtain confidential treatment of the disclosed
information or a protective order before such disclosure; (ii) on a
"need-to-know" basis to its legal counsel and accountants who are under
an obligation of confidentiality; (iii) to its subcontractors on a
"need to know" basis and solely for purposes of meeting its obligations
under this Agreement provided that such subcontractors agree in writing
to comply with confidentiality obligations and use restrictions
substantially similar to those set forth herein; or (iv) to other
parties that agree in writing to comply with confidentiality
obligations and use restrictions substantially similar to those set
forth herein, provided that the disclosing party obtains the prior
written consent of the non-disclosing party to such disclosure, which
consent will not be unreasonably withheld or delayed.
7. INDEMNIFICATION.
7.1 INDEMNIFICATION BY RTI. RTI will defend, indemnify and hold
harmless Intuit, its Affiliates, and its and their officers, directors,
employees, and Resellers from and against any and all loss, damage,
liabilities, settlement, costs and expenses (including reasonable legal
fees) as incurred, to the extent resulting from any third party claims
arising from (i) any agreement between RTI and any third party
pertaining to the Retail Pro Software, the Enterprise Edition, or the
Tools and Other Software; or (ii) allegations that any Modification
created by or for RTI or an Affiliate of RTI, infringes upon,
misappropriates or violates any Intellectual Property Rights or other
proprietary rights of any third party; or (iii) RTI's, its Affiliate's,
a Reseller of RTI, or its or their sublicensees' exercise of any of the
rights granted by this Agreement. Intuit will provide RTI with prompt
written notice of any such claim and permit RTI to control the defense,
settlement, adjustment or compromise of any such claim. Intuit counsel
may, at Intuit's expense, participate in the defense of any such claim;
provided, however, that if such counsel is necessary because of a
conflict of interest of either RTI or its counsel or because RTI does
not assume control, RTI will bear the expense of such Intuit counsel.
Settlement of any claim described in this Section 7.1 shall be subject
to Intuit's prior consent, which will not be unreasonably withheld. It
will be reasonable for Intuit to withhold consent if (i) the settlement
requires Intuit to pay any amounts not actually indemnified by RTI
hereunder; (ii) the settlement restricts Intuit's ability to utilize,
in any manner, the Retail Pro Software, the Enterprise Edition, the
Private Label Software, or any Modifications.
9
7.2 INDEMNIFICATION BY INTUIT. Intuit will defend, indemnify and hold
harmless RTI, its Affiliates, and its and their officers, directors,
employees, and Resellers from and against any and all loss, damage,
liabilities, settlement, costs and expenses (including reasonable legal
fees) as incurred, to the extent resulting from or arising out of any
third party claim arising from any breach by Intuit of this Agreement.
RTI will provide Intuit with prompt written notice of any such claim
and permit Intuit to control the defense, settlement, adjustment or
compromise of any such claim. RTI counsel may, at RTI's expense,
participate in the defense of any such claim; provided, however, that
if such counsel is necessary because of a conflict of interest of
either Intuit or its counsel or because Intuit does not assume control,
Intuit will bear the expense of such RTI counsel.
8. WARRANTY DISCLAIMER.
THE RETAIL PRO SOFTWARE, ENTER RISE EDITION, AND MODIFICATIONS ARE
PROVIDED BY INTUIT "AS IS." INTUIT DISCLAIMS ALL WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFR1NGEMENT, SECURITY AND WARRANTIES ARIS1NG OUT OF COURSE OF
DEALING OR USAGE OF TRADE. INTUIT DOES NOT WARRANT THAT THE RETAIL PRO
SOFTWARE, ENTERPRISE EDITION, OR TOOLS AND OTHER SOFTWARE WILL MEET
RTI'S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, OR WILL BE ERROR
FREE. RTI ACKNOWLEDGES AND AGREES THAT INTUIT WILL NOT PROVIDE ANY
MODIFICATIONS DEVELOPED BY OR FOR INTUIT TO RTI, ITS AFFILIATES, OR ITS
OR THEIR RESELLERS.
