Exhibit 10.18
BUSINESS MANAGER AGREEMENT
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INTRODUCTION
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THIS BUSINESS MANAGER AGREEMENT, dated as of July 8, 1999 (as
the same may be supplemented, modified, amended, restated or replaced from time
to time in the manner provided herein, this "Agreement"), is by and between SPAR
INFOTECH, INC., a Nevada corporation currently having an address at 303 South
Broadway, Suite 140, Tarrytown, New York 10591 ("Infotech"), SPAR MARKETING
FORCE, INC., a Nevada corporation currently having an address at 303 South
Broadway, Suite 140, Tarrytown, New York 10591 ("Marketing Force"), and SPAR
MARKETING SERVICES, INC., a Nevada corporation currently having an address at
303 South Broadway, Suite 140, Tarrytown, New York 10591 ("SMS"). The above
entities are sometimes referred to herein individually as a "Party" and
collectively as the "Parties".
RECITALS
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The efforts of the Parties prior to the date of this Agreement
resulted in the creation of certain Confidential Information, Software and
Program Documentation (collectively referred to herein as the "Joint Works").
The Parties have determined that it is in their best interests to resolve any
existing or potential disputes concerning their respective rights in the Joint
Works, all upon the terms and provisions and subject to the conditions set forth
in this Agreement.
AGREEMENT
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In consideration of the foregoing, the mutual covenants and
agreements hereinafter set forth, and other good and valuable consideration (the
receipt and adequacy of which is hereby acknowledged by the Parties), the
Parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Each use in this Agreement of a neuter
pronoun shall be deemed to include references to the masculine and feminine
variations thereof, and vice versa, and a singular pronoun shall be deemed to
include a reference to the plural variation thereof, and vice versa, in each
case as the context may permit or require. As used in this Agreement, the
following capitalized terms and non-capitalized words and phrases shall have the
meanings respectively assigned to them below, which meanings shall be applicable
equally to the singular and plural forms of the terms so defined:
(a) "Business Competitive With Infotech" shall mean any
substantial business activity in collecting, analyzing and/or disseminating
scanner data, ex-factory shipment data and/or other similar information.
(b) "Business Competitive With Marketing Force" shall mean any
substantial business activity conducted by any person that is competitive with
any substantial business activity conducted by any SPAR Company or PIA Company
at the Merger Effective Time (whether or not such person's activity is actually
conducted in competition with any SPAR Company or PIA Company), excluding,
however, any Business Competitive With Infotech (whether or not so conducted by
any SPAR Company or PIA Company).
(c) "Confidential Information" includes all field and file
definitions and source code relating to the Software and the Program
Documentation (as each are hereinafter defined), including (without limitation)
the designs, methods, layouts, processing procedures, programming techniques
used or employed by the Parties, including combinations thereof, in conjunction
therewith, and encompass interactive data entry, file handling, report
generation and all other aspects of operation.
(d) "Merger Effective Time" shall mean the "Effective Time"
under (and as defined in) the Agreement and Plan of Merger dated as of February
28, 1999, among the SPAR Companies and the PIA Companies (which is the time the
merger thereunder takes effect and the
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SPAR Companies and PIA Companies come under common control), as the same may be
supplemented, modified, amended, restated or replaced from time to time in the
manner provided therein.
(e) "PIA Company" and "PIA Companies" shall respectively mean
any one or more of PIA MERCHANDISING SERVICES, INC., a Delaware corporation, SG
ACQUISITION, INC., a Nevada corporation (which is merging into SPAR Acquisition,
Inc.), PIA MERCHANDISING CO., INC., a California corporation, and their
respective subsidiaries as of the Merger Effective Time.
(f) "Program Documentation" means the user manuals, handbooks
and other written materials relating to the Software, and any subsequent updates
or revisions to such scheduling software.
(g) "Representative" of any Party shall mean any of its
directors, officers, employees, attorneys, heirs, executors, administrators, or
agents, any of such Party's sublicensees, affiliates, successors and assigns, or
any of their respective directors, officers, employees, attorneys, heirs,
executors, administrators, or agents.
(h) "Software" means the application software program(s)
respecting the "Business Manager" Internet scheduling software consisting of
executable object code programs for such scheduling software and related screen
formats programmed to operate on the systems of the Parties, and any subsequent
updates or revisions to such scheduling software.
(i) "SPAR Company" and "SPAR Companies" shall respectively
mean any one or more of SPAR ACQUISITION, INC., a Nevada corporation, SPAR
MARKETING, INC., a Delaware corporation, SPAR MARKETING, INC., a Nevada
corporation, SPAR MARKETING FORCE, INC., a Nevada corporation, SPAR, INC., a
Nevada corporation, SPAR/BURGOYNE RETAIL SERVICES, INC., an Ohio corporation,
SPAR INCENTIVE MARKETING, INC., a Delaware corporation, SPAR MCI PERFORMANCE
GROUP, INC., a Delaware corporation, and SPAR TRADEMARKS, INC., a Nevada
corporation.
