License Agreement for Computer Programs - Manhattan Associates LLC
LICENSE AGREEMENT
for
COMPUTER PROGRAMS
AGREEMENT made this _____day of _______________, 1997 by and between Manhattan
Associates, LLC ("LICENSOR"), and ______________________________with its
principal place of business located at _______________________________________
_____________________________________________ ("LICENSEE").
WITNESSETH:
----------
BACKGROUND: LICENSOR is the owner of certain proprietary technical information
consisting of computer source programs and object code useful in performing
various business functions on a computer system, as described on Schedule "A"
hereto ("Programs"). LICENSEE is desirous of acquiring a non-exclusive license
to use the programs on one machine or a network of machines per site, under the
terms and conditions set forth hereinafter. The term "Machine" means the
individual specific machine specified in writing by LICENSEE to LICENSOR from
time to time, on which LICENSEE will use the Programs. The term "site" shall
mean the physical location where the distribution process is being performed.
NOW THEREFORE, in consideration of the background, the covenants herein
contained and intending to be legally bound hereby, the parties agree as
follows:
1. NON-EXCLUSIVE, NON-TRANSFERABLE LICENSE. LICENSOR hereby grants to LICENSEE
and LICENSEE hereby accepts from LICENSOR a non-exclusive license to use the
Programs (including source codes except security source codes) selected and
described in Schedule "A" at the site(s) described in Schedule "B", and LICENSEE
shall have no rights to assign or transfer its rights in such license to any
person or entity; provided, however, that LICENSEE may assign all its rights in
the license hereby granted to a subsidiary in which it owns a majority interest,
or to a purchaser of substantially all of the business and assets of LICENSEE on
the condition LICENSEE retains no rights to use the Programs and that such
subsidiary or purchaser agrees to be bound by the terms hereof as if it had
executed this Agreement as LICENSEE (such subsidiary or purchaser is hereinafter
referred to as a "Permitted Assignee"). Absent the express written consent of
LICENSOR, such an assignment by LICENSEE of its rights in the license to a
Permitted Assignee shall not release LICENSEE of its obligations and
responsibilities hereunder and any assignment permitted hereunder shall in no
event release LICENSEE of its confidentiality obligations hereunder. Permitted
Assignee is not permitted to relocate, transfer or otherwise use the Programs,
to a site other than those sites originally licensed by LICENSEE. Subject to
Paragraph two, LICENSEE only and not a Permitted Assignee may under the license
granted herein use Programs in connection with any existing or new computer
equipment at licensed sites if LICENSEE notifies LICENSOR of such replacement
prior thereto. No other uses are granted hereunder. All site transfers are
prohibited. LICENSEE may not use the Programs to provide data processing or
management information or services to any third party. LICENSEE further agrees
to notify LICENSOR within thirty (30) days of any change of any sites.
2. LICENSE FEE. The license fee and payment schedule shall be in accordance
with Schedule "C" for the Pickticket Management System (referred to as PkMS)
Programs selected by the LICENSEE shall be as described in Schedule "A" (and
attached addendum(s) if any) for any machine or network of machines at the
site(s) detailed in Schedule "B". Any out of pocket expenses incurred by
LICENSOR in connection with said project will be reimbursed by LICENSEE under
the terms of the Authorization for Consulting Services
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Agreement herein attached and made a part of this Agreement. Invoices will be
submitted by LICENSOR every two (2) weeks.
3. ENHANCEMENTS. Any enhancements, modifications, or substitutions to the
Programs made by LICENSEE are to be owned by LICENSOR and may not be sold,
assigned, licensed, sublicensed or otherwise transferred by LICENSEE except in
connection with an assignment of all rights to the Programs to a Permitted
Assignee (as defined paragraph 1 hereof). LICENSOR makes no warranty with
respect to such enhancements, modifications or substitutions and shall have no
responsibility or liability whatsoever with respect to any enhancements,
modifications, or substitutions to the Programs made by or at the direction of
LICENSEE and all such enhancements, modifications or substitutions shall, if
made, be made at the sole risk and expense of the LICENSEE.
4. WARRANTIES. LICENSEE acknowledges that the Programs have been adequately
described to LICENSEE and that no claims may be asserted against LICENSOR on the
basis that the Programs are in any manner unsatisfactory except to the extent
expressly provided below. The only warranties provided hereunder by LICENSOR are
as follows: that the Programs substantially provide the functions listed on
Schedule "A" hereto and that the Programs are the property of the LICENSOR and
LICENSOR has the power to grant the license hereunder. Otherwise the Programs
are licensed "AS IS." This Warranty is for a period of One Hundred and Eighty
(180) days after the date hereof. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE.
5. DAMAGES. LICENSOR'S liability hereunder for damages arising out of
LICENSOR'S inability to correct any failure of the Programs to substantially
provide the functions set forth on Schedule "A" hereto as set forth in paragraph
4 of this Agreement shall be limited to the fees that LICENSEE has paid for the
Program and/or service that failed to substantially provide such functions.
