Software License, Services, Support and Enhancements Agreement - Manhattan Associates Inc. and Red Envelope Inc.
Software License, Services,
Support and Enhancements
Agreement
for
Red Envelope, Inc.
[MANHATTAN ASSOCIATES LOGO]
powering supply chain excellence
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[MANHATTAN ASSOCIATES LOGO] 2300 Windy Ridge Parkway
Atlanta, GA 30339
SOFTWARE LICENSE, SERVICES, SUPPORT AND
ENHANCEMENTS AGREEMENT ("AGREEMENT")
Client: Red Envelope, Inc.
Address: 201 Spear Street, Ste 300
San Francisco, CA 94105
Manhattan Associates, Inc., a Georgia corporation, ("Manhattan"), markets and
supports certain software applications licensed hereunder as "Licensed Products"
and Client is a DELAWARE corporation or having a principal place of business as
noted above and Client is desirous of obtaining a license to use the Licensed
Products, subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the background, the covenants herein
contained, and intending to be legally bound hereby, the parties agree as
follows:
ARTICLE I. DEFINITIONS
For purposes of this Agreement, the following terms shall mean:
CONFIDENTIAL INFORMATION
Certain confidential technical and business information, including without
limitation, business plans and interests, the Licensed Products and associated
documentation, and this Agreement, including its existence and its terms and
conditions.
CUSTOMER SUPPORT
Services provided by Manhattan pursuant to this Agreement, for which Client has
elected to subscribe, and related to technical support on Licensed Products.
Software Updates for Licensed Products are included as a part of a Customer
Support subscription.
CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS FEES
The fee(s) defined in Article V, Section 5(C).
DESIGNATED PROCESSOR
The hardware server(s) identified in any Attachment to this Agreement or a
written notification as described in Article II. Section 1(C). In the case of
non-server based software, the personal computers on which the Licensed Products
are resident.
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DESIGNATED SITE
The physical location(s) where (a) the Licensed Products are installed upon the
Designated Processor(s); or (b) are otherwise utilized; and which are
specifically identified in any Attachment to this Agreement or a written
notification as described in Article II. Section 1(C).
DISCLOSER
The party disclosing Confidential Information.
LICENSE FEE
The fee(s) defined in Article V, Section 5(A).
LICENSED PRODUCT(S)
The computer programming source and object code for the Licensed Products
identified in each Attachment A to this Agreement, any Software Enhancements,
any Software Updates, the media in which the Licensed Products are delivered,
and the associated documentation. Certain security operational controls,
Warehouse Management System for Windows, Labor Management, Performance
Management and Slotting Optimization are provided in object code only.
LICENSED USER(S)
Any individual which has accessed the Licensed Products. Licensed Users are
counted concurrently until ceasing use of the Licensed Products and the total
number of Licensed Users simultaneously using the Licensed Products at any one
time may not exceed the total number for which License Fees have been paid.
MODIFICATIONS
Any mutually agreed upon enhancements, modifications, or substitutions to the
Licensed Products made by or at the direction of Manhattan.
PUBLISHED PRODUCT SPECIFICATIONS
The User Guides and the Implementation Guides (in whatever media) associated
with the Licensed Products, as they may exist from time to time.
RECIPIENT
The party receiving Confidential Information.
SERVICES
Professional services provided to Client by Manhattan pursuant to Article III of
this Agreement and related to the Licensed Products, including programming,
consulting, analysis, and training.
SOFTWARE ENHANCEMENTS
Subsequent versions and releases of the Licensed Products which Manhattan makes
generally available without payment of additional License Fees during the
Subscription
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Period. Software Updates for Licensed Products are included as a part of a
Software Enhancements subscription.
SOFTWARE UPDATES
Corrections to Client's current version of the Licensed Products.
SUBSCRIPTION PERIODS
The time periods in annual increments during which Customer Support and/or
Software Enhancements are available under this Agreement.
ARTICLE II. SOFTWARE LICENSE ("LICENSE")
1. LICENSE GRANT.
(A) Manhattan grants to Client a non-exclusive perpetual license to use the
Licensed Products indicated in the Attachments A which may be executed from time
to time by the parties, and to use the Modifications, as follows:
(i) only on the Designated Processor(s), at the Designated Site(s), and only by
the Licensed Users, as applicable, identified in Attachments A attendant to this
Agreement;
(ii) in the case of the N-Tier version of the Licensed Products, to also utilize
the Licensed Products on personal computers used as clients in conjunction with
the Designated Processor;
(iii) to create Modifications to enhance Client's use of the Licensed Products
solely in the manner contemplated by this Agreement and not for any software
development or other independent efforts intended to generate revenues of any
kind;
(iv) only by Client and for Client's benefit through its ordinary course of
business and not for the benefit of any third party, including without
limitation, commercial timesharing or service bureau or other rental or sharing
arrangements, data processing or management information or services;
(v) only in the country in which they are first installed and may only be moved
to another country with the prior written permission of Manhattan; and,
(vi) copy the Licensed Products or Modifications for archival or backup purposes
only, so long as all titles, trademark, copyright, and restriction notices are
reproduced. No other uses are granted hereunder.
(B) Client may not:
(i) reverse engineer, disassemble, or decompile any part of the Licensed
Products or Modifications, except to the extent required to obtain
interoperability with other independently created or procured software or as
specified by law;
(ii) distribute, sell or otherwise transfer any part of the Licensed Products or
Modifications; or
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(iii) remove the patent, copyright, trade secret or other proprietary protection
legends or notices that appear on or in the Licensed Products.
(C) Client shall notify Manhattan in writing within thirty (30) days of any
model change to a Designated Processor(s), change in Designated Site(s) within
the same country, or desire to reallocate Licensed Users.