Section 2. THE JOINT WORKS; FUTURE DEVELOPMENT; SUBLICENSES;
LIMITS ON USE.
(a) The Parties as Co-Owners of the Joint Works. In
consideration for the promises made to it under this Agreement, each Party
hereby grants and conveys to the other any and all right, title and interest in
and to the Joint Works that it may have as may be required to render any other
Party a co-owner of the Joint Works. Each party hereby acknowledges and agrees
that each party is now and at all times has been a co-owner of all right, title
and interest in and to the Joint Works, including (without limitation), the
United States and international copyright interests therein, and any and all
moral rights in the Joint Works recognized by applicable law, such that the
Parties each has and shall each continue to have, for any and all purposes, the
right to transfer, develop, license, control and otherwise exploit the Joint
Works, in whole or in any part, as each of them may see fit, in any and all
media subject to the terms and conditions set forth in this Agreement. Each
party covenants and agrees that it shall in all future publications of the Joint
Works, refer to its author as "SPAR Infotech, Inc., SPAR Marketing Force, Inc.
and SPAR Marketing Services, Inc." and state its copyright as "(C) [Date of
Publication] SPAR Infotech, Inc., SPAR Marketing Force, Inc. and SPAR Marketing
Services, Inc." "All rights reserved."
(b) Waiver of Claims and Rights of Participation and
Accounting. Each of the Parties hereby knowingly and intentionally waives
whatever claims it may now have or may ever have against the other Parties and
their respective Representatives for any claim related to rights of exploitation
of the Joint Works, including (without limitation) claims for authorship or
copyright infringement. Each of the Parties knowingly and intentionally waives
any and all claims or rights that it may have or may ever have against the other
Parties and their respective Representatives for
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any right of participation in, or accounting for, the revenues that the other
party may derive from its use or exploitation of the Joint Works, in whole or in
part, without limitation.
(c) Future Development. The Parties acknowledge and agree that
any Party may engage any other Party from time to time to provide programming
services, system work and other assistance in developing, revising and improving
the Software and/or the Program Documentation, which shall be deemed and
construed to be for the benefit of all of the Parties. The Parties agree that
their respective contributions to all such improvements, revisions and
developments shall be included within the scope of the term "Software" and the
term "Program Documentation," respectively, as such terms are used in this
Agreement and shall not be the sole property of any Party hereto.
(d) Sublicenses. Each Party from time to time may add one or
more subsidiaries or affiliates (but only those under common ownership and
control with the Parties) as a sublicensee under this Agreement (each a
"Sublicensee" and collectively "Sublicensees"). Each Sublicensee hereby assumes
and agrees to be bound by the terms, provisions and conditions as set forth in
this Agreement as if it were a "Party" hereunder. In the event the control or
ownership of any Sublicensee, its business or substantially all of its assets
are sold or transferred so that such Sublicensee, business or assets cease to be
under common ownership and control with the sublicensing Party, such subsidiary
or affiliate shall automatically cease to be a Sublicensee hereunder from and
after such sale or transfer, without, however, relieving or otherwise affecting
any of the obligations of such former Sublicensees with respect to its
obligations with respect to actions or events arising prior to such sale or
transfer.
(e) Certain Limits on Use by Parties. Neither Infotech nor any
of its Sublicensees shall use the Software or the Program Documentation in any
material respect in any Business Competitive With Marketing Force; and neither
Marketing Force nor SMS nor any of their respective Sublicensees shall use the
Software or the Program Documentation in any material respect in any Business
Competitive With Infotech. The Parties acknowledge and agree that such
limitation shall not preclude any Party or its Sublicensees from using the
Software and the Program Documentation for any other purpose whatsoever (subject
to the licensing limitations of Section 5 hereof).
(f) No Unpermitted Users. No Party shall cause, suffer or
permit any of its affiliates or cause or enable any other person to use the
Software or the Program Documentation in any material respect unless such person
is a permitted Licensee or Sublicensee hereunder.
Section 3. TERM. The term of this Agreement shall be
perpetual.
Section 4. MUTUAL EXCULPATION AND RELEASE. No Party nor any of
its Representatives shall incur any liability to any other Party or any of its
Representatives for any acts or omissions arising out of or related directly or
indirectly to any of the Software, Program Documentation or Confidential
Information, any license, use or application thereof, or any claims or actions
(including, without limitation, claims for malfunction or infringement) and any
resulting losses or expenses with respect thereto of any Party or any of their
respective Representatives of any kind or nature whatsoever, whether known or
unknown, in law or equity or otherwise; and each Party (on behalf of itself and
each of its Representatives) hereby expressly waives any and all such claims,
actions, losses and expenses against each of the releasing Party and its
Representatives ever had, now have or hereafter can, shall or may have, against
the each other Party and its Representatives by reason of any matter, cause or
thing whatsoever from the beginning to the end of the world; provided, however,
that the foregoing release shall not apply to the Parties' respective
obligations set forth in this Agreement.