LICENSOR is not liable for lost profits, consequential, indirect or special
damages, or for any claim or demand against LICENSEE by any third party. No
action, other than actions pursuant to paragraphs 6 and 8 below, regardless of
form, arising out of the transactions under this Agreement, may be brought by
LICENSEE more than ninety (90) days after the date of first commercial use of
the Programs by LICENSEE. In no event shall LICENSOR be liable for any claim
based upon LICENSEE'S use of any third party software or otherwise, whether or
not such software was obtained from LICENSOR.
6. CONFIDENTIALITY. LICENSEE acknowledges that LICENSEE'S right to the
Programs is strictly limited to the license hereunder to use the Programs and
the LICENSOR'S ownership of the Programs is a valuable property right. LICENSEE
will not provide, disclose or otherwise make available the Programs or any part
thereof or any related materials and information, in any form to any person,
firm or other entity, will keep the Programs and all related materials and
information confidential and will protect LICENSOR'S property rights therein.
Except for "back-up" duplicate copies, which will be LICENSOR'S property,
LICENSEE will not make any duplicate copy of the Programs or any part thereof.
If LICENSEE breaches any term hereof the license hereunder will immediately
terminate, the license fee will be forfeited and LICENSEE must immediately
return all copies of the Programs to the LICENSOR. LICENSEE agrees to inform
each of its employees of the confidential nature of the Programs and all related
materials and information and will use efforts to protect the confidentiality of
the Programs at least commensurate with those employed by LICENSEE for the
protection of LICENSEE'S own confidential information. References in this
paragraph 6 to Programs include any additions to, modifications to, or
substitutions for the Programs, or any part thereof.
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7. NON-INTERFERENCE. LICENSEE will not interfere with LICENSOR'S business
particularly LICENSOR'S granting of other licenses for the Programs.
8. ENTICEMENT OF EMPLOYEES. Neither LICENSEE nor LICENSOR shall solicit or
hire any of the other's employees (direct or indirect), former employees,
employees of affiliated companies, or agents assigned through contracted means
for the purpose of employment or independent consulting without the other
party's prior written consent, within thirty-six (36) months of the last date of
employment of such person by the other.
LICENSEE and LICENSOR acknowledge and agree that, by virtue of the nature of the
services to be performed by LICENSOR pursuant to this Agreement, LICENSOR will
have access to and special knowledge of LICENSEE'S business affairs and
customers, and LICENSEE will have access to and special knowledge of the
business and operations of LICENSOR. Accordingly, the parties acknowledge that
loss and irreparable damage would be suffered by either party hereto in the
event that the other party should breach or violate any of the solicitation or
hiring of employees provisions of this paragraph. It is further acknowledged
that any breach of such terms or provisions of this paragraph 8 would result in
injury to the non-breaching party that would be difficult or impossible to
accurately ascertain. Therefore, because of the impossibility of ascertaining
actual damages, it is agreed that in the event of a breach of any provision of
this paragraph by either party, the breaching party will pay to the other party
with respect to each such breach the sum of FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) as liquidated damages and not as a penalty. The parties hereby
agree that the amount of liquidated damages specified herein represents a
reasonable approximation of the damages which would be incurred as a result of a
breach of this paragraph. The parties further agree that in the event of any
actual or threatened breach of any of the provisions of this paragraph, the
aggrieved party shall be entitled (in addition to any and all other rights and
remedies at law or in equity for damages or otherwise, which rights and remedies
are and shall be cumulative) to specific performance or to a temporary
restraining order or an injunction to prevent such breach or contemplated
breach.
9. PUBLICITY RIGHTS. Manhattan Associates, LLC may include LICENSEE's name and
logo among its list of clients and may include a brief description of the
services furnished by Manhattan Associates, LLC and the functions performed
thereby.
10. PAYMENTS. LICENSOR'S invoices for fees and expenses shall be due and
payable in full immediately upon receipt by LICENSEE. Invoices not paid within
thirty (30) days from the invoice date shall bear interest from the invoice date
until paid at a rate of one and one-half percent (1.5%) per month or the maximum
rate permitted by applicable law, whichever is less. Time is of the essence for
all payments due under this Agreement, and in the event any payment due to
LICENSOR is collected at law or through an attorney-at-law, or under advice
therefrom, or through a collection agency, LICENSEE agrees to pay all costs of
collection, including, without limitation, all court cost and reasonable
attorney's fees.
11. MISCELLANEOUS.
A. TAXES. LICENSEE will reimburse LICENSOR for any and all taxes
assessed against LICENSOR resulting from this Agreement or the
products or service provided hereunder except taxes based upon
LICENSOR'S net income and LICENSOR'S payroll taxes. LICENSOR agrees to
provide LICENSEE with any and all tax bills or receipt as evidence of
any taxes assessed as provided herein.