2. OWNERSHIP. Manhattan retains all title, copyright and other proprietary
rights in the Licensed Products and Modifications, and all versions of each. Any
developments including inventions relating to the Licensed Products shall be
owned by Manhattan. Client does not acquire any rights, express or implied,
other than those specified in this Agreement. Client agrees to secure and
protect the Licensed Products and Modifications in a manner consistent with
maintaining Manhattan's rights therein. Violation of Manhattan's intellectual
property rights shall be the basis for immediate termination of this Agreement,
which shall be in addition to and not in lieu of any equitable remedies
available to Manhattan. At Manhattan's written request, Manhattan may audit
Client's use of the Licensed Products or Modifications, at Manhattan's expense,
but not more frequently than annually. Such audit shall not unreasonably
interfere with Client's business activities. If an audit reveals that Client has
underpaid fees to Manhattan, Client shall promptly pay any such underpaid fees.
3. WRONGFUL POSSESSION OR ACCESS. Upon knowledge of any unauthorized possession,
use of, or access to, any Licensed Products or Modifications, Client shall
promptly notify Manhattan and furnish Manhattan with full details of such
knowledge, assist in preventing any recurrence thereof, and cooperate at
Manhattan's expense in any litigation or other proceedings reasonably necessary
to protect the rights of Manhattan.
4. SOURCE CODE ESCROW. By executing an Attachment C attendant to this Agreement,
Client elects to have the remaining source code of the Licensed Products which
it does not receive placed on deposit in Manhattan's master escrow account,
which source code shall be released upon the conditions outlined in said
Attachment. Upon making such election, Client agrees to pay to Manhattan the
then-current annual fee associated with being a beneficiary of such account.
Further, Client will receive written confirmation from the escrow agent of
Client's registration. At least thirty (30) days prior to expiration of Client's
annual subscription to Source Code Escrow, Manhattan shall notify Client of the
applicable escrow fees for the succeeding year, whereupon, unless Client
notifies Manhattan in writing of its desire to terminate its escrow subscription
upon such expiration date, Client's subscription to Source Code Escrow shall be
extended and renewed for an additional period of one (1) year at the
then-current fees specified by Manhattan. If Client fails to remit escrow fees
pursuant to the terms hereof, Manhattan will have no duty to include Client as a
beneficiary of its escrow account.
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ARTICLE III. SERVICES
1. SERVICES PROVISION. Manhattan will provide Services from time to time at
Client's request and under the terms and conditions of this Agreement.
2. MODIFICATIONS. As a part of Services, Manhattan will also provide
Modifications at Client's request, as documented by a Detailed Design
Specification or similar mutually agreed upon instrument. Client and Manhattan
agree that the Modifications provided to Client shall not be a "work made for
hire".
3. SERVICES TERMINATION. Client may, at its election and upon thirty (30) days
prior written notice, terminate the Services to be provided hereunder. However,
such termination shall not affect any right or claim of either party incurred or
accruing prior to the date of termination, including without limitation, any
right or claim of Manhattan payable for services rendered or reimbursable
expenses incurred prior to such termination date.
ARTICLE IV. CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS
1. CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS. Customer Support and Software
Enhancements shall be provided in accordance with Manhattan's Worldwide Customer
Support and Software Enhancements policies, as they may exist during each annual
Subscription Period. Subscriptions to Customer Support and/or Software
Enhancements are offered for only the Licensed Products and Client may not elect
to exclude any of the Licensed Products or any of the Designated Site(s) from
Manhattan's Customer Support and Software Enhancements subscriptions during the
Subscription Period.
2. SUBSCRIPTION PERIOD. The Subscription Period begins upon execution of an
Attachment B attendant to this Agreement. At least thirty (30) days prior to
expiration of a Subscription Period, Manhattan shall notify Client of the
applicable Customer Support and/or Software Enhancements Fees for the succeeding
year. Whereupon, unless Client notifies Manhattan in writing of its desire to
terminate its current subscription (s) on or before the expiration date for that
Subscription Period, Client's subscription(s) to Customer Support and/or
Software Enhancements shall be extended and renewed for an additional period of
one (1) year at the then current subscription fees specified by Manhattan.
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ARTICLE V. GENERAL
1. MUTUAL NONDISCLOSURE.
(A) Pursuant to this Agreement, each party may, from time to time, furnish the
other party with certain Confidential Information. The parties agree to hold
each other's Confidential Information in confidence. Each party agrees to take
all reasonable steps to ensure that Confidential Information is not disclosed or
distributed by its employees in violation of this Agreement. The disclosure of
Discloser's Confidential Information does not grant to the Recipient any license
or rights to any trade secrets or under any patents or copyrights, except as
expressly provided by the licenses granted in this Agreement.
(B) The obligations of Recipient with respect to any particular portion of
Confidential Information shall terminate or shall not attach, as the case may
be, when such information:
(i) was in the public domain at the time of Discloser's communication thereof to
Recipient;
(ii) entered the public domain through no fault of Recipient subsequent to the
time of Discloser's communication thereof to Recipient;
(iii) was in Recipient's possession free of any obligation of confidence at the
time of Discloser's communication thereof to Recipient;
(iv) was independently developed by Recipient as demonstrated by written
records; or,
(v) is required to be disclosed by court or government order and Discloser has
been given notice of such order.
(C) Discloser understands that Recipient may develop information internally, or
receive information from other parties, that may be similar to Discloser's
information. Accordingly, nothing in this Agreement shall be construed as a
representation or inference that Recipient will not independently develop
products, for itself or for others, that compete with the products or systems
contemplated by Discloser's information. The parties agree that a breach of the
confidentiality obligations by Recipient shall cause immediate and irreparable
monetary damage to Discloser and shall entitle Discloser to injunctive relief in
addition to all other remedies.