9. LIMITATION ON LIABILITY.
EXCEPT FOR THE INDEMNIFICATION IN SECTION 7 AND/OR MATERIAL BREACH BY
RTI, AN AFFILIATE, OR A RESELLER OF THE LICENSE RESTRICTIONS IN
SECTIONS 2.2, 2.3, OR 2.4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER OR TO ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR 114
CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE
RETAIL PRO SOFTWARE OR ENTERPRISE EDITION OR FOR ANY ERROR OR DEFECT IN
THE RETAIL PRO SOFTWARE OR ENTERPRISE EDITION OR ANY SUPPORT, WHETHER
SUCH LIABILITY ARISES FROM A CLAIM BASED UPON CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR
NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND
APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND
TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10. TERM AND TERMINATION.
10.1 TERM. This Agreement will commence upon the Effective Date and
continue until terminated in accordance with Sections 4.3, 10.2, or
10.3.
10.2 TERMINATION FOR BREACH. Either party may terminate this Agreement
and/or the exclusivity granted in Section 3 due to material breach of
this Agreement by the other party if such breach remains uncured for
thirty (30) days following written notice to the breaching party by the
non-breaching party; provided that, if the breach reasonably requires
more than thirty (30) days to cure (excluding any failure to pay
money), and the breaching party has begun substantial corrective action
to cure the breach within such thirty (30) day period and diligently
pursues such action, such termination will not be effective unless
sixty (60) days have expired from the date of receipt of notice without
such corrective action being completed and the breach remedied. Without
limiting the generality of the foregoing, the parties acknowledge and
agree that one method RTI may employ to cure a material breach by an
Affiliate, a Reseller or sublicensee of RTI is for RTI to promptly
terminate or revoke the rights granted to such breaching Affiliate,
Reseller or sublicensee upon RTI's knowledge of such breach. Such
remedy will be exercisable in RTI's sole discretion, except in the
event that (i) Intuit directs such termination or revocation in
accordance with Section 4.3; or (ii) such termination or revocation is
the only reasonable cure.
10
10.3 TERMINATION FOR CHANGE OF CONTROL. Intuit may terminate this
Agreement and/or the exclusivity granted in Section 3 in the event of a
Change of Control (as defined below) of RTI or any assignee or
successor of RTI. A "Change of Control of RTI" means that an Intuit
Competitor acquires either (i) fifty percent (50%) or more of the
assets or voting see unties of RTI; (ii) the right to direct or control
the decisions of RTI's board of directors and/or its day to day
operations.
10.4 EFFECT OF TERMINATION; RETURN OF RETAIL PRO SOFTWARE AND
ENTERPRISE EDITION. In the event Intuit terminates this Agreement in
accordance with Sections 4.3, 10.2, or 10.3, the rights and licenses
granted to RTI under this Agreement will automatically terminate.
Within five (5) days after any such termination of this Agreement, RTI
will, at its expense, ship to Intuit or destroy (including purging from
any system or storage media) all copies of the Retail Pro Software,
Enterprise Edition, Modifications, and any Confidential Information of
Intuit in RTI's possession or control, and an officer of RTI will
certify in writing to Intuit that all such copies and Confidential
Information have been returned to Intuit or destroyed. In addition,
within five (5) days after any termination or expiration of this
Agreement, each party will, at its expense, ship to the other party or
destroy (including purging from any system or storage media) any
Confidential Information of the other party in such party's possession
or control, and an officer of such party will certify in writing to the
other party that all such copies and Confidential Information have been
returned to the other party or destroyed.
10.5 SURVIVAL. The provisions of Sections 1, 2 (for the periods
specified in Section 2, unless earlier terminated in accordance with
Sections 4.3, 10.2 or 10.3), 3, 5, 6 (to the extent provided therein),
7, 8, 9, 10.4, 10.5, and 11 will survive any termination or expiration
of this Agreement.
11. GENERAL PROVISIONS.
11.1 COMPLIANCE WITH LAWS. Each party will comply with all U.S. laws
and regulations applicable to its activities under this Agreement.
Without limiting the foregoing, RTI will: (i) comply with all Xxxxxx
Xxxxxx Xxxxxxxxxx xx Xxxxxxxx, Xxxxxx Xxxxxx Department of the Treasury
and other United States export controls with respect to the subject
matter hereof; and (ii) not produce or distribute any Retail Pro
Software, Enterprise Edition, Modifications, or other products or
technical data in any country where such production or distribution
would be unlawful.
