SERVICES AND SOFTWARE LICENSE AGREEMENT
Exhibit
10.4
(Hereafter
referred to as “GMS”)
And
_________________________________________________
(Hereafter referred to as
“Client”) have agreed as follows:
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1.
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DEFINITIONS
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1.1.
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“ManageThePipe”
(hereafter referred to as “MTP”) means a turnkey replenishment solution
provided to client and major retailers comprised of a software (the ManageThePipe software
or MTPS), a database, a browser interface, the required hardware and
services, provided by GMS to the
Client;
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1.2.
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“ManageThePipe software”
(hereafter referred to as “MTPS”) means the software or computer program
comprise of a set of instructions or statements, expressed, fixed,
embodied or stored in any manner, including the source and object code,
that is used to bring about the specific result as specified in the MTP’s
or GMS documentation, containing the data from the Client and the retailer
as provided for and formatted by
GMS;
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1.3.
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“Retailer” means Client’s
trading partner who sells or distributes Client’s items to mass
consumers;
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1.4.
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“Dedicated Network
Server” (hereafter referred to as “DNS”) means the server which is
part of the intranet or network of the Client and linked through the
Internet or other network to other computers of GMS and the
Client;
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2.
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NON-EXCLUSIVE
LICENCE GRANTED
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2.1.
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Upon
payment of the fees provided hereafter, GMS hereby grants to Client the
right to access and use, pursuant to the provisions of this Agreement,
MTPS on the DNS for the purpose of conducting queries and obtaining
printed or electronic copies of query results the rights to a backup
system which may simultaneously or alternatively run within or without the
DNS, the right to use the documentation provided by GMS and the right to
copy MTPS for archival or backup purposes.
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2.2.
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All
copyrights, trade secrets and other proprietary rights, in MTPS and MTP,
together with related documentation, shall remain the property of
GMS.
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2.3.
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Except
for archival or backup purposes, Client shall not copy or allow his
employee, agent or third party to copy MTPS or documentation that is
subject to the said proprietary
rights.
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2.4.
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Client
agrees not to cause or permit the reverse engineering, disassembly or
decompilation of MTPS, except to the extent required to obtain
interoperability with other independently created software or as specified
by law. Client may not give, relicense, rent or lease MTPS or use MTPS for
third-party training, commercial time-sharing or service bureau use,
whether for any form of consideration or for
free.
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3.
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BASIC
AND TECHNICAL SUPPORT SERVICES
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3.1.
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Upon
payment of the fees and subject to the terms and conditions in Schedule A,
GMS shall provide Client with a copy of MTPS, as well as turnkey
installation of the software on the DNS. GMS will supply the Client,
provided license and technical support fees have been paid, the
following:
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3.1.1.
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System
upgrades, including on-going improvements in the developments and
functionality of MTPS, based on its technical performance only. Features
upgrades will be invoiced separately to the Client upon
order.
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3.1.2.
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Updates
to changes in Retailer data format used by the
Client.
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3.2.
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Upon
payment of the fees, GMS shall provide Client with supplementary technical
support services as provided for in Schedule A and B incorporated
herein.
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3.3.
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GMS
will provide consulting and training services agreed to by the parties
under the terms of this Agreement. All consulting services shall be billed
on a time and materials basis unless the parties expressly agree otherwise
in writing.
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3.4.
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For
any on-site services requested by Client, Client shall reimburse GMS for
actual, reasonable travel and out-of-pocket expenses approved in advance
by Client.
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4.
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ACCESS
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4.1.
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The
license of MTPS will grant access to users based on the number of user
access licenses purchased. Each user shall have its own personal
identification number and password to access
MTPS.
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4.2.
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Client
shall provide, at his own expense, GMS with unrestricted and unlimited
access to the installed MTPS on the DNS in order to allow GMS to perform
the services. In the case of direct physical access, such access shall be
within reason during normal business hours and with 24 hours advanced
notice outside of normal business
hours.
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GMS
Retail Systems Inc.
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5.
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CONFIDENTIALITY
UNDERTAKINGS BY BOTH PARTIES
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5.1.