B. NOTICES. Any notice or other communication pursuant to this
Agreement must be in writing and will be deemed to have been duly
given or made when personally delivered or when
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mailed by registered mail, postage prepaid, return receipt requested,
to the parties at the following addresses:
If to LICENSOR:
Manhattan Associates, LLC
2300 Windy Ridge Parkway, Suite 700
Atlanta, GA 30339
If to LICENSEE:
_______________________________
_______________________________
_______________________________
or to such other address as each party may hereinafter specify in
writing to the other.
C. BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the parties hereto, their heirs, successors, personal
representatives and assigns.
D. ASSIGNMENT/SUBLICENSE. Except as provided in paragraph 1, this
Agreement or any of LICENSEE'S rights hereunder may not be assigned
or sublicensed by LICENSEE.
E. THIRD PARTY SOFTWARE. If equipment manufactured by a third party
is sold by LICENSOR to LICENSEE ("Equipment") and the Equipment
includes software which is licensed by the third party to LICENSOR
("Software"), the software is hereby sublicensed or assigned by
LICENSOR to LICENSEE on a nonexclusive, nontransferable basis to be
used exclusively with the Equipment to which it relates. This third
party software license will terminate when the Equipment is no longer
being used by LICENSEE and LICENSEE shall not reverse engineer,
modify, copy, distribute or otherwise disclose the Software. IN NO
EVENT WILL THE THIRD PARTY EQUIPMENT MANUFACTURER BE LIABLE FOR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT
LIMITATION, ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE CAUSED
BY THE LOSS OF USE OF ANY DATA OR INFORMATION OR ANY INACCURATE DATA
OR INFORMATION.
F. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and there are no representations, warranties,
covenants or obligations except as set forth herein. This Agreement
supersedes all prior and contemporaneous Agreements, proposals,
understandings, negotiations and discussions, written or oral, of the
parties hereto, relating to any transaction contemplated by this
Agreement. This Agreement may be amended only in writing executed by
the parties. Except as otherwise specifically provided herein, nothing
in this Agreement is intended or shall be construed to confer upon or
to give any person other than the parties hereto any rights or
remedies under or by reason of this agreement.
G. ENUMERATION AND HEADINGS. The enumeration and headings contained in
this Agreement are for convenience of the reference only.
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H. GOVERNING LAW. This Agreement will be governed by and construed and
enforced in accordance with the laws of and under the jurisdiction of
the State of Georgia.
I. SEVERABILITY. If any of the provisions of this Agreement or
portions thereof are invalid under any applicable statute or rule of
law, they are to that extent to be deemed omitted, but this will not
affect enforceability of the remaining portion of this Agreement.
J. TERM. The term of this License will commence on the day hereof and
will continue as long as the LICENSEE desires to use the Programs.
IN WITNESS WHEREOF, the parties have executed the License Agreement, the day and
year first above written.
Manhattan Associates, LLC ___________________________________
(LICENSOR) (LICENSEE)
By: ___________________________ By: _______________________________
Date: __________________________ Date: _____________________________
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SCHEDULE A
PROGRAM FUNCTIONS
STANDARD PICKTICKET MANAGEMENT SYSTEM (PkMS) FUNCTIONS
(OUTBOUND SYSTEM)
* Ability to wand barcodes of items picked for an order during
checking/packing procedures and obtain immediate information regarding the
accuracy and completeness of the order.
* Select priority picktickets from the picktickets generated by the order
processing system. Remaining low priority ones can be processed next day
or later. The priority rules can be dynamically specified by the user
(e.g. Picktickets approaching Stop ship date).
* Print quantity of picktickets according to the Distribution Center
processing capacity requirements. (e.g. Number of units to be picked).
* Provides flexible grouping of picktickets by user specified rules. They
can be specified from day to day or at one time. This saves the time spent
in manual searching for the picktickets which need special processing
(e.g. Labeling, Call first, Particular customer).
* The facility to print all the Single Style picktickets together and in the
best picking sequence. By providing the best picking route through the
Distribution Center, the picking efficiency is increased, and number of
trips to a particular bin location is reduced. This printing can also be
done on particular days of the week for better efficiency.
* Facility to generate separate picktickets for Full Case and Unit picks.
* The Styles within a pickticket are printed in the best picking sequence.
This reduces the distance traveled in the Distribution Center while picking
an order.
* The facility to print all the orders for a customer.
* The ability to summarize multiple picktickets onto a single document. Since
this document summarizes all SKUs in the best pick sequence, warehouse
personnel can pick multiple picktickets with one pass through the
distribution center.
* Access and inquiry of picktickets not yet printed.
* Ability to route selected picktickets by customer, route type, consolidated
shipment weight and destination zip code.
* Ability to allocate SKUs defined based on a user-defined percentage.
* Ability to predetermine shipping container increments during the pickticket
selection (i.e. wave) process. This includes the ability to separate pre-
packs and the ability to group SKUs based on retailer-defined criteria
(e.g. "One SKU/carton," "No more than 4 SKUs/carton," "Mix colors but not
styles").
* Ability to track shipping containers into a pack and hold location. The
ability to pull groups of
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picktickets from pack and hold based on multiple criteria (e.g. by
customer, carrier ship date, etc.).