Section 5. THIRD PARTY LICENSING.. Subject to the terms and
conditions herein contained, each Party (but not its Sublicensees) may grant
licenses to make, use or sell the
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Software and Program Documentation (a "License") to one or more third parties
(each a "Licensee" and collectively "Licensees") on such terms and conditions as
such Party may elect, provided, however, that (a) Infotech shall not grant any
License to make, use or sell the Software or the Program Documentation to any
Licensee whose business is a Business Competitive With Marketing Force; and (b)
neither Marketing Force nor SMS shall grant any License to make, use or sell the
Software or the Program Documentation to any Licensee whose business is a
Business Competitive With Infotech.
Section 6. REPRESENTATIONS AND WARRANTIES RESPECTING THE
PARTIES. Each Party represents and warrants to the each of the other Parties
that, as of the date hereof that: (a) such Party is a corporation duly
incorporated, validly existing and in good standing under the laws its state of
incorporation; (b) such Party has the legal capacity, power, authority and
unrestricted right to execute and deliver this Agreement and to perform all of
its obligations hereunder; (c) the execution and delivery by such Party of this
Agreement and the performance by such Party of all of its obligations hereunder
will not violate or be in conflict with any term or provision of (i) any
applicable law, (ii) any judgment, order, writ, injunction, decree or consent of
any court or other judicial authority applicable to such Party or any material
part of such Party's assets and properties, (iii) any of its organizational
documents, or (iv) any material agreement or document to which such Party is a
party or subject or that applies to any material part of such Party's assets and
properties; (d) no consent, approval or authorization of, or registration,
declaration or filing with, any governmental authority or other person is
required as a condition precedent, concurrent or subsequent to or in connection
with the due and valid execution, delivery and performance by such Party of this
Agreement or the legality, validity, binding effect or enforceability of any of
the terms and provisions of this Agreement; and (e) this Agreement is a legal,
valid and binding obligation of such Party, enforceable against such Party in
accordance with its terms and provisions.
Section 7. RELATIONSHIP AMONG THE PARTIES. No term or
provision of this Agreement is intended to create, nor shall any such term or
provision be deemed or construed to have created, any employment, joint venture,
partnership, trust, agency or other fiduciary relationship between the Parties
and no Party shall be considered as an employee, joint venturer, partner,
trustee, agent or other representative for or of any other Party. No Party shall
not be entitled or have any power or authority to bind or obligate any other
Party in any manner whatsoever or to hold itself out as an employee, joint
venturer, partner, trustee, agent or other representative of any other Party.
Section 8. WAIVER OF JURY TRIAL. In any action, suit or
proceeding in any jurisdiction brought against any Party by any other Party,
each Party hereby irrevocably waives trial by jury.
Section 9. CONSENT TO NEW YORK JURISDICTION AND VENUE, ETC.
Each Party hereby consents and agrees that the Supreme Court of the State of New
York for the County of Westchester and the United States District Court for the
Southern District of New York each shall have personal jurisdiction and proper
venue with respect to any dispute between the Parties; provided that the
foregoing consent shall not deprive any Party of the right in its discretion to
voluntarily commence or participate in any other forum having jurisdiction and
venue. In any dispute, no Party will raise, and each Party hereby expressly and
irrevocably waives, any objection or defense to any such jurisdiction as an
inconvenient forum.
Section 10. NOTICES. Except as otherwise expressly provided,
any notice, request, demand or other communication permitted or required to be
given under this Agreement shall be in writing, shall be sent by one of the
following means to the addressee at the address set forth above (or at such
other address as shall be designated hereunder by notice to the other parties
and persons receiving copies, effective upon actual receipt) and shall be deemed
conclusively to have been given: (i) on the first business day following the day
timely deposited with Federal
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Express (or other equivalent national overnight courier) or United States
Express Mail, with the cost of delivery prepaid or for the account of the
sender; (ii) on the fifth business day following the day duly sent by certified
or registered United States mail, postage prepaid and return receipt requested;
or (iii) when otherwise actually received by the addressee on a business day (or
on the next business day if received after the close of normal business hours or
on any non-business day).
Section 11. FURTHER ASSURANCES. Each Party agrees to do such
further acts and things and to execute and deliver such statements, assignments,
agreements, instruments and other documents as the other Party from time to time
reasonably may request in order to effectuate the purpose and the terms and
provisions of this Agreement, each in such form and substance as may be
acceptable to the Parties. Without limiting the generality of the foregoing,
each Party hereto will provide each other Party hereto, at such other Party's
request and expense, with copies of the source or object code version of the
Software and any and all related documentation to enable such requesting Party
to develop and enhance the Software and the Program Documentation.