2. WARRANTIES. Manhattan warrants that it possesses all rights and interests
necessary to enter into this Agreement. In addition, Manhattan extends the
following warranties:
(A) LICENSED PRODUCTS. For a period of twenty-four (24) months following
execution of this Agreement or six (6) months following the first commercial use
of the Licensed Products at the initial Designated Site, whichever occurs
earlier, Manhattan warrants that the Licensed Products will materially perform
the functions described in the Published Product Specifications. Manhattan
warrants that the Licensed Products: (i) will completely and accurately address,
present, produce, store and calculate data involving
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dates beginning with January 1, 2000, and will not produce abnormally ending or
incorrect results involving such dates as used in any forward or regression date
based functions; and (ii) will provide that all "date"-related functionalities
and data fields include the indication of century and millennium and will
perform calculations which involve a four-digit year field.
(B) SERVICES. For a period of ninety (90) days following the date of
performance, Manhattan warrants that the Services supplied hereunder shall be
performed consistent with generally accepted industry standards.
(C) CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS. During the Subscription Period,
Manhattan warrants that the Licensed Products will materially perform the
functions described in the Published Product Specifications as they may exist
during the Subscription Period.
(D) WARRANTY EXCLUSIONS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE
ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Manhattan makes no warranty with respect to and shall have no responsibility or
liability whatsoever for Modifications not made by Manhattan. All Modifications
made by Client shall be made at the sole risk and expense of Client and shall
void any warranties of the Licensed Products to the extent such nonconformity is
caused by such Modification.
3. EXCLUSIVE REMEDIES. For any breach of warranties contained in Section 2 of
this Article, Client's exclusive remedy and Manhattan's entire liability shall
be as follows:
(A) LICENSED PRODUCTS. The correction of errors in the Licensed Products that
cause breach of warranty, or if Manhattan is unable to provide such correction,
Client shall be entitled to terminate this Agreement as it relates to the
non-conforming Licensed Products and receive a refund of the License Fees paid
for the non-conforming Licensed Products.
(B) SERVICES. The reperformance of the Services, or if Manhattan is unable to
perform the Services as warranted, Client shall be entitled to recover the fees
paid to Manhattan for the unsatisfactory Services.
(C) CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS. The correction of errors in the
Licensed Products that cause breach of warranty, or if Manhattan is unable to
provide such correction, Client shall be entitled to terminate this Agreement as
it relates to the non-conforming Licensed Products and receive a refund of the
Customer Support and/or Software Enhancements Fees paid for the non-conforming
Licensed Products for the then current Subscription Period.
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4. INDEMNITIES. INFRINGEMENT. Manhattan, at its sole expense, agrees to defend
and indemnify Client against any claim that the Licensed Products or
Modifications directly infringe a copyright, patent, or other intellectual
property right, provided that: (i) Client notifies Manhattan in writing within
thirty (30) days of the claim; (ii) Manhattan has sole control of the defense
and all related settlement negotiations; and (iii) Client provides Manhattan
with the information, assistance and authority to enable Manhattan to perform
Manhattan's obligations under this paragraph. Manhattan shall have no liability
for any claims of infringement to the extent that such claims result from the
use of the Licensed Products in conjunction with non-Manhattan software or other
non-Manhattan products or upon a use of the Licensed Products in a manner not
contemplated by the Published Product Specifications. Nothing in this provision
shall be construed as a limitation on Client's ability to retain legal counsel
at its own expense to monitor the proceedings.
Manhattan further agrees that if Client is prevented from using the Licensed
Product(s) due to an actual or claimed infringement of any patent, copyright or
other intellectual property right, then at Manhattan's option and as its entire
obligation to Client with respect to such claims, Manhattan shall promptly
either:
(i) procure for Client, at Manhattan's expense, the right to continue to use the
Licensed Product(s);
(ii) replace or modify the Licensed Product(s) at Manhattan's expense so that
the Licensed Product(s) become non-infringing, but substantially equivalent in
functionality; or
(iii) in the event that neither (i) or (ii) are reasonably feasible, terminate
the Agreement as to the infringing Licensed Products and return Client's License
Fees for the infringing Licensed Product(s) amortized over a five (5) year
depreciation period from the execution of the Agreement.
5. PAYMENT.
(A) LICENSE FEES. In consideration for the License granted in Article II, Client
agrees to pay to Manhattan the License Fees designated on any Attachment A
attendant to this Agreement upon the execution of this Agreement and any
Attachment A attendant to this Agreement.
(B) SERVICES FEES / EXPENSES. As compensation for performing Services, Client
agrees to pay Manhattan on a time and materials basis which shall be billed at
Manhattan's then-current list prices. Training shall be billed at Manhattan's
then-current list prices. Manhattan will invoice Client every two (2) weeks
while Services are being performed. Client agrees to reimburse Manhattan for all
reasonable out-of-pocket expenses Manhattan incurs in providing Services. If
amounts remain unpaid for thirty (30) days or more, Manhattan may, at its
option, refuse to perform additional Services under this Agreement until such
amounts are paid.
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(C) CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS FEES. In consideration for the
Customer Support and/or Software Enhancements to be provided hereunder and for
which Client elects to subscribe, Client shall pay Customer Support and/or
Software Enhancements Fees in accordance with any Attachment B attendant to this
Agreement and subsequently as an annual charge. The first payment shall be due
upon execution of any Attachment B attendant to this Agreement. During the
Subscription Period, Client may be billed additional Customer Support and
Software Enhancements Fees resulting from additional Designated Sites,
additional Licensed Products, additional Licensed Users, or from the upgrade of
service level. If Client fails to remit Customer Support and/or Software
Enhancements Fees pursuant to the terms hereof, Manhattan will have no duty to
provide Customer Support and Software Enhancements as specified under Article
IV.