* Ability to identify picktickets to a manifest or bill of lading, and the
ability to automate the generation of these standard forms.
* Ability to track all shipping containers onto the shipping vehicle and
assure that all containers for the pickticket are loaded on the truck.
STANDARD INVENTORY MANAGEMENT SYSTEM (IMS) FUNCTIONS
(INVENTORY MANAGEMENT SYSTEM - INBOUND SYSTEM)
* Ability to receive finished and unfinished goods.
* Verify shipment accuracy against carton/pallet or shipment/PO ASNs. Also,
the ability to receive without ASN; user creates cases/pallets upon
receipt.
* Ability to load flexible immediate needs file before receipt begins to
allow diversion for immediate processing (e.g. Quality Control, Direct to
Active, etc.). All immediate needs are user-defined and maintained.
* Ability to receive against a pickticket and immediately print shipping
labels for inbound cases as they are received (i.e. cross docking).
* Provide a suggested put-away location for each case as it is received.
* Automate replenishment of the active pick sites. For each release, or
"wave" of picktickets, PkMS will calculate replenishment needs based on the
specific maximums and minimums of each pick site. There are three types of
replenishment calculations: pre-pick, during-pick, and post-pick.
* Automate perpetual inventory maintenance through receipt of inventory
updates from PkMS.
* Perform case inquiries by case #, SKU, and location.
* Track cartons by multiple statuses through the distribution center.
* Perform cycle and physical counts. The system allows different locations to
be locked for cycle counts. Options allow for one or more counts to
complete a cycle.
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STANDARD FREIGHT MANAGEMENT SYSTEM FUNCTIONS
* Manifest eligible picktickets to a manifest based on user defined selection
criteria and generate standard manifest and bill of lading forms.
* Combine several bills of lading to form a master bill of lading.
* Load verification which requires users to scan cartons onto a shipping
vehicle.
* Perform routing for a consolidated group of picktickets based on a user
definable routing guide.
* Direct cartons to staging locations or pack and hold locations.
* Generate pull lists for picktickets in pack and hold based on user
definable selection criteria such as a particular ship date and carrier.
* Pack and hold pull list verification which requires users to scan verify
every carton on a pull list.
* Perform trailer appointment scheduling based on user definable priorities.
* Perform trailer dock door assignment based on prioritized trailer
appointments.
STANDARD PARCEL SHIPPING SYSTEM FUNCTIONS
(MANIFEST SYSTEM)
* Define parcel services to include the following: carrier, service, default
carton value (for insurance calculation), and additional charges. This
allows PkMS to auto-discriminate cartons as they are scanned to the
manifest.
* Automatically assign cartons to the open manifest. The system will create
new manifests if needed. Also, the system can be set to assign certain
services to separate manifests.
* Calculate carton-level freight based on carton weight, carrier rates, and
zip/zone tables.
* Perform dimensional weight calculation for required services. Default the
required weight value as the carton weight.
* Perform a carton weight check against the estimated carton weight. The
tolerance percentage is defined at the warehouse level.
* Change the carrier to a truck carrier or a different parcel service.
* Automatically assign tracking numbers to each carton and print the tracking
number on certain generic shipping labels.
* Create standard output files that can be used for EDI to UPS to eliminate
paperwork at shipping.
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STANDARD ASN INTERFACE (PkMS) FUNCTIONS
(ASN SYSTEM)
* Creates case level ASNs in the required format to send to PkMS.
* Validates SKU entry into the ASN to ensure that once users begin receiving
cases into PkMS, there will be no invalid SKU issues.
* Contains a next up counter file to ensure that duplicate case records are
not created from one ASN interface system.
* Allows case inquiries by SKU and case number.
* Prints labels for the case ASNs created that allows receiving at the DC to
only scan a case number to receive a case.
* Provides the ability to purge the case records or ASN records created using
the ASN Interface.
STANDARD TASK MANAGEMENT FUNCTIONS
(TASK MANAGEMENT SYSTEM)
* Controls the automated generation of case and pallet pulls for active
replenishment, full case shipments and bulk pulls.
* Allows the automated assignment of tasks to users based on vehicle type and
location.
* Creates and maintains event generated cycle count tasks.
* Provides the ability to define task and vehicle specific paths of travel
and drop zones.
* Controls the automated guidance for directed putaway to reserve and pack
and hold locations.
* Provides system guidance to assign pallets and cases closest to their
respective active pick locations.