11.2 ASSIGNMENT. Intuit may freely assign this Agreement in whole or in
part; provided that Intuit's obligations set forth in Section 3 will
apply to each assignee. Except as explicitly set forth in this
Agreement, RTI may not assign this Agreement or sublicense any rights
granted hereunder, in whole or in part, without Intuit's prior written
consent. Any attempt by RTI to assign this Agreement other than as
permitted in this Section 11.2 will be null and void. Subject to the
foregoing, this Agreement will be binding upon and will inure to the
benefit of both parties, their successors and permitted assigns.
Without limiting the generality of the foregoing, Intuit's obligations
set forth in Section 3 will apply to and inure to the benefit of any
assignee or acquiror to which RTI has assigned any of its rights and
obligations pursuant to this Section 11.2, subject to such assignee's
or acquiror's compliance with the terms and conditions of this
Agreement. RTI will have the following rights to assign the rights and
obligations set forth in this Agreement:
(a) ENTERPRISE EDITION. RTI may assign all rights and
obligations set forth in this Agreement with respect to the
Enterprise Edition, including without limitation the rights
set forth in Sections 2.2(a)(ii), 2.4, and 3 to a third party,
provided that: (i) the assignee acquires and agrees in writing
to abide by all of the rights, obligations, and restrictions
set forth in this Agreement with respect to the Enterprise
Edition, (ii) RTI does not retain for itself or any third
party any rights in or to the source or object code for the
Enterprise Edition; and (iii) the third party assignee is not
an Intuit Competitor.
(b) ENTIRE AGREEMENT. In the event of a sale of all or
substantial all of RTI's assets or voting securities in which
the acquiror obtains the rights and obligations set forth
herein with respect to the Enterprise Edition, RTI may assign
all rights and obligations set forth in this Agreement as a
whole to such acquiror, provided that (i) the acquiror
acquires and agrees in writing to abide by all of the rights,
obligations, and restrictions set forth in this Agreement,
(ii) RTI does not retain for itself or any third party any
rights or obligations set forth in this Agreement; and (iii)
the acquiror is not an Intuit Competitor.
11
11.3 LAW AND JURISDICTION. This Agreement will be governed by and
construed in accordance with the laws of the State of California,
U.S.A., except for its conflicts of laws principles. The parties
consent to the exclusive jurisdiction of and venue in the state and
federal courts in Santa Xxxxx County, California.
11.4 NOTICES. Notices pursuant to this Agreement will be provided in
accordance with EXHIBIT A.
11.5 NO AGENCY. The parties are independent contractors and neither
will have power or authority to assume or create any obligation or
responsibility on behalf of the other. This Agreement will not be
construed to create or imply any partnership, agency or joint venture.
11.6 FORCE MAIEURE. Any delay in or failure of performance by a party
of its obligations under this Agreement will not be considered a breach
of this Agreement and will be excused to the extent such delay or
failure of performance is caused by any occurrence beyond the
reasonable control of such party, which occurrences may include, but
are not limited to, acts of God, failures of the Internet, blackouts,
brownouts, war, riot or labor strikes, and similar events.
11.7 SEVERABILITY. If any provision of this Agreement is found illegal
or unenforceable, it will be enforced to the maximum extent
permissible, and the legality and enforceability of the other
provisions of this Agreement will not be affected.
11.8 NON-EXCLUSIVE REMEDIES. The exercise by either party of any remedy
under this Agreement will be without prejudice to its other remedies
under this Agreement or otherwise.
11.9 EQUITABLE RELIEF. Each party acknowledges that a breach by the
other party of Section 6 (Confidentiality) of this Agreement may cause
the non-breaching party irreparable harm, for which the award of
damages would not be adequate compensation. Consequently, the
non-breaching party may institute an action to enjoin the breaching
party from any and all acts in violation of Section 6
(Confidentiality), which remedy will be cumulative and not exclusive,
and a party may obtain an injunction enjoining any breach or threatened
breach of those provisions without having to prove that damages would
not be adequate compensation, or that actual damages, in fact, exist,
which rights will be in addition to any other relief to which the
non-breaching party may be entitled at law or in equity.
11.10 ENTIRE AGREEMENT. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter, other than the APA.
This Agreement may only be modified, or any rights under it waived, by
a written document executed by both parties.
11.11 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
sole and exclusive benefit of the signatories and is not intended to
benefit any third party. Only the parties to this Agreement may enforce
it.