(D) TAXES. The fees listed in this Agreement do not include taxes. If Manhattan
is required to pay any sales, use, property, excise, value added, gross
receipts, or other taxes levied on the Licensed Products or Services under this
Agreement or on Client's use thereof, then such taxes shall be billed to and
paid by Client. This Section does not apply to taxes based on Manhattan's net
income or Manhattan's employer contributions and taxes.
(E) INVOICES. Client agrees to pay for all amounts due under this Agreement upon
receipt of invoice. Such amounts which remain unpaid for thirty (30) days after
invoice date will bear interest from the invoice date of one and one-half
percent (1 1/2%) per month or the highest rate permitted by law, if less. Time
is of the essence for all payments due under this Agreement, and in the event
any payment due to Manhattan is collected at law, through an attorney-at-law or
a collection agency, Client agrees to pay all costs of collection, including
without limitation, all court costs and reasonable attorney's fees.
(F) All payments made hereunder are nonrefundable, except as specifically
provided otherwise in this Agreement.
6. LIMITED LIABILITY. EXCEPT FOR a) FAILURE TO COMPLY WITH MANHATTAN'S
PROPRIETARY RIGHTS, b) FAILURE TO COMPLY WITH THE MUTUAL NONDISCLOSURE
PROVISION, OR c) THE INFRINGEMENT INDEMNITY PROVISIONS CONTAINED HEREIN: (A) IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR A MONETARY AMOUNT
GREATER THAN THE AMOUNTS PAID OR DUE PURSUANT TO THIS AGREEMENT, AND (B) IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES
TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT
OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER
REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. The provisions of this Agreement
allocate the
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risks between Manhattan and Client. Manhattan's pricing reflects this allocation
of risk and the limitation of liability specified herein.
7. EMPLOYEE RECRUITING. Each party acknowledges that the other party's employees
are critical to the servicing of its customers. Therefore, Client agrees not to
solicit, employ or otherwise engage Manhattan's employees without Manhattan's
prior written consent for a period of thirty-six (36) months following that
employee's last date of employment by Manhattan and Manhattan agrees not to
solicit, employ or otherwise engage Client's employees involved in the services
contemplated by this Agreement without Client's prior written consent for a
period of thirty-six (36) months following that employee's last date of
employment by Client. Should either party violate this provision, the violating
party agrees to pay the other party the greater of onehalf of the former
employee's annual salary or fifty thousand dollars ($50,000). The parties
further agree that in the event of any actual or threatened breach of any of the
provisions of this section, the non-breaching 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, a temporary restraining order, or an injunction to prevent
such breach or contemplated breach. Further, such payment and additional relief
does not restrict the non-breaching party's rights or remedies as they relate to
such former employee.
8. TERMINATION. If either party materially breaches this Agreement, the other
party may give written notice of its desire to terminate and the specific
grounds for termination and, if such default is capable of cure and the party in
default fails to cure the default within thirty (30) days of the notice, the
other party may terminate this Agreement. If such default is incapable of cure,
the other party may terminate this Agreement immediately upon written notice of
its desire to terminate. Upon termination, the License to use the Licensed
Products and Modifications shall be immediately revoked and all Licensed
Products and Modifications and supporting materials will be returned to
Manhattan or destroyed and documentation supplied to Manhattan certifying
destruction. Confidentiality obligations shall survive this Agreement.
9. EXPORT ADMINISTRATION. Client agrees to comply fully with all relevant export
laws and regulations of the United States ("Export Laws") to assure that neither
the Licensed Products nor any direct product thereof are (A) exported, directly
or indirectly, in violation of Export Laws; or (B) are intended to be used for
any purposes prohibited by Export Laws. Client will indemnify Manhattan for any
losses, costs, liability, and damages, including reasonable legal fees, incurred
by Manhattan as a result of failure by Client to comply with this Section.
Manhattan may, from time to time, deny Client the right to license in certain
countries in order to protect Manhattan's interests.
10. GENERAL.
(A) WAIVER. The waiver of one breach hereunder shall not constitute the waiver
of any other or subsequent breach. No amendments, modifications or supplements
to this Agreement shall be binding unless in writing and signed by the parties.
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(B) NOTICES. All notices shall be in writing and shall be sufficiently given if:
(i) delivered by hand; (ii) delivered by courier with a signed receipt; (iii)
sent by facsimile transmission, but only if original documents are delivered as
of the fifth (5th) working day thereafter; or (iv) sent by registered mail or
certified mail, postage prepaid to the respective addresses of the parties noted
herein or such other address as shall be furnished from time to time in writing
by either party. To expedite order processing, Client agrees that Manhattan may
treat documents faxed by Client to Manhattan as original documents. However,
either party may require the other to exchange original signed documents.
(C) GOVERNING LAW. The laws of the State of Georgia shall govern this Agreement,
and all matters arising out of or related to this Agreement, except actions
arising under the patent and copyright provisions of the U.S. Code. The parties
hereby submit to the jurisdiction of the Georgia courts. The parties agree that
this Agreement is not subject to and shall not be interpreted by the United
Nations Convention on Contracts for the International Sale of Goods. No action
arising out of this Agreement, regardless of form, may be brought more than one
(1) year after the claiming party knew or should have known of the cause of
action.
(D) ASSIGNMENT. This Agreement may not be assigned by Client and any attempted
assignment shall be void.
(E) PUBLICITY RIGHTS. Manhattan may include Client's name and logo among its
list of customers and may include a brief description of the services furnished
by Manhattan and the functions performed thereby.
(F) LANGUAGE. Should a counterpart to this Agreement be prepared in a language
other than English, then English shall be the language of this Agreement and the
English language counterpart shall govern all disputes, performances and
interpretations, and the counterpart in another language shall be for
convenience only and shall not affect the performance or interpretation of this
Agreement.