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For
the purposes of this Agreement, “Confidential Information” shall mean
information received by the parties’ employees or agents that is not
generally known to the receiving party, or which would logically be
considered confidential and/or “Proprietary” by the disclosing party. In
the case of GMS, "Confidential Information", includes proprietary
information relating to or derived from the design of MTPS and MTP
systems; MTPS, research, development, plans and processes related thereto,
as well as all business strategies, architecture, business practices and
processes, pricing under this agreement including for license and
services, and plans for the future of GMS. In the case of the Client,
"Confidential Information" includes proprietary information relating to or
derived from the Client's data or from data received from Retailers,
identification numbers and passwords, and all confidential information
relating to the Client's business, products, business strategies, business
practices and processes, as well as research, development, and plans for
the future.
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5.2.
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During
the term of this Agreement and thereafter for a period of five years after
disclosure of the Confidential Information or for a period of two years
after termination of this Agreement, whichever is earlier all confidential
information shall remain in confidence by the parties’ employees and
agents and shall not be disclosed to or through any third party and shall
be protected with the same degree of care as the parties normally use in
the protection of their own confidential and proprietary Information. The
parties further agree not to use confidential and/or proprietary
information received from the other party for any purpose, except as is
necessary for the parties to fulfill their business obligations under this
Agreement.
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5.3.
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The
restrictions herein shall not apply with respect to confidential
information 1- which is already available to the public, 2- becomes
available to the public through no fault of one of the parties employees
or agents, or 3- is already known to one of the parties as shown by
written records in such party’s possession at the time that the
confidential information was received from the other
party.
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5.4.
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Nothing
in this Agreement shall be construed to grant Client a license to any
Confidential Information disclosed or to any patents, patent applications
or copyrights derived from the Confidential Information disclosed. Client
specifically agrees and understands that the MTPS and all products, trade
secrets or any of the ideas and expressions related to MTPS and MTP and
all physical embodiments thereof and material developed in relation
thereto by GMS are and shall remain the property of GMS. Software
developed independently by Client for its own internal use in processing
and integrating data received through the ManageThePipe remain the
property of Client. Such software shall remain confidential under the
terms of this Agreement.
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6.
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TERMS
AND CONDITIONS
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6.1.
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Services
will be invoiced according to the current posted price schedule at the
time of invoicing
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6.2.
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Travel
and other expenses will be invoiced where
applicable.
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6.3.
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Invoices
are due payable upon receipt. All unpaid sums shall bear interest of 1%
per month or 12% per year calculated on a daily basis until payment is
made as of the date of invoicing subject that any sum paid within 30 days
of the invoicing date shall bear no
interest.
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6.4.
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Price
schedule may change from time to time. GMS will provide 30 days prior
notice of all changes in posted price
schedule.
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6.5.
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The
fee schedule does not include
taxes.
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7.
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TERM
AND TERMINATION
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7.1.
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This
agreement shall commence as of the date it is signed by all parties. If
not otherwise specified, this Agreement and each Application license
granted under this Agreement shall continue in perpetuity unless
terminated under this Agreement.
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7.2.
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During
the first six months, either party may terminate this Agreement upon
thirty (30) days prior written notice to the other party. After the first
six months, this Agreement is automatically renewed for three years
periods. At the end of any three year period, either party may terminate
this Agreement upon 90 days prior written notice to the other party.
However, termination shall not relieve their obligations in Article 2, 5,
7 and 9.
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7.3.
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GMS
may terminate this Agreement by written notice to Client, effective
immediately if:
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7.3.1.
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Client
commits any default or breach under this
agreement;
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7.3.2.
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Client
fails to pay any moneys due on the due date or neglects or fails to
perform or observe any other provision of this Agreement, which is not
cured within thirty (30) days following written notice from GMS;
or
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7.3.3.
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Client
becomes insolvent or voluntarily
bankrupt;
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GMS
Retail Systems Inc.
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Tel:
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7.3.4.
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An
involuntary petition in bankruptcy against Client is not dismissed within
ninety (90) calendar days of
filing;
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7.3.5.
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A
receiver, assignee or other liquidating officer is appointed for all or
substantially all of Client’s
business;
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7.3.6.
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Client
makes an assignment for the benefit of creditors;
or
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7.3.7.
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Client
ceases to carry on business in the normal
course.
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7.4.