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SCHEDULE B
SITE LOCATION:
Site 1) _________________________________
_________________________________
_________________________________
Site 2) _________________________________
_________________________________
_________________________________
Site 3) _________________________________
_________________________________
_________________________________
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SCHEDULE C
PkMS Single Site License Fee
Program modules selected: Single Site
(Indicate number of sites) License Fee
_______ Outbound Distribution System (ODS) $35,000 $_______
_______ Radio Frequency for ODS $10,000 $_______
_______ Inventory Management System (IMS) $50,000 $_______
_______ Radio Frequency for IMS $15,000 $_______
_______ Freight Management System $10,000 $_______
_______ Parcel Shipping System $10,000 $_______
_______ Order Allocation System $15,000 $_______
_______ ASN Enabler System $20,000 $_______
_______ Task Management System $15,000 $_______
Total $_______
Payment Schedule: 50% payable upon execution of this Agreement;
50% payable thirty days later
As an option available for 2 years from the execution date of this Agreement,
the following license fee schedule applies for additional sites where the sales
effort is billed at the consulting rate: BETWEEN TWO AND FIVE SITES, 50% PER
SITE; ABOVE SIX SITES, 25% PER SITE. The fee is based on the license fee in
effect at the time the option is exercised and pertains to the Program modules
licensed with this Agreement. For other Program modules and for additional sites
when the sales effort is not billed at consulting rates, the then current
license fee applies.
________________________________________
(LICENSEE)
By: _________________________________
Date: ________________________________
This offer is valid for thirty days.
Prices effective as of July 1, 1997
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SOFTWARE MAINTENANCE AGREEMENT
AGREEMENT made and between Manhattan Associates, LLC having its principal place
of business at 2300 Windy Ridge Parkway, Suite 700, Atlanta, GA 30339
(hereinafter "LICENSOR") and _________. with its principal place of business
located at ________________ hereinafter "LICENSEE").
WHEREAS, LICENSOR has licensed to the LICENSEE certain systems as specified in
the LICENSOR License Agreement for Computer Programs (hereinafter License
Agreement) executed on or about ______________________ and as listed in the
Software Schedule annexed hereto and the LICENSEE wishes to have perform
software maintenance services on the licensed systems pursuant to the following
terms and conditions:
1. TERMS OF AGREEMENT. The term of this Agreement shall commence upon first
commercial use and shall continue for a period of one year (such date and each
annual anniversary thereof, hereinafter called the "anniversary date"). During
the term of this Agreement LICENSOR shall provide Licensor Support to the
LICENSEE. At least thirty days prior to each anniversary date, LICENSOR shall
notify LICENSEE of the applicable fee to be charged by LICENSOR for the
succeeding year, whereupon, unless LICENSEE notifies LICENSOR in writing that
this agreement shall terminate on the anniversary date, this Agreement shall be
extended and renewed for an additional period of one year at the annual fee
specified by LICENSOR. This Agreement may be terminated by either party on sixty
(60) days prior written notice.
2. SOFTWARE SYSTEM COVERED. The software covered in this Agreement is the
LICENSOR'S Software System, as more fully described in the LICENSOR License
Agreement and in the Software Schedule "A" annexed thereto, and as updated with
improvements or modifications furnished to the LICENSEE under the License
Agreement. During the term of this Agreement, LICENSOR shall supply the
LICENSEE with any improvements or modifications to the Software System modules
for which the LICENSEE has purchased a license.
3. CORRECTION OR REPLACEMENT. During the term of this Agreement, LICENSOR
shall use its reasonable best efforts to correct or replace the Software System,
or to provide the services necessary to remedy any programming error which is
attributed to LICENSOR and which significantly affects use of the Software
System. Such correction, replacement, or services shall be undertaken promptly
after the LICENSEE has identified and notified LICENSOR of any such error in
accordance with the License Agreement.
4. LICENSOR SUPPORT.
A. LICENSOR shall provide all labor necessary to maintain the Software System
in good operating condition throughout the term of this Agreement and all travel
within a fifty mile radius of LICENSOR'S offices. Reasonable expense for all
travel outside of this area will be at LICENSEE'S expense.
B. LICENSOR shall perform all maintenance provided pursuant to this Agreement
during the hours of 8:00 A.M. to 6:00 P.M. EST, Monday through Friday (excluding
holidays) hereinafter called Basic Coverage, and shall respond reasonably
promptly to requests for remedial maintenance made during these hours.
Optionally, at an additional fee, LICENSEE may select Extended Maintenance
Coverage, hereinafter called Extended Coverage, where LICENSOR shall perform
maintenance 24 hours each day, 7 days each week (excluding holidays).
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C. LICENSOR shall provide LICENSEE without charge:
i) Source code with new enhancements to Software System;
ii) Up to twenty (20) hours of telephone support during the hours
of coverage;
iii) Any technical newsletters of LICENSOR; and
iv) Automatic transmittal of all LICENSOR fix announcements.
5. LICENSEE SUPPORT. The LICENSEE agrees to maintain the Software System,
apply all appropriate fixes, provide LICENSOR appropriate access to the Software
System, provide appropriate workspace and supplies, and to provide LICENSOR with
all information including dumps, as requested, and with sufficient support and
test time on the LICENSEE'S computer system to duplicate the problem, certify
that the problem is with LICENSOR'S Software System, and certify that the
problem has been corrected.