(G) CURRENCY. All amounts stated in and payable under this Agreement shall be
denominated and payable in United States Dollars.
(H) SEVERABILITY. If any provision or portion thereof of this Agreement is held
to be invalid or unenforceable, the remaining provisions will remain in full
force.
(I) THIRD PARTY SOFTWARE. Third party software which is licensed by the third
party to Manhattan ("Software"), is hereby sublicensed or assigned by Manhattan
to Client on a nonexclusive, nontransferable basis to be used exclusively with
the Licensed Products to which it relates. This third party software license
will terminate when this agreement terminates or when the Licensed Products are
no longer being used by Client. Client shall not reverse engineer, modify, copy,
distribute or otherwise disclose the Software.
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IN NO EVENT WILL MANHATTAN OR THE THIRD PARTY SOFTWARE 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.
(J) The terms of all shipments of software are FOB Shipping Point. This
Agreement, including its terms and conditions and its attachments and
amendments, is a complete and exclusive statement of the agreement between the
parties, which supersedes all prior or concurrent proposals and understandings,
whether oral or written, and all other communications between the parties
relating to the subject matter of this Agreement. This Agreement, and any
amendments, Attachments, modifications or supplements thereto, shall not be
effective until executed by Client and accepted and executed by the Chief
Financial Officer, Chief Legal Officer or Chief Executive Officer of Manhattan.
By execution, signer certifies that signer is duly authorized to execute this
Agreement on behalf of Manhattan. Accepted by Manhattan and effective as of.
MANHATTAN ASSOCIATES, INC.
By: /s/ EDWARD K. QUIBELL
-------------------------
(Authorized Signature)
Edward K. Quibell
-------------------------
(Print or Type Name)
Chief Financial Officer
-------------------------
(Title)
By execution, signer certifies that signer is duly authorized to execute this
Agreement on behalf of Client.
CLIENT
By: /s/ JOHN W. ROBERTS
-----------------------
(Authorized Signature)
/s/ JOHN W. ROBERTS
------------------------------
(Print or Type Name and Title)
12/29/03
--------------
(Date Signed)
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[MANHATTAN ASSOCIATES LOGO]
2300 Windy Ridge Parkway
Atlanta, GA 30339
ADDENDUM TO
SOFTWARE LICENSE, SERVICES, SUPPORT AND
ENHANCEMENTS AGREEMENT
Client: Red Envelope, Inc.
Address: 201 Spear Street, Ste 300
San Francisco, CA 94105
This Addendum is made by and between Manhattan Associates, Inc. ("Manhattan")
and Client in consideration of their mutual promises and subject to its Terms
and Conditions. This Addendum amends the Software License, Services, Support and
Enhancements Agreement ("Agreement") by and between Manhattan and Client by its
Terms and Conditions.
THE AGREEMENT is amended by the addition of the following:
"This Agreement, including any and all Addenda and Attachments, must be executed
by Client and received by Manhattan no later than NOON on December 31, 2003 for
the terms of this Agreement to be valid."
ARTICLE II. SOFTWARE LICENSE, is amended as follows:
SECTION 1. LICENSE GRANT, Paragraph (A), Subsection (vi), is amended by the
addition of the following:
"Manhattan agrees that Client may provide for Disaster Recovery Services either
on a computer processing unit at its Columbus, Ohio Designated Site, which may
be owned or leased by the Client, or on a processor provided for Disaster
Recovery by a third party organization. Client agrees to notify Manhattan of the
Model and Serial Number of said processor. "This license is granted only for the
Licensed Products installed on Client's Designated Processor and not for any
other Licensed Products installed on any other processor(s). The Licensed
Products loaded upon a Disaster Recovery Processor will only be operational,
other than for disaster recovery test purposes, in case of disaster conditions
and inoperability of the Client's Designated Processor(s). Immediately upon the
Client's Designated Processor(s) regaining operable status, Client agrees to
cease using the Licensed Products on the Disaster Recovery Processor, except as
needed to restore the Designated Processor(s) to proper operating condition.
Should Client choose to utilize Disaster Recovery services provided by a third
party organization, Client agrees to provide Manhattan with a copy of Client's
service agreement with the third party and
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an original Manhattan Non-Disclosure Agreement executed by the third party.
Client agrees to be fully responsible to Manhattan for all damages, including
lost profits and consequential damages, if applicable, for any unauthorized use,
disclosure, or duplication of the Licensed Products by the third party
organization or any other unauthorized party."
SECTION 1. LICENSE GRANT, Paragraph (A), Subsection (vi), is further amended by
the addition of the following:
"Furthermore, Client may install and use the Licensed Products on a Designated
Processor without payment of additional License Fees, provided Client pays any
additional third party license fees required by Manhattan's licensors for such
copies and so long as the use is limited solely to a testing and development
environment with a maximum of ten (10) concurrent users, simulated use. If use
of the Licensed Products exceeds these limits, Client agrees to pay then current
License Fees for such usage of the Licensed Products. Client agrees to notify
Manhattan in writing of the Model, and Serial Number of said test processor.
Further, in Client's test environment Client may simulate up to 1000 users
solely for test and development purposes provided however Client agrees to
provide Manhattan with not less than two (2) days advance notice of the date and
duration of said test."
SECTION 1. LICENSE GRANT, is amended by the addition of the following:
"(D) Manhattan acknowledges that Client may experience peak seasons in which it
may temporarily exceed the number of Licensed Users permitted under this
Agreement. As a specific accommodation of this situation, Manhattan agrees that
Client may temporarily exceed the total number of Licensed Users during for up
to two (2) consecutive months, provided however, in no event shall such use
exceed a total of four (4) months in any calendar year, and the total number of
concurrent users shall not exceed two hundred (200). If use of the Licensed
Products exceeds these limits, Client agrees to pay the then-current License Fee
for said excess Licensed Users."