11.12 USE OF THIRD PARTIES. Each party may use consultants and other
contractors in connection with the performance of obligations and
exercise of rights under this Agreement, provided that such consultants
and contractors will be subject to the same obligations as the party
that engages them.
11.13 COUNTERPARTS. This Agreement may be executed in counterparts,
each of will constitute an original, and all of which will constitute
one agreement.
11.14 HEADINGS. The headings in this Agreement are for the convenience
of reference only and have no legal effect
The parties have executed this Agreement through their duly authorized
representatives as of the Effective Date.
12
INTUIT INC. RETAIL TECHNOLOGIES INTERNATIONAL
By: ____________________________ By:______________________________
Print Name: ____________________ Print Name: _____________________
Title: _________________________ Title: __________________________
EXHIBITS:
---------
A: Notices
B: Reseller Agreement
C. End User License Restrictions
D. Source Code Security Requirements
E. Maintenance and Support
F. Tools and Other Software
13
EXHIBIT A
---------
NOTICES
-------
Unless otherwise stated, all notices required under this Agreement will be in
writing and will be considered given (i) when delivered personally, (ii) five
(5) days after mailing, when sent certified, registered or express mail, return
receipt requested and postage prepaid, (iii) one (1) business day after
dispatch, when sent via a commercial overnight carrier, fees prepaid, or (iv)
upon delivery when sent by facsimile transmission confirmed by first class mail.
All such notices will be addressed to RTI or Intuit as specified in the
applicable Legal Notices box (unless changed by notice):
RTI CONTACT INFORMATION: RTI will notify Intuit in writing of any changes:
BUSINESS CONTACT/RELATIONSHIP MAINTENANCE AND ACCOUNTS RECEIVABLE AND
MANAGER SUPPORT REPORTING LEGAL NOTICES
-------------------------------------------------------------------------------------------------------------
Address: Address: Address: Address:
-------- -------- -------- --------
Intuit Inc., Intuit Inc. Intuit Inc., Intuit Inc.,
0000 Xxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx, 0000 Xxxxxx Avenue, 0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Name: Xxx Xxxxx Name: Xxxxxxxxx Xxxxxx Name: Xxxx Xxxxxxxx Attn: Legal Department
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
Intuit CONTACT INFORMATION: intuit will notify RTI in writing of any chances:
A-1
BUSINESSCONTACT/
RELATIONSHIP MANAGER CUSTOMER SERVICE LEGAL NOTICES
--------------------------------------------------------------------------------
Address: ADDRESS: ADDRESS:
-------- -------- --------
Retail Technologies Retail Technologies Retail Technologies
International International International
0000 Xxxxxxxxx Xxx. 0000 Xxxxxxxxx Xxx. 000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxx Atm: Xxxxxxxx & Xxxxxxxx LLP
Phone: 000 000-0000 Phone: 916483-1656 Phone: (000) 000-0000
Fax: 000 000-0000 Fax: 000 000-0000 Fax:(000)000-0000
A-2
EXHIBIT B
---------
RESELLER AGREEMENT
------------------
Each Reseller Agreement will provide at a minimum that:
(i) The Reseller will not sell, license, distribute, or otherwise
provide the Retail Pro Software to anyone other than Existing RTI
Customers after December 31, 2005 unless otherwise approved by Intuit;
(ii) The Reseller will not sell, license, distribute, or otherwise
provide the Retail Pro Software to anyone after December 31, 2006
unless otherwise approved by Intuit;
(iii) The Reseller will not sell, license, distribute, or otherwise
provide the Enterprise Edition to customers that purchase three (3) or
fewer Inventories, at least one of which is in the Restricted
Territory, or customers within the Restricted Territory that have three
(3) or fewer retail sales locations; provided, however, that the
Reseller may sell, license, distribute or otherwise provide the
Enterprise Edition to a customer that purchases any single Inventory
with more than ten (10) Seats, and any customer that has one (1) retail
sales location with more than ten (10) Seats, and if Intuit notifies
RTI of its election to extend in accordance with Section 2.9, then
after such notice the Reseller cannot sell the Enterprise Edition to
any company within the Restricted Territory other than (i) customers
that purchase at least six (6) Inventories or one Inventory with more
than ten (10) Seats, (ii) companies with at least six (6) retail sales
locations, (iii) companies with a single retail sales location with
more than ten (10) Seats, and (iv) potential customers that have either
six (6) or more retail sales locations or a single retail sales
location with more than ten (10) Seats.