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Upon
termination of this Agreement by either party for any reason, Client shall
immediately cease using MTPS and return to GMS the original and all copies
of the software or related materials licensed pursuant to this Agreement
and shall delete or destroy any electronic copies made of such materials,
which cannot be returned to GMS. Client shall certify in writing its
compliance with this provision. To that effect, Client authorizes GMS to
examine the DNS remotely or physically and to remove the said property
provided GMS make sure that Client’s property is not damaged by doing so
and take all necessary measure to protect Client’s property. Upon
termination of this Agreement, GMS shall be entitled to retain all monies
paid to it by Client and shall be entitled to claim and receive all monies
owing to it by Client, without prejudice to any other rights and remedies
which GMS may have as a result of said
termination.
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8.
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WARRANTIES
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8.1.
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INTELLECTUAL
PROPERTY WARRANTY GMS warrants that it has the right to provide the Client
with a copy of and use of MTPS and, where applicable, to grant the Client
the license to use the Software. GMS will defend and indemnify Client
against any, cost, expense (including reasonable attorneys fees incurred
as a result of any third party claim that MTPS infringe a copyright,
patent, trade secret or other intellectual property right, provided that:
(a) Client notifies GMS in writing within thirty (30) days of the claim;
(b) GMS has sole control of the defense and all related settlement
negotiations; and (c) Client provides GMS with the assistance, information
and authority necessary to perform GMS's obligations under this Section.
GMS will reimburse Client's reasonable out-of-pocket expenses incurred in
providing such assistance. GMS shall have no liability for any claim of
infringement based on use of a superseded or altered release of MTPS if
the infringement would have been avoided by the use of a current unaltered
release of MTPS provided that GMS has provided such release prior to the
date of alleged infringement without charge to Client. If MTPS is held or
believed by GMS to infringe, GMS shall have the option, at its expense, to
(a) modify MTPS to be non-infringing; or (b) obtain for Client a license
to continue using MTPS. If it is not commercially reasonable to perform
either of the above options, then GMS may terminate the license for the
infringing Applications and refund the license fees paid for MTPS,
prorated over a two (2) year term from the date of this Agreement. This
section states GMS's entire liability and Client's exclusive remedy for
infringement
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8.2.
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PERFORMANCE WARRANTY GMS
warrants for a period of one (1) year from the Commencement Date that each
MTPS license will perform substantially as described in the Documentation
(unless modified by a party other than GMS in which case this warranty is
void.) GMS warrants for a period of one (1) year from the delivery of any
Upgrade, Patch or Enhancement (as defined under this Agreement) that such
Upgrade, Patch or Enhancement will perform substantially as described in
the Documentation therefore if any.
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8.3.
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MEDIA WARRANTY GMS
warrants the tapes, diskettes or other media to be free of material
defects in materials and workmanship under normal use for ninety (90) days
from the Commencement Date.
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8.4.
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SERVICES WARRANTY GMS
warrants that its Technical Support, training and consulting services will
be performed consistent with generally accepted industry standards. This
warranty shall be valid for ninety (90) days from performance of
service.
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8.5.
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OTHER WARRANTY. Hardware
and software manufactured and sold by third parties are covered by these
manufacturers and third parties and are not subject to any warranty by
GMS.
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8.6.
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DISCLAIMERS The
warranties above are exclusive and in lieu of and GMS disclaims all other
warranties, whether express or implied, including the implied warranties
of merchantability and fitness for a particular purpose. In no event shall
GMS be liable for any indirect, incidental, special or punitive damages
occurring out of or in connection with the delivery, use or performance,
or failure thereof, of the service, Software or ManageThePipe software,
the Retailer or Client Database. GMS does not warrant that the service,
Software or ManageThePipe software will perform uninterrupted or error
free, that any deficiency can or will be corrected, or that the functions
or performance of the service, Software or ManageThePipe software will
meet Client’s requirements. Client is solely responsible for the
formulation of all searches on ManageThePipe and the results
obtained.
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8.7.
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The
information provided through the service or contained in MTPS shall be
obtained from sources considered by GMS to be reliable, but the accuracy,
currency and completeness thereof are not guaranteed and GMS shall have no
liability for any inaccuracies, errors or omissions with respect to the
information provided through the service or contained in MTPS regardless
of the source or cause of any such error or
omission.
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GMS
Retail Systems Inc.
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Tel:
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8.8.
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If
the service, Software or ManageThePipe software provided by or operated or
distributed by GMS malfunctions or fails to perform properly or at all,
and the malfunction or failure is a cause of inadequate results obtained
by the Client, then Client’s exclusive remedy and the total liability of
GMS shall be limited to providing sufficient access to reiterate the query
during which the malfunction, failure or negligence
occurred.