ARTICLE III. SERVICES, SECTION 1. SERVICES PROVISION, is amended by the addition
of the following:
"Manhattan agrees to perform implementation Services in accordance with
Manhattan's PRISM methodology which outlines implementation and includes the
creation of the Project Plan, Statement of Work, Functional Design and the
Detail Design Specification for such implementation. In the event of a change in
scope of the implementation, the parties will mutually agree to modify the
appropriate documentation by a Change Order. Such Change Order may be initiated
by Client. Manhattan will then estimate the added cost, net of any credit for
work that will not need to be performed, and advise Client of such cost. Client
will then advise Manhattan whether Client wants to proceed with the Change Order
and, if so, the appropriate documentation will be Page 2 of 4 ADDSLSSEA.30808
appropriately amended. Manhattan agrees to perform these implementation Services
provided Client performs its obligations pursuant to this Agreement."
<PAGE>
ARTICLE IV. CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS, SECTION 1. is amended as
follows:
"Notwithstanding anything to the contrary in the Worldwide Customer Support and
Software Enhancement's policy, provided Client is operating on version 2003R1 or
later, in the event Manhattan creates a modification to the Licensed Products
per Client's request, and such modification creates a non-conformity in the
Licensed Products against the Published Product Specifications, Manhattan shall
determine and fix such non-conformity in the Licensed Products as part of
Client's annual Customer Support and Software Enhancements Subscription.
However, in no event shall Manhattan have any liability for modifications not
made by Manhattan and any errors as a result of modifications not made by
Manhattan shall be billable."
ARTICLE V. GENERAL, is amended as follows:
SECTION 2. WARRANTIES, Paragraph (C) is amended by the addition of the
following:
"Manhattan's obligations shall not materially degrade from that set forth in the
Worldwide Customer Support and Software Enhancement in effect as of the date of
this Agreement."
SECTION 5. PAYMENT, Paragraph (A), is amended by the addition of the following:
"For the Licensed Products, Licensed Users and Designated Sites licensed upon
execution hereof, Client agrees to pay the License Fees set forth in the
Attachment A executed contemporaneously herewith in accordance with the
following schedule:
- Twenty-five percent (25%) upon execution hereof;
- Twenty-five percent (25%) within forty-five (45) days of execution hereof;
- Twenty-five percent (25%) within ninety (90) days of execution hereof; and
- The remaining twenty-five percent (25%) within one hundred eighty (180)
days of execution hereof."
SECTION 5. PAYMENT, PARAGRAPH (A), is further amended by the addition of the
following:
"Until December 31, 2004, Client may elect to pay an additional [ * ] of any
Warehouse Management System (WMS) Licensed Product License Fee due
contemporaneously with each transaction under this Agreement (including the
initial execution of the Agreement as well as any licensing of additional
Licensed Users, Licensed Products and/or Designated Sites) for the cost of a
runtime license to Visibroker. For the purposes of this
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
<PAGE>
transaction, the Visibroker License Fee will be [ * ]. Thereafter, and to any
additional Licensed Products, Licensed Users and Designated Sites, then-current
prices, terms, and conditions shall apply."
SECTION 5. PAYMENT, Paragraph (B), is amended by the addition of the following:
"For Services for the initial implementation of the Licensed Products, Licensed
Users and Designated Sites licensed upon execution hereof, Manhattan agrees to
provide Client a [ * ] discount on the billing rates listed below for Services
incurred by Client through December 31, 2004.
CONSULTING BILLING RATES ANALYSTS / R & D / OTHER BILLING RATES
Executives [ * ]
Vice President [ * ]
Design Leader / Director [ * ]
Hardware System Consulting [ * ]
Manager [ * ]
Project Manager [ * ]
Senior Consultant [ * ]
Hardware Services [ * ]
Consultant/Hardware/Telephone [ * ]
Support [ * ]
Associate [ * ]
Vice President [ * ]
Director/Senior Development Manager [ * ]
Development Manager [ * ]
Senior Software Engineer [ * ]
Software Engineer [ * ]
Associate [ * ]
For the initial implementation of the Licensed Products, Licensed Users, and
Designated Sites licensed contemporaneously with the execution of this Addendum,
and provided said implementation is completed on or before December 31, 2004, as
such date shall be extended due solely to the fault of Manhattan, Manhattan
estimates that the Services fees to provide the implementation Services
specified in the Red Envelop Process Flow Diagram.doc, the Red Envelope Project
Plan V1 20031125.mpp, and the Red Envelope Functional Flow 20031121.doc
("Implementation documents") shall be [ * ], and
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
<PAGE>
Manhattan agrees not to exceed such amount. In the event the scope of project as
described in said implementation Documents should change, or associated roles
and responsibilities should change, the aforementioned estimated and "not to
exceed" amounts shall be adjusted as mutually agreed to in good faith by the
parties. Further, in the event Client requests additional Services beyond those
detailed in the Implementation Documents; Manhattan agrees to provide an
additional [ * ] discount on the Services Rates listed above. Page 3 of 4
ADDSLSSEA.30808 Client and Manhattan acknowledge Client's objective to have
first commercial use of the License Products on or before July 15, 2004. In the
event such first commercial use is achieved on or before said date, Client
agrees to pay Manhattan an additional [ * ] in Services Fees. Should such First
Commercial Use occur after said date solely due to the fault of Manhattan,
Manhattan agrees to pay Client [ * ]. Such payment shall be made by either party
no later than thirty (30) days following first commercial use of the Licensed
Products. In the event the scope of any or all of the project, Modifications,
and/or the associated roles/responsibilities should change with respect to said
cost estimates, the parties will mutually agree to modify the appropriate
documentation and costs by a change order. Manhattan will estimate the added
cost, net of any credit for work that will not need to be performed, and advise
Client of such cost. Client will then advise Manhattan whether Client wants to
proceed with the change order and, if so, the appropriate documentation will be
appropriately amended. In the event the scope of any or all of the project,
Modifications, and/or the associated roles/responsibilities should change with
respect to said cost estimates is not mutually agreed to by Client and
Manhattan, the estimates and payment obligations provided herein shall no longer
apply. Client is responsible for the out-of-pocket expenses associated with said
efforts. Manhattan agrees to perform these implementation Services provided
Client performs its obligations pursuant to this Agreement. After December 31,
2004, then-current prices terms and conditions shall apply."