(iv) The Reseller will not sell, license, distribute, or otherwise
provide the Retail Pro Software, Enterprise Edition, or Tools or Other
Software except pursuant to an end user license agreement that meets
the requirements of Exhibit C;
(v) All right title, and interest in and to the Retail Pro Software,
Enterprise Edition, and Tools or Other Software are the property of
Intuit, and the Reseller obtains no rights in or to the foregoing
except the limited right to resell and distribute granted in the
Reseller Agreement;
(vi) Any and all modifications and/or Derivative Technologies of the
Retail Pro Software, Enterprise Edition, and Tools and Other Software
created by or for the Reseller will be owned by Intuit;
(vii) The Reseller acknowledges and agrees that Intuit is a third party
beneficiary to the Reseller Agreement for purposes of enforcing
Intuit's rights.
X-0
XXXXXXX X
---------
XXX USER LICENSE TERMS
----------------------
All End User License Agreements for the Retail Pro Software and Enterprise
Edition will include at least the following restrictions:
(1) The end user is prohibited from using the software for application
development purposes or otherwise outside the scope of the license
granted in Section 2.3 of this Agreement.
(2) The end user shall be prohibited from sublicensing, timesharing,
rental, facility management, or service bureau usage of the software.
(3) RTI and its licensors retain all right, title, and interest to the
software.
(4) RTI and its licensors shall not be responsible for any indirect,
incidental, or consequential damages or lost profits.
(5) Only object code versions of the software are licensed to the end
user and reverse engineering, disassembly or decompilation to derive
source code shall be prohibited (except to the extent expressly allowed
under applicable law).
(6) The end user must agree to comply with all export and re-export
restrictions and regulations ("EXPORT RESTRICTIONS") imposed by the
government of the United States. If any license is provided to U.S.
government licensee use, duplication or disclosure of the software and
documentation by the U.S. Government shall be provided subject to terms
and conditions consistent with these restrictions and any applicable
FAR provisions, for example, FAR 52.227-19.
(7) The software contains proprietary and confidential information of
Intuit and its licensors. The end user will agree to maintain the
software in confidence and shall use a reasonable degree of care to
protect the confidentiality of the software. The end user shall not
remove the proprietary rights notices in the software.
C-1
EXHIBIT D
---------
SOURCE CODE SECURITY RESTRICTIONS
---------------------------------
FOR PURPOSES OF THIS EXHIBIT D, "RTI" will include RTI, its Affiliates, and its
and their subcontractors who are GIVEN ACCESS TO THE source code in accordance
with this Agreement.
RTI's use of the source code is subject to the following conditions:
AUTHORIZED EMPLOYEES. RTI may only grant access to source code or to the minimum
number of its employees required to exercise RTI's rights under this Agreement
("AUTHORIZED EMPLOYEES").
NEED-TO-KNOW. Authorized Employees must have a need-to-know to access source
code.
CONFIDENTIALITY. Authorized Employees must execute a confidentiality agreement
containing terms at least as strict as the confidentiality terms in this
Agreement prior to accessing the source code.
RTI OVERSIGHT OF AUTHORIZED EMPLOYEES. RTI must cause Authorized Employees to
strictly abide by their obligations under this Agreement. RTJ must use the same
efforts to protect the confidentiality obligations of each Authorized Employee
after the termination of his/her employment as RTI uses to enforce its own
confidential information. RTI will not, however, use less than reasonable
efforts in such enforcement. In any claim or legal action by Intuit regarding a
former Authorized Employee's obligations under this Exhibit D, RTI will, at its
own expense, provide Intuit with all reasonable assistance and cooperation.
SOURCE CODE USE ON ACCESS CONTROLLED COMPUTERS. Source code must be used only on
secure, access controlled computers. All coding, debugging, compiling, and
related activities must be conducted entirely on secure, access controlled
computers. Without limiting the generality of the foregoing, RTI will use VPN
technology and take such other steps that it takes to protect its most valued
and protected Confidential Information when accessing and using the source code
via remote computers.
SOURCE CODE STORAGE. RTI must store source code only on its original media.
Source code must be completely and permanently deleted from any computer and
stored in a locked, secured location at the RTI site when not in use.
USE OF ENCRYPTION TECHNOLOGY. Source code may only be transferred electronically
upon Intuit's written permission. If source code is transferred electronically,
RTI must encrypt all such transmissions using a standard designated or agreed to
by Intuit.