Section 12. INTERPRETATION, HEADINGS, SEVERABILITY, ETC. The
Parties acknowledge and agree that the terms and provisions of this Agreement
have been negotiated, shall be construed fairly as to all parties hereto, and
shall not be construed in favor of or against any party. The section headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement. In the event that any term or
provision of this Agreement (other than Section 1 hereof) shall be finally
determined to be superseded, invalid, illegal or otherwise unenforceable
pursuant to applicable law by a governmental authority having jurisdiction and
venue, that determination shall not impair or otherwise affect the validity,
legality or enforceability (a) by or before that authority of the remaining
terms and provisions of this Agreement, which shall be enforced as if the
unenforceable term or provision were deleted or reduced pursuant to the next
sentence, as applicable, or (b) by or before any other authority of any of the
terms and provisions of this Agreement. If any term or provision of this
Agreement is held to be unenforceable because of the scope or duration of any
such provision, the Parties agree that any court making such determination shall
have the power, and is hereby requested, to reduce the scope or duration of such
term or provision to the maximum permissible under applicable law so that said
term or provision shall be enforceable in such reduced form.
Section 13. SUCCESSORS AND ASSIGNS; ASSIGNMENT; INTENDED
BENEFICIARIES. Whenever in this Agreement reference is made to any person, such
reference shall be deemed to include the successors, assigns, heirs and legal
representatives of such person, and, without limiting the generality of the
foregoing, all representations, warranties, covenants and other agreements made
by or on behalf of any Party in this Agreement shall inure to the benefit of the
successors, assigns, heirs and legal representatives of each other Party;
provided, however, that nothing herein shall be deemed to authorize or permit
any Party to assign any of its rights or obligations under this Agreement to any
other person, and each Party covenants and agrees that it shall not make any
such assignment, except as otherwise provided in Section 5 hereof or with the
prior written consent of the other Parties. The representations, warranties and
other terms and provisions of this Agreement are for the exclusive benefit of
the Parties hereto, and, except as otherwise expressly provided herein, no other
person (including creditors of any party hereto) shall have any right or claim
against any Party by reason of any of those terms and provisions or be entitled
to enforce any of those terms and provisions against any Party.
Section 14. NO WAIVER BY ACTION, ETC. Any waiver or consent
respecting any representation, warranty, covenant or other term or provision of
this Agreement shall be effective only in the specific instance and for the
specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of a Party at any time or times to require performance of, or to exercise
its rights with respect to, any representation, warranty, covenant or other term
or provision of this Agreement in
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no manner (except as otherwise expressly provided herein) shall affect its right
at a later time to enforce any such provision. No notice to or demand on any
Party in any case shall entitle such Party to any other or further notice or
demand in the same, similar or other circumstances. All rights, powers,
privileges, remedies and other interests of each Party hereunder are cumulative
and not alternatives, and they are in addition to and shall not limit (except as
otherwise expressly provided herein) any other right, power, privilege, remedy
or other interest of such Party under this Agreement or applicable law.
Section 15. COUNTERPARTS; NEW YORK GOVERNING LAW; AMENDMENTS;
ENTIRE AGREEMENT. This Agreement shall be effective as of the date first written
above when executed by all of the Parties. This Agreement may have been executed
in two or more counterpart copies of the entire document or of signature pages
to the document, each of which may be executed by one or more of the Parties
hereto, but all of which, when taken together, shall constitute a single
agreement binding upon all of the Parties hereto. This Agreement shall be
governed by and construed in accordance with the applicable laws pertaining in
the State of New York (other than those that would defer to the substantive laws
of another jurisdiction). Each and every modification and amendment of this
Agreement shall be in writing and signed by all of the Parties, and each and
every waiver of, or consent to any departure from, any representation, warranty,
covenant or other term or provision of this Agreement shall be in writing and
signed by each affected Party. This Agreement contains the entire agreement of
the parties and supersedes all prior and other representations, agreements and
understandings (oral or otherwise) between the parties with respect to the
matters contained herein.
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[Signature Page to Business Manager Agreement]
IN WITNESS WHEREOF, the Parties have duly executed and
delivered this Agreement as of the date first above written.
SPAR INFOTECH, INC.
By:/s/ Robert G. Brown
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Robert G. Brown
Chief Executive Officer
SPAR MARKETING FORCE, INC.
By:/s/ Robert G. Brown
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Robert G. Brown
Chief Executive Officer
SPAR MARKETING SERVICES, INC.
By: /s/ Robert G. Brown
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Robert G. Brown
Chief Executive Officer
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