SECTION 5. PAYMENT, Paragraph (C), is amended by the addition of the following:
"For the Licensed Products, Licensed Users and Designated Sites licensed upon
execution hereof, Client agrees to pay the Customer Support and Software
Enhancements Fees set forth in the Attachment B executed contemporaneously
herewith in accordance with the following schedule:
- Twenty-five percent (25%) upon execution hereof;
- Twenty-five percent (25%) within ninety (90) days of execution hereof;
- Twenty-five percent (25%) within one hundred eighty (180) days of
execution hereof; and
- The remaining twenty-five percent (25%) within two hundred seventy (270)
days of execution hereof. "Thereafter, and to any additional Licensed Products,
Licensed Users and Designated Sites, then-current prices, terms, and conditions
shall apply."
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
<PAGE>
SECTION 5. PAYMENT, PARAGRAPH (C), is further amended by the addition of the
following:
"For a period of four (4) years following the date of execution of this
Agreement, for the Licensed Products, Licensed Users and the Designated Sites
licensed contemporaneously with this Addendum, Manhattan agrees not to increase
Client's prices for Customer Support and/or Software Enhancements Fees more than
the national rate of inflation for the preceding twelve (12) month period, as
measured for the Consumer Price Index by the United States Bureau of Labor
Statistics (CPI-W) plus [ * ] per year. Following said four (4) Subscription
Periods and for additional Licensed Products, Licensed Users, or Designated
Sites not licensed contemporaneously with this transaction, then current prices,
terms and conditions shall apply."
SECTION 7. EMPLOYEE RECRUITING, is replaced in its entirety by the following:
"Each party acknowledges that the other party's employees are critical to the
servicing of its customers. Therefore, each party agrees not to solicit, employ
or otherwise engage the other party's employees without the employing party's
prior written consent for a period of twelve (12) months following that
employee's last date of employment by the employing party. Should either party
violate this provision, the violating party agrees to pay the other party the
greater of one-half of the former employee's annual salary or fifty thousand
dollars ($50,000). The parties further agree that in the event of any actual or
threatened breach of any of the provisions of this section, the non-breaching
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, a temporary restraining order, or
an injunction to prevent such breach or contemplated breach. Further, such
payment and additional relief does not restrict the non-breaching party's rights
or remedies as they relate to such former employee."
SECTION 10. GENERAL, Paragraph (C) GOVERNING LAW, is amended by replacing
"Georgia" with "New York".
SECTION 10. GENERAL, Paragraph (E) is amended to read as follows:
"PUBLICITY RIGHTS. Manhattan may include Client's name and logo among its list
of clients, and may disclose Client's name only during its quarterly earnings
announcement in fulfillment of its SEC disclosure requirements. Either party may
advertise or publicize the relationship created by this Agreement, provided that
any such advertisements or publicity materials are pre-approved by the other
party, which approval shall not be unreasonably withheld."
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
<PAGE>
THIS ADDENDUM, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL
PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND
ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF
THIS ADDENDUM AND THE AGREEMENT.
Notwithstanding anything to the contrary in the Agreement, in the event of a
conflict between the terms and conditions of this Addendum and those contained
within the Agreement, the terms and conditions of this Addendum shall prevail.
All other terms and conditions remain unchanged and are ratified hereby.
THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CLIENT AND ACCEPTED AND
EXECUTED BY THE CHIEF FINANCIAL OFFICER , CHIEF LEGAL OFFICER OR CHIEF EXECUTIVE
OFFICER OF MANHATTAN.
By execution, signer certifies that signer is duly authorized to execute this
Agreement on behalf of Manhattan. Accepted by Manhattan and effective as of
12/30/03.
MANHATTAN ASSOCIATES, INC.
/s/ EDWARD K. QUIBELL
---------------------
(Authorized Signature)
Edward K. Quibell
--------------------
(Printed Name)
Chief Financial Officer
-----------------------
(Title)
By execution, signer certifies that signer is duly authorized to execute this
Agreement on behalf of Client.
CLIENT
/s/ JOHN W. ROBERTS
-------------------
(Authorized Signature)
/s/ John W. Roberts, svp Tech & Ops
-----------------------------------
(Printed Name and Title)
12/29/03
---------------
(Date Signed)
<PAGE>
[MANHATTAN ASSOCIATES LOGO]
2300 Windy Ridge Parkway
Atlanta, GA 30339
ATTACHMENT A - LICENSED PRODUCTS
(U.S & CANADIAN SITES ONLY)
Client: Red Envelope, Inc.
Address: 201 Spear Street, Ste 300
San Francisco, CA 94105
This Attachment A ("Attachment") to the Software License, Services, Support and
Enhancements Agreement ("Agreement") is made by and between Manhattan
Associates, Inc. ("Manhattan") and Client in consideration of their mutual
promises and subject to its terms and conditions. This Attachment amends the
Agreement dated. Client agrees to license the designated Licensed Products for
use on the Designated Processor(s) at the Designated Site(s).