BACKUP AND ARCHIVAL COPIES. RTI may make backup copies of the source code
provided such backup copies are stored only on external storage media kept
within a secured location at an RTI site. RTI may not make archive copies of the
source code.
ASSOCIATED INFORMATION. All associated information (minutes from meetings,
engineering notebooks, etc.) containing source code must be treated in the same
manner as source code. Logs. RTI will maintain a paper or electronic log of all
access to the source code. The log must, at minimum, include the names of
individuals who access the source code and the dates and times of such access.
Such logs will be made available to Intuit upon Intuit's request.
CONTROLLED PASSWORDS. Access to the source code on the computer systems
described above must be password controlled. Authorized Employees must have a
unique, non-trivial, non-obvious password that is changed at least every thirty
(30) days.
D-1
SECURITY AT SOURCE CODE SITES. The source code and the computers on which source
code are used must be located at RTI controlled sites or sites designated by RTI
subject to Intuit's prior approval, which will not be unreasonably withheld. The
sites must be secure with access restricted to Authorized Employees. All entries
and exits to the sites must be logged.
CLEAN DESK POLICY. Authorized Employees must adhere to a "clean desk" policy at
their facilities at the sites. "Clean desk" policy means all source code and
Intuit Confidential Information must be stored in a secured location when not in
use.
NOTIFICATION. RTI agrees to notify Intuit promptly in the event of any breach of
the restrictions set forth in this Exhibit D.
D-2
EXHIBIT E
---------
MAINTENANCE AND SUPPORT
-----------------------
1. DEFINITIONS
"ERROR" means a defect, or combination of defects, in the Retail Pro Software
that result in a failure of the Retail Pro Software when used in accordance with
the applicable documentation and specifications. For any alleged defect to be an
"Error" hereunder, RTI must provide to Intuit a copy of the defect and all data
and documentation pertaining to the defect, in electronic format, as reasonably
required in order for Intuit to reproduce and efficiently correct the alleged
defect. At Intuit's request, one or more RTI technicians will come to Intuit's
place of business in order to assist in reproducing any alleged defects. If
Intuit reasonably concludes that an alleged defect does not constitute a
material error or flaw in the coding of the Retail Pro Software, such alleged
defect will not be treated as an Error. Subject to the foregoing, once an
alleged defect is clearly defmed and reproducible, it will be will be classified
as follows:
PRIORITY 1 ERROR: The Error (i) renders the Retail Pro Software inoperative or
causes a complete failure of the Retail Pro Software for multiple individual end
users; or (ii) affects the performance of the Retail Pro Software, or restricts
RTI's use of the Retail Pro Software (for example, important Retail Pro Software
features are unavailable with no acceptable workaround) for multiple individual
end users.
PRIORITY 2 ERROR: The Error (i) renders the Retail Pro Software inoperative or
causes a complete failure of the Retail Pro Software for an individual end user;
(ii) affects the performance of the Retail Pro Software, or restricts RTI's use
of the Retail Pro Software (for example, important Retail Pro Software features
are unavailable with no acceptable workaround) for an individual end user; or
(iii) causes only a minor impact on RTI's use (either for an individual or
multiple end user(s)) of the Retail Pro Software.
"ERROR CORRECTION" means a bug fix, patch, or other modification or addition
that, when made or added to the Retail Pro Software, corrects an Error.
"SUPPORT SERVICES" means the support and maintenance services provided by Intuit
to RTI pursuant to this Exhibit, as further described herein.
2. SUPPORT RESPONSIBILITY
2.1 ERROR REPORTING. From the Effective Date through the four-month anniversary
of the Effective Date, Intuit will use commercially reasonable efforts to
provide RTI with (i) any Error Corrections if, as, and when Intuit makes any
such Error Corrections available to any of its end user customers receiving
maintenance and support services from Intuit, (ii) reasonable telephone, fax and
e-mail support to RTI during RTI's normal business hours (including, without
limitation, answering technical questions related to the Retail Pro Software
functionality regardless of whether an Error exists), and (iii) the support
services described in Section 2.2(a). From the four-month anniversary of the
Effective Date through the second year anniversary thereof, Intuit will use
commercially reasonable efforts to provide (i) reasonable e-mail support to RTI
during RTI's normal business hours (including, without limitation, answering
technical questions by email related to the Retail Pro Software functionality
regardless of whether an Error exists), and (ii) the support services described
in Section 2.2(b). Intuit will provide RTI with the applicable level of Support
Services consistent with the severity of the Error in accordance with the
response times and other terms set forth herein, and in a professional and
workmanlike manner consistent with industry standards.