6. LICENSEE RESPONSIBILITY. The LICENSEE shall inform LICENSOR in writing of
any modifications made by the LICENSEE to the Software System, unless otherwise
agreed to in writing. LICENSOR shall not be responsible for installing software
upgrades, maintaining LICENSEE modified portions of the Software System, or
maintaining portions of the Software System affected by LICENSEE modified
portions of the Software System. Corrections for difficulties or defects
traceable to the LICENSEE'S errors or systems changes shall be billed at
LICENSOR'S standard time and material charges.
7. TELECOMMUNICATIONS. If LICENSOR requests, the LICENSEE shall install and
maintain for the duration of this Agreement, a modem and associated dial-up
telephone line. The LICENSEE shall pay for installation, maintenance and use of
such equipment and associated telephone line use charges. LICENSOR, at its
option, shall use this modem and telephone line in connection with error
correction. Such access by LICENSOR shall be subject to prior approval by the
LICENSEE in each instance.
8. PRICE AND PAYMENT. LICENSEE shall pay to LICENSOR the annual maintenance
fee identified in paragraph 16 for the Maintenance Plan selected. Renewal shall
be at 15% of the then current standard license fee for Basic Coverage and 20% of
the then current standard license fee for Extended Coverage for each Software
System in the License Agreement. For multiple sites, the maintenance fee is
calculated as the sum of the license fee percentages multiplied by the then
current license fee multiplied by the maintenance plan percentage for the
maintenance plan chosen. The LICENSOR maintenance fee shall be payable upon
execution of this Agreement.
For example:
Percent Current Maintenance Maintenance
Site number of License Fee License Fee Plan Fee
---------- -------------- ----------- ----------- -----------
1 100%
2 50%
3 50%
4 50% Basic
------------
250% X $115,000 X 15% = $43,125
9. TRAVEL EXPENSES. The LICENSEE shall reimburse LICENSOR for any out-of-
pocket expenses incurred at the LICENSEE'S request, including travel to and from
the LICENSEE site, lodging, meals, telephone, and shipping, as may be necessary
in connection with the duties performed under this Agreement by LICENSOR.
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10. ADJUSTMENTS TO TERMS AND CONDITIONS. At any time after the expiration of
the initial one year term, LICENSOR may change its software maintenance fees,
terms and conditions upon 60 days written notice to the LICENSEE.
11. TITLE TO SOFTWARE SYSTEM AND CONFIDENTIALITY. Any changes, additions,
and enhancements in the form of new or partial programs or documentation as may
be provided under this Agreement shall remain proprietary to LICENSOR. The
License Agreement referred to above shall include under its proprietary
restrictions any such additional programming and documentation provided under
this Agreement.
The Software System or any improvements, modifications or changes to the
Software System provided hereunder and all copies thereof are proprietary to
LICENSOR and title thereto remains in LICENSOR. All applicable rights to
patents, copyrights, trademarks, and trade secrets in the Software System and
the improvements, modifications, and changes thereto are and shall remain in
LICENSOR. The LICENSEE shall not sell, transfer, publish, disclose, display, or
otherwise make available the Software System or improvements, modifications, or
changes thereto or copies thereof to others. The LICENSEE agrees to secure and
protect each program, software product and copies thereof in a manner consistent
with the maintenance of LICENSOR'S rights therein and to take appropriate action
by instruction or agreement with its employees who are permitted access to each
program or software product to satisfy its obligations hereunder. All copies of
the Software System, or improvements, modification or change thereto made by the
LICENSEE including translations, compilations, partial copies with modifications
and updated works are the property of LICENSOR.
Violation of any provisions herein shall be the basis for immediate
termination of this Software Maintenance Agreement. Termination of this
Agreement shall be in addition to and not in lieu of any equitable remedies
available to LICENSOR.
12. EXCLUSION OF LIABILITY. LICENSOR MAKES AND LICENSEE RECEIVES NO
WARRANTY, EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO
LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR
CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
13. TERMINATION. In the event of termination of the permanent LICENSOR
License Agreement referred to above, all maintenance fees or charges payable for
the term of this Agreement shall become due and payable and LICENSOR'S
obligations under this Software Maintenance Agreement shall immediately end.
LICENSOR may terminate this Agreement in the event of default by the LICENSEE.
14. TAXES. LICENSEE shall, in addition to the other amounts payable under
this Agreement, pay all sales and other taxes, federal, state, local or
otherwise, however designated, which are levied or imposed by reason of the
transactions contemplated by this Agreement. Without limiting the foregoing,
LICENSEE shall promptly pay to LICENSOR an amount equal to any such items
actually paid, or required to be collected and paid by LICENSOR.
15. GENERAL.
A. Each party acknowledges that it has read this Agreement, understands it,
and agrees to be bound by its terms and further agrees that it is the complete
and exclusive statement of the Agreement between the parties, which supersedes
and merges all prior proposals, understandings and all other agreements, oral
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<PAGE>
and written, between the parties relating to this Agreement. This Agreement may
not be modified or altered except by a written instrument duly executed by both
parties.