THE "LICENSE USE" SECTION OF THE AGREEMENT IS AMENDED BY THE ADDITION OF THE
FOLLOWING: CLIENT HAS THE RIGHT TO USE ONLY THE LICENSED PRODUCTS DESIGNATED ON
THIS ATTACHMENT EXECUTED BY CLIENT AND ACCEPTED AND EXECUTED BY MANHATTAN AND
SUCH USE IS LIMITED TO THE INDICATED DESIGNATED PROCESSORS, LICENSED USERS, AND
DESIGNATED SITES, AS APPLICABLE. LICENSED PRODUCTS: TOTAL LICENSE FEES:
WAREHOUSE MANAGEMENT SYSTEM (WMS)
Outbound Distribution System (ODS) Inventory Management System (IMS)
Radio Frequency Functions (ODS) Task Management System (IMS)
Parcel Transportation Management System (ODS) Radio Frequency Functions (IMS)
Transportation & Freight Management System (ODS)
PERFORMANCE MANAGEMENT - REPORTING (MUST BE USED IN THE SAME DESIGNATED SITES
WITH WMS)
PERFORMANCE MANAGEMENT - EVENTS (MUST BE USED IN THE SAME DESIGNATED
SITES WITH WMS)
NUMBER OF LICENSED USERS: 100*
TOTAL SOFTWARE LICENSE FEES: [ * ]
*Client is licensed for one hundred (100) Licensed Users, however Client may
utilize up to two hundred (200) Licensed Users on a seasonal basis as defined in
Article II, Section 1(D) of the Addendum executed contemporaneously herewith.
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
<PAGE>
DESIGNATED SITE(S) DESIGNATED PROCESSOR(S) MODEL LICENSED USERS
(name & address) (Including Feature and Serial # if applicable) ALLOCATED
------------------ ---------------------------------------------- --------------
1 Columbus, OH Open Systems 100
---------------------------------------------------------------------------------------------------------
2
---------------------------------------------------------------------------------------------------------
3
---------------------------------------------------------------------------------------------------------
This Attachment, including its terms and conditions and the Agreement of which
it is a part, is a complete and exclusive statement of the agreement between the
parties relating to its subject matter, and which supersedes all prior or
concurrent proposals and understandings, whether oral or written, and all other
communications between the parties relating to its subject matter.
Notwithstanding anything to the contrary in the Agreement, in the event of a
conflict between this Attachment and the Agreement, this Attachment shall
prevail. All other terms and conditions remain unchanged and are ratified
hereby. This Attachment shall not be effective until executed by Client and
accepted and executed by the Chief Financial Officer, Chief Legal Officer or
Chief Executive Officer of Manhattan. By execution, signer certifies that signer
is duly authorized to execute this Agreement on behalf of Manhattan. Accepted by
Manhattan and effective as of
MANHATTAN ASSOCIATES, INC.
By /s/ EDWARD K. QUIBELL
------------------------
(Authorized Signature)
Edward K. Quibell
---------------------
(Print or Type Name)
Chief Financial Officer
------------------------
Title)
By execution, signer certifies that signer is duly authorized to execute this
Agreement on behalf of Client.
CLIENT
By /s/ JOHN W. ROBERTS
----------------------
(Authorized Signature)
/s/ JOHN W. ROBERTS, SVP TECH & OPS
-----------------------------------
(Print or Type Name and Title)
12/29/03
---------------
(Date Signed)
<PAGE>
[MANHATTAN ASSOCIATS LOGO]
2300 Windy Ridge Parkway
Atlanta, GA 30339
ATTACHMENT B -SUPPORT AND ENHANCEMENTS
Client: Red Envelope, Inc.
Address: 201 Spear Street, Ste 300
San Francisco, CA 94105
This Attachment B ("Attachment") to the Software License, Services, Support and
Enhancements Agreement ("Agreement") is made by and between Manhattan
Associates, Inc. ("Manhattan") and Client in consideration of their mutual
promises and subject to its terms and conditions. This Attachment amends the
Agreement dated ______________, as follows:
CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS - Manhattan provides to Client and
Client accepts, subject to the terms and conditions of the Agreement, Customer
Support and Software Enhancements as indicated below:
SELECT TYPE:
- CUSTOMER SUPPORT & SOFTWARE ENHANCEMENTS
- REINITIATION FEES $ ________________
TOTAL CUSTOMER SUPPORT AND SOFTWARE ENHANCEMENTS FEES [ * ]
This Attachment, including its terms and conditions and the Agreement of which
it is a part, is a complete and exclusive statement of the agreement between the
parties relating to its subject matter, and which supersedes all prior or
concurrent proposals and understandings, whether oral or written, and all other
communications between the parties relating to its subject matter.
Notwithstanding anything to the contrary in the Agreement, in the event of a
conflict between this Attachment and the Agreement, this Attachment shall
prevail. All other terms and conditions remain unchanged and are ratified
hereby. This Attachment shall not be effective until executed by Client and
accepted and executed by the Chief Financial Officer, Chief Legal Officer or
Chief Executive Officer of Manhattan. By execution, signer certifies that signer
is duly authorized to execute this Agreement on behalf of Manhattan. Accepted by
Manhattan and effective as of.
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
<PAGE>
MANHATTAN ASSOCIATES, INC.
By /s/ EDWARD K. QUIBELL
-------------------------
(Authorized Signature)
Edward K. Quibell
-----------------------
(Print or Type Name)
Chief Financial Officer
-----------------------
Title)
By execution, signer certifies that signer is duly authorized to execute this
Agreement on behalf of Client.
CLIENT
By /s/ JOHN W. ROBERTS
----------------------
(Authorized Signature)
/s/ JOHN W. ROBERTS, SVP TECH & OPS
-----------------------------------
(Print or Type Name and Title)
12/29/03
------------------
(Date Signed)