2.2 EFFORTS REQUIRED.
A. SUPPORT SERVICES THROUGH FOUR-MONTH ANNIVERSARY.
(i) PRIORITY 1 ERROR. From the Effective Date through the
four-month anniversary of the Effective Date, in the event of
a Priority I Error, Intuit will, within one (1) business day
of notification, commence work on resolving the Error in
accordance with Section 2.1. Intuit will use commercially
reasonable efforts to provide an Error Correction within ten
(10) business days of such notification. Intuit will provide
RTI with periodic reports (no less frequently than once each
business day) on the status of the Error Correction.
E-1
(ii) PRIORITY 2 ERROR. From the Effective Date through the
four-month anniversary of the Effective Date, in the event of
a Priority 2 Error, Intuit will, within five (5) business days
of notification, commence work on resolving the Error in
accordance with Section 2.1. Intuit will use commercially
reasonable efforts to provide an Error Correction within
twenty (20) business days of RTI's notification. Intuit will
provide RTI with periodic reports (no less frequently than
every two (2) business days) on the status of the Error
Correction.
B. SUPPORT SERVICES AFTER THE FOUR-MONTH ANNIVERSARY AND THROUGH
TWO-YEAR ANNIVERSARY.
(i) PRIORITY 1 ERROR. After the four-month anniversary of the
Effective Date and through the two-year anniversary of the
Effective Date, in the event of a Priority 1 Error, Intuit
will, within one (1) business day of notification, use
commercially reasonable efforts to assist RTI on resolving the
Error in accordance with Section 2.1. Such assistance will
include, without limitation, providing technical guidance and
telephone support, answering questions regarding Retail Pro
Software functionality, and making available appropriate
technical personnel at Intuit's place of business during RTI's
business hours.
(ii) PRIORITY 2 ERROR. After the four-month anniversary of the
Effective Date and through the two-year anniversary of the
Effective Date, in the event of a Priority 2 Error, Intuit
will, within five (5) days of notification, use commercially
reasonable efforts to assist RTI on resolving the Error in
accordance with Section 2.1. Such assistance will include,
without limitation, providing technical guidance and telephone
support, answering questions regarding Retail Pro Software
functionality, and making available appropriate technical
personnel at Intuit's place of business during RTI's business
hours.
3. PAYMENTS: CREDITS
The Support Services provided by Intuit pursuant to Section 2.2(a) will
be provided at no charge to RTI up to two hundred (200) total man-hours
per month (e.g., six (6) engineers at twenty percent (20%) usage). Any
hours provided beyond two hundred (200) total man-hours in any month
will be billed to RTI at one hundred dollars ($100) per man-hour.
The Support Services provided by Intuit pursuant to Section 2.2(b) will
be provided at no charge to RTI up to one hundred (100) total man-hours
per month (e.g., six (6) engineers at ten percent (10%) usage). Any
hours provided beyond one hundred (100) total man-hours in any month
will be billed to RTI at one hundred fifty dollars ($150) per man-hour.
Payments will be due and payable within sixty (60) days of the end of
any calendar quarter in which RTI is provided man-hours beyond the two
hundred (200) or one hundred (100) man-hour cap, as the case may be.
The hour thresholds set forth above are solely for purposes of
determining when payments would become due, and do not indicate that
Intuit will necessarily provide any given number of hours of support
specified in this Section 3.
If Intuit fails to resolve an Error with an Error Correction or provide
assistance to RTI within the applicable timeframes as set forth in
Sections 2.2(a) and 2.2(b), respectively, RTI's sole remedy will be to
obtain a credit on its next quarterly service fee invoice equal to the
number of man-hours exceeding the applicable timeframe. Such credit
will not apply to the extent such failure to resolve or provide
assistance is due to (i) reasons of force majeure (as set forth in
Section 1L6), (ii) changed, modified, or damaged Retail Pro Software,
except where altered or modified (x) by Intuit in accordance with the
applicable documentation, or (y) at Intuit's direction, or (iii) RTI's
negligence.