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8.9.
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In
no event will GMS’s cumulative liability for any claim arising out of or
in connection with this Agreement, exceed the amounts paid by Client to
GMS in the previous 12 month period preceding the date of occurrence of
the event leading to said claim.
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9.
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GENERAL
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9.1.
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GMS
may from time to time, and in its sole discretion, change the content or
format of MTPS in accordance with general changes made to its standard
service offering. The terms, conditions and fees applicable to use of MTPS
may be changed from time to time upon reasonable notice to Client if any
increase in fees shall be reasonably justified by
GMS.
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9.2.
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This
Agreement and any rights arising out of this Agreement may not be assigned
in whole or in part by Client without the written consent of GMS. Such
consent will not be unreasonably withheld. In the event of a change of
ownership of the Client, this agreement can be assigned to the new
owner.
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9.3.
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This
Agreement constitutes the entire Agreement between the parties hereto
pertaining to the subject-matter hereof and supersedes all prior
agreements, understandings, representations, negotiations and discussions,
whether oral or written, of the parties hereto, and there are no
warranties, representations or other agreements between the parties hereto
in connection with the subject-matter hereof except as specifically set
forth herein. No waiver, alteration or amendment of this Agreement or any
Schedule shall be effective unless in writing and authorized in writing by
an authorized representative of GMS. The terms and conditions in this
Agreement shall prevail notwithstanding any variance with the terms and
conditions of any order submitted by
GMS.
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9.4.
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GMS
shall not be liable for any default or delay resulting from circumstances
beyond its reasonable control or in case of Force
majeure.
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9.5.
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Since
unauthorized use or disclosure of the Software, the service or MTPS could
result in the violation of the copyright, proprietary rights, and/or trade
secrets interests that are embodied in same, if Client breaches any of
Client’s obligations with respect to limited use of same GMS will be
entitled to all remedies available at law to protect its interests
therein, including but not limited to injunctive relief as well as money
damages.
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9.6.
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GMS
may utilise electronic means to provide Client with notice of changes to
the applicable terms and conditions or applicable fees set out in this
Agreement. GMS may also propose the formation of new agreements through
electronic means. The assent to such contracts through electronic means by
Client or any user utilising Client’s identification and associated
password shall be equivalent to Client’s written signature, and Client
agrees to be bound to such
agreement.
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9.7.
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The
terms of this Agreement shall be construed according to the laws and shall
be subject to the exclusive jurisdiction of the courts of the Province of
Quebec, Canada. Client agrees to commence any action relating to or
arising from this Agreement in such
courts.
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9.8.
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Any
terms which by their nature are intended to survive the termination of
this Agreement shall continue in full force and effect after termination,
which terms shall include, but not be limited to Article 5
(Confidentiality), Article 8 (Disclaimer of Warranties; Limitation of
Liability) and Article 9 (General).
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9.9.
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The
invalidity or unenforceability of any provision or covenant in this
Agreement shall not affect the validity or enforceability of any other
provision or covenant herein contained, and this Agreement shall be
construed as if such invalid or unenforceable provision or covenant were
omitted.
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9.10.
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The
waiver by either party of any default of breach of this Agreement shall
not constitute a waiver of any other or subsequent default or breach.
Except for actions for nonpayment or breach of GMS's proprietary rights in
MTPS, no action, regardless of form, arising out of this Agreement may be
brought by either party more than two years after the cause of the action
has accrued.
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9.11.
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All
notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by registered mail to the following
address:
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Client
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360
St-Jacques O, suite 1815
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Street
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Montreal,
PQ 2Y 1P5
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City
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Telephone
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Fax
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Email
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9.12.
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The
parties hereby confirm their express will that this Agreement and all
documents relating thereto be drawn up in English only, but without
prejudice to any such documents or instruments which may from time to time
be drawn up in French only, or in both French and English. Les parties aux
présentes confirment leur volonté que le présent contrat de même que tous
autres documents s’y rapportant soient rédigés en anglais seulement, mais
sans préjudice cependant à tous tels documents qui pourront à l’occasion
être rédigés en français seulement ou à la fois en français et en
anglais.
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GMS
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CLIENT
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PER
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PER
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TITLE
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TITLE
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DATE
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DATE
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GMS
Retail Systems Inc.
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Tel:
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