B. This Agreement and performance hereunder shall be governed by and
construed and enforced in accordance with the laws of the State of Georgia.
C. If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
D. The LICENSEE may not assign without the prior written consent of LICENSOR,
its rights, duties or obligations under this Agreement to any person or entity,
in whole or in part.
E. The waiver or failure of either party to exercise in any respect any right
provided for herein shall not be deemed a waiver of any further right hereunder.
16. MAINTENANCE PLAN SELECTION. Coverage as priced below is for the
following modules: Inbound (IMS), RF for IMS, Outbound (ODS) and RF for ODS,
Freight, Parcel and Task Management.
PLEASE MARK SELECTED COVERAGE BELOW: Annual
Maintenance Fee
__________ Basic Coverage for one site
__________ Extended Coverage for one site
Manhattan Associates, LLC _______________________________
(LICENSOR) (LICENSEE)
By: ________________________________ By: ________________________________
Date: ______________________________ Date: _______________________________
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<PAGE>
AUTHORIZATION FOR CONSULTING SERVICES
MANHATTAN ASSOCIATES, LLC
2300 Windy Ridge Parkway, Suite 700
Atlanta, GA 30339
(770) 955-7070
CLIENT: ___________________________
ADDRESS: ___________________________
___________________________
___________________________
Task Description:
Consulting, Software Programming, Installation and Training
1. Phase I - Outbound Distribution System
2. Phase II - Inventory Management System
Current billing rates are: Programming $120 per Hour
Consulting, Analysis, Training $140 per Hour
Manhattan Associates, LLC Clinet: ______________________________
By: _______________________________ By: __________________________________
Title: Director of Corporate Alliances Title: _______________________________
Date: , 1998 Date: ________________________________
SIGNATURE ACCEPTS CONDITIONS ON REVERSE
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TERMS AND CONDITIONS
1. Cooperation. Client agrees to fully cooperate with Consultant in connection
with Consultant's performance of services pursuant to this Authorization. Client
further agrees to take any and all actions necessary or convenient to enable
Consultant to perform the services contemplated herein in an effective and
efficient manner.
2. Confidentiality. Consultant agrees to treat as confidential (i) all
proprietary information of Client submitted to Consultant by Client as
confidential; (ii) all proprietary information of Client acquired by Consultant
in the course of performing services hereunder regarding special process or
products developed by Client; and (iii) all proprietary data concerning Client's
equipment, wages, prices, price lists, discounts and similar matters; provided,
however, that Consultant will not be obligated to treat as confidential any
information acquired by it that is either known to the general public or to the
industry, or known to, or in the possession of Consultant prior to its entering
into this Authorization.
3. Place of Performance. The services to be performed pursuant to this
Authorization may be rendered at any one or more suitable locations selected by
Consultant in its sole discretion.
4. Enticement of Employees. Neither Consultant nor Client shall solicit or hire
any of the other's employees (direct or indirect), former employees, employees
of affiliated companies, or agents assigned through contracted means for the
purpose of employment or independent consulting without the other party's prior
written consent, within thirty-six (36) months of the last date of employment of
such person by the other during the term of this Authorization, and for twenty-
four (24) months after the termination of this Authorization.
Consultant and Client acknowledge and agree that, by virtue of the nature of
the services to be performed by Consultant pursuant to this Authorization,
Consultant will have access to and special knowledge of Client's business
affairs and customers, and Client will have access to and special knowledge of
the business and operations of Consultant. Accordingly, the parties acknowledge
that loss and irreparable damage would be suffered by either party hereto in the
event that the other party should breach or violate any of the terms or
provisions of this paragraph 4. It is further acknowledged that any breach of
the terms or provisions of this paragraph 4 would result in injury to the non-
breaching party that would be difficult or impossible to accurately ascertain.
Therefore, because of the impossibility of ascertaining actual damages, it is
agreed that in the event of a breach of any provision of this paragraph 4 by
either party, the breaching party will pay to the other party with respect to
each such breach the sum of FIFTY THOUSAND AND NO/100 DOLLARS ($50000.00) as
liquidated damages and not as a penalty. The parties hereby agree that the
amount of liquidated damages specified herein represents a reasonable
approximation of the damages which would be incurred as a result of a breach of
this paragraph 4. The parties further agree that in the event of any actual or
threatened breach of any of the provisions of this paragraph 4, the aggrieved
party shall be entitled (in addition to any and all other rights and remedies at
law or in equity for damages or otherwise, which rights and remedies are and
shall be cumulative) to specific performance or to a temporary restraining order
or an injunction to prevent such breach or contemplated breach.
5. Patents and Copyrights. Should Consultant during the term of this
Authorization conceive or invent, either on the basis of information provided by
or otherwise with or without the assistance of Client, any process, device or
other innovation subject to patent or copyright, Consultant shall own any patent
or copyright issued.