4. LIMITATION ON SCOPE OF SUPPORT SERVICES
Notwithstanding anything to the contrary in this Exhibit E, Intuit's
support obligations hereunder, including without limitation its
obligations to provide Error Corrections, will be limited to support
and Error Corrections for those parts of Version 8 of the Retail Pro
Software that were created by personnel who left their employment with
RTI to become employees of Intuit after the Effective Date. Intuit will
have no obligation to support earlier versions of the Retail Pro
Software, or any Modifications made by or for RTI (other than the two
features, multi-vendor and serial number tracking, that Intuit has
separately agreed to provide to RTI, which Intuit will support in
E-2
accordance with this Exhibit E unless otherwise agreed). In addition,
Intuit will not have any support obligations with respect to
non-material Errors, such as misspellings, and Intuit will not have any
support obligations with respect to manual or help documentation,
screen designs, report designs, document or tag designs, HTML or the
installation program. In the event that the parties separately agree
that Intuit will provide other Modifications to RTI, then Intuit will
also support such other modifications in accordance with this Exhibit
E, unless otherwise agreed.
E-3
EXHIBIT F
---------
TOOLS AND OTHER SOFTWARE
------------------------
PROJ DB BRANCH SUB BRANCH DESCRIPTION
------- ------ ---------- -----------
Custom Auto FC Change * Niagra parks customization to change given in FC
Custom Casino Gaming Link * Casablanca customization to allow clients to use
purchasing points in the casino
Custom CMSComp * MS and RPRO comparison used for Xxx Xxxxxx
testing
Custom Emp Purch Limit Utility * Limits employee purchases in specified
departments
Custom GCSC Client * Giucci Gift Cert and SC mod based off of RBA
Custom Xxxxxx P0 * Custom P0
Custom HIS PMS Link * Property management link
Custom LVNA Cust Merge * Detects and merges duplicate Customers
Custom Max Global Disc Utility * Global Disc Amount and reason for Xxxxxx Garden
Center
Custom PO Generator * Po Generator for Cycle Gear
Custom P02S0 * Creates SOs from POs and ASNs from
Invoices
Custom Prada Taiwan Invoice * Special Taiwan invoice
Custom Presets * Presets program
Custom Reorder SO Items Utility * Utility used to reorder SO items
Custom RPRO WS Export * Workstation Export
Custom PRO WS ImpExp * Workstation ImporflExport
Custom RTI Customer Loyalty * Customer Loyalty setup
Custom SPO Client * Cyc1e Gear special order
Custom SiP0 Clienta * Cycle Gear special order
Custom SPO Purge * Cycle Gear special order
Custom SPOServer * Cycle Gear special order
F-1
PROJ DB BRANCH SUB BRANCH DESCRIPTION
------- ------ ---------- -----------
Custom Xxxxxxxx-Xxxxxx PMS Link * Property management link
Custom STS Export * Export to STS for Gucci
Custom TRZConverter * Converts tax by ZIP code file to a comma
delimited and Customized file
Custom OTB Link `* Link to ANT Buyers Toolbox
Palm * * Palm Code
Personal * * Personal VSS directories for individual
programmer use (used to store transitional Work)
Prog_D5 Pjt Demos Demonstration project showing how to work with
Appshell and RPRo API
Prog_D5 Pjt MRS Custom marketing report
Prog_D5 Pjt ProcInSnapShot Custom tool used by Xxx Xxxxxx
Prog_D5 Pjt SDB Support Database
Prog_D5 Pjt Tools>DealAuth Program distributed to BPs to write kill dates
to user keys
Prog D5 Pjt Tools>DemoKey Tool to create demo hasp keys
Prog D5 Pjt Tools>KeySet Internal tool to write the user ID to a key
Prog D5 Pjt Tools>WinPass Intemal tool to generate temporary licensing
)verrldes
Prog D5 Pjt UMS BOS
Prog D5 Pjt V7>TagPrint Prada tag print tool
Prog D5 Tools Cfg_of Vss related tools
`Prog D5 Tools Ext Vss related tools
Prog D5 Tools FindReplace Vss related tools
Prog D5 Tools QuietDel Vss related tools
Resources * * Database used to store program icons and Bmps
(only for a few projects) as well as MSDN
information
Template * * * Template used to create new databases
Writer * * * Database used by tech writers to store help lies
F-2