6. Time Limitation. Consultant reserves the right to redefine the description
of services and estimated fees set forth on the front page hereof if this
Authorization is not executed by Client within sixty (60) days after the date of
Consultant's date of execution of this Authorization. Consultant also reserves
the right to revise the hourly billing rates upon which the estimated fees are
based in the event that the term of this Authorization exceeds one hundred
eighty (180) days.
7. Fees/Expenses/Taxes. Client agrees to pay Consultant for all time incurred
by Consultant in connection with the performance of services pursuant to this
Authorization at Consultant's hourly billing rates in effect at the time the
services are rendered including travel time billed at one half the current
Billing Rate. Client further agrees to reimburse Consultant for all expenses
incurred by Consultant in connection with the performance of services pursuant
to this Authorization, including, without limitation, all travel expenses
(including transportation, meals, lodging, relocation and all other travel-
related expenses), technical support expenses, telephone expenses, and reporting
expenses. All payments by Client to Consultant hereunder for fees and expenses
shall be invoiced with any sales or service tax or any other tax of any kind
whatsoever imposed by any governmental authority with respect to the services
rendered or expenses incurred hereunder (other than a tax imposed upon the
income or profits of Consultant), and Client agrees to pay any such tax whenever
such tax shall be imposed by a governmental authority and to reimburse
Consultant for any future payments of such tax made by Consultant to a
governmental authority.
8. Payment. Consultant's invoices for fees and expenses shall be due and
payable in full immediately upon receipt by Client. Invoices not paid within
thirty (30) days from the invoice date shall bear interest from the invoice date
until paid at a rate of one and one-half percent (1.5%) per month or the maximum
rate permitted by applicable law, whichever is less. Time is of the essence for
all payments due under this Authorization, and in the event any payment due to
Consultant is collected at law or through an attorney-at-law, or under advice
therefrom, or through a collection agency, Client agrees to pay all costs of
collection, including, without limitation, all court cost and reasonable
attorney's fees.
9. Limitation of Liability. In no event shall Consultant be liable to Client
whether in contract or in tort or under any other legal theory for lost profits
or revenues, loss of use, or similar economic loss, or for any indirect,
special, incidental, consequential or similar damages, arising out of or in
connection with the performance or non-performance of this Authorization, or for
any claim made against Client by any other party, even if Consultant has been
advised of the possibility of such claim. In no event shall Consultant's
liability under any claim exceed the total amount of fees theretofore paid by
Client to Consultant under this Authorization. No action, regardless of form,
arising out of or in connection with this Authorization (other than an action by
Consultant) for any amount due to Consultant by Client may be brought more than
one (1) year after the cause of action has arisen other than pursuant to
paragraphs 2, 4, 5, and 6 above.
10. Waiver. No failure on the part of Consultant to exercise, and no delay by
Consultant in exercising any right, power, or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power,
or remedy by Consultant preclude any other or further exercise thereof or the
exercise of any right, power, or remedy. No express waiver or assent by
Consultant of any breach of or default in any term or condition of this
Authorization shall constitute a waiver of or an assent to any succeeding breach
of or default in the same or any other term or condition hereof.
11. Severability. All rights and restrictions contained herein may be exercised
and shall be applicable and binding only to the extent that they do not violate
any applicable laws and are intended to be limited to the extent necessary so
that they will not render this Authorization illegal, invalid or unenforceable.
If any term of this Authorization shall be held to be illegal, invalid or
unenforceable by a court of competent jurisdiction, it is the intention of the
parties that the remaining terms hereof shall constitute their agreement with
respect to the subject matter hereof and all such remaining terms shall remain
in full force and effect.
12. Termination. Either party may, at its election, upon thirty (30) days of
prior written notice, terminate this Authorization, provided however, that the
termination of this Authorization shall not affect any right or claim of
Consultant incurred or accruing prior to the date of termination, including
without limitation, any right or claim of Consultant payable for services
rendered or reimbursable expenses incurred prior to such termination date.
Anything herein to the contrary notwithstanding, the provisions of sections
2,4,5,7,8,9,10,11, and 13 of this Authorization shall survive the termination of
this Authorization.
13. Notices. All notices and communications required or contemplated hereunder
shall be in writing and shall be deemed to have been duly given upon delivery in
person or upon expiration of three (3) days after the date of posting, if mailed
by registered mail, postage prepaid, to the parties at the addresses appearing
at the front hereof.
14. Governing Law. Regardless of the place of execution, place of performance
or otherwise, this Authorization and all amendments, modifications, alterations
or supplements hereto, and the rights of the parties hereunder shall be governed
by and construed and enforced in accordance with the laws of and under the
jurisdiction of the State of Georgia.
15. Successors. This Authorization shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
16. Headings. The headings as to the contents of particular paragraphs are
inserted only for convenience and shall not be construed as a part of this
Authorization or as a limitation on the scope of any of the terms or provisions
of this Authorization.
17. Entire Agreement. This Authorization supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof and
this Authorization contains the sole and entire agreement between the parties
with respect to the matters covered hereby. This Authorization shall not be
modified or amended except by an instrument in writing signed by or on behalf of
the parties hereto.
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