EXHIBIT NO. 10.3
SOFTWARE PURCHASE AND LICENSE AGREEMENT
BETWEEN THE COMPANY AND TRIMAX INC.
DATED AUGUST 14, 1998
Software Purchase and License Agreement
THE CHILDREN'S PLACE
Trimax Inc.
Software Purchase and License Agreement
CUSTOMER: THE CHILDREN'S PLACE, Inc.
ADDRESS: ONE DODGE DRIVE
WEST CALDWELL, NJ
07006
This Software Purchase and License Agreement between THE CHILDREN'S PLACE, Inc.
(THE CHILDREN'S PLACE) and Trimax Inc. (TRIMAX) contains the general terms under
which THE CHILDREN'S PLACE will acquire software and services from TRIMAX. The
Addendum associated with this Purchase Agreement contains specific terms related
to this Agreement.
THE CHILDREN'S PLACE, Inc. TRIMAX Inc.
BY: /s/ Edward De Martino BY: /s/ Ian Rawlins
NAME: Edward De Martino NAME: Ian Rawlins
TITLE: Vice President MIS TITLE: Executive Vice President
DATE: August 4, 1998 DATE: August 14, 1998
1.0 DEFINITIONS
As used in this Purchase Agreement:
1.1 "Agreement" refers to this Purchase and License Agreement which shall
commence on the day hereof and will continue as long as THE CHILDREN'S
PLACE desires to use the software.
1.2 "Addendum" refers to an addendum to this Purchase Agreement that THE
CHILDREN'S PLACE and TRIMAX have executed and that is in effect.
1.3 "TRIMAX Software" or "Software" refers to the computer programs, which
includes the modules or components performing the functions and complying
with the descriptions, proposals and specifications set forth in Schedule
A annexed hereto, and related documentation, which consists of all
materials, training materials, guides, Commentary, listings and other
materials for use in conjunction with the computer programs, that TRIMAX
furnishes to THE CHILDREN'S PLACE under the terms of this Agreement and
the Addendum.
1.4 "Services" refers to the services that TRIMAX furnishes to THE CHILDREN'S
PLACE under the terms of this Agreement.
1.5 "Commentary" refers to the available documentation of the source code form
of the program.
1.6 "Hardware" refers to the computer and related equipment on which the
Software is to be run as specified in Schedule B annexed hereto.
2.0 PRICES AND FEES
2.1 The prices and fees for the Software to be licensed hereunder will be as
set forth in the Addendum attached hereto and made a part hereof.
3.0 TAXES
3.1 Prices and fees do not include any federal, state or local, use or other
taxes in respect of the sale, license, or use of the software or on the
provision of services. THE CHILDREN'S PLACE agrees to pay any taxes, or
reimburse TRIMAX for any taxes TRIMAX is required to pay in respect of the
sale or use of the software and services except for taxes based on
TRIMAX's net income or corporate profits.
4.0 DELIVERY
4.1 Delivery of software will be made to THE CHILDREN'S PLACE's head office
facilities as designated by THE CHILDREN'S PLACE.
4.2 THE CHILDREN'S PLACE will be responsible for all delivery charges to ship
the software to THE CHILDREN'S PLACE's designated facilities.
5.0 PAYMENT
5.1 For the first 250 stores of this project, THE CHILDREN'S PLACE will make
payments for software to TRIMAX as follows:
Upon signing of this agreement $100,000
Upon successful completion and acceptance of THE
CHILDREN'S PLACE five (5) pilot stores $ 50,000
Upon 90 days after THE CHILDREN'S PLACE pilot
stores acceptance $200,000
Upon successful rollout of first 50 stores $140,000
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Total TRIMAX Software for first 250 stores $490,000
For each store installed after the initial 250 stores, THE CHILDREN'S
PLACE will purchase a store license as listed in the addendum.
5.2 Software modifications, if required, will be billed at the prevailing
TRIMAX time and materials rate based on a solicitation and quotation
basis. Software modification fees are payable in three installments - 20%
at the start of modifications, 30% at lab installation and 50% upon
acceptance by THE CHILDREN'S PLACE of the modifications.
5.3 TRIMAX expenses related to lab, pilot and store installations in pilot
stores including air travel, hotel, food and miscellaneous expenses if
any, will be billed separately with no markup with payment due 30 days
from receipt of invoice. Such expenses will be subject to the prior
written approval of THE CHILDREN'S PLACE.
6.0 INSTALLATION SERVICES / MODIFICATIONS
6.1 TRIMAX will perform the initial lab installation at THE CHILDREN'S PLACE's
head office as part of the standard TRIMAX project management services.
The initial lab installation shall include:
a) Lab Equipment setup and Software setup
b) Training of three (3) THE CHILDREN'S PLACE's technicians on the use
and operation of the Software on the Hardware, including instruction
in any necessary conversion of THE CHILDREN'S PLACE's data for such
use
c) TRIMAX work with THE CHILDREN'S PLACE Mainframe personnel to
identify record layouts needed by the transaction log conversion
program
TRIMAX will also provide other regular project management and related
services (eg. Configurator definitions, train-the-trainer training, etc.)
to achieve installation of the software in pilot stores. These project
management services as defined hereunder, will be billed at $1,100 per day
plus related expenses.
6.2 TRIMAX software will perform the functions as documented in our Reference
Documentation. The Software shall be deemed to include all such
modifications for all purposes hereunder. In the event that THE CHILDREN'S
PLACE requires modifications to the Software due to changes in THE
CHILDREN'S PLACE's business rules and requirements due to business rules
and requirements created subsequent to the date hereof ("business
modifications"), and THE CHILDREN'S PLACE accepts such business
modifications, THE CHILDREN'S PLACE shall pay charges for all such
business modifications as provided in Section 5.2 above.
While THE CHILDREN'S PLACE acknowledges that modifications may be subject
to development charges, TRIMAX will attempt to minimize development
charges in providing THE CHILDREN'S PLACE with required functionality.
TRIMAX acknowledges that THE CHILDREN'S PLACE may request functional
enhancements that are proprietary in nature and not to be included in the
generally available release of the Software. THE CHILDREN'S PLACE will be
responsible for declaring in writing to TRIMAX the requested enhancements
that are considered proprietary. Prior to development of these
enhancements TRIMAX and THE CHILDREN'S PLACE will define mutually
agreeable terms on which these enhancements can be made available to other
TRIMAX customers.
6.3 "Pilot stores" shall mean the first five (5) THE CHILDREN'S PLACE stores
in which the Software shall be installed after the initial lab
installation at THE CHILDREN'S PLACE head office. "Pilot phase" shall mean
4 months (120 days) following the installation of the software at all the
pilot stores. During the pilot phase THE CHILDREN'S PLACE will use the
Software to ensure that the same performs in accordance with the
descriptions, proposals and specifications set forth in Schedule A. TRIMAX
will be in attendance as may be reasonably required by THE CHILDREN'S
PLACE to promptly rectify any errors which may manifest themselves during
the pilot phase.
Upon expiration of the pilot phase and provided there are no further
modifications or errors remaining in the Software which errors were
identified during the pilot phase, THE CHILDREN'S PLACE shall notify
TRIMAX it has accepted the Software for installation in THE CHILDREN'S
PLACE's other stores.
In the event that modifications are necessary or errors identified during
the pilot phase remain uncorrected, then the pilot phase shall be extended
by the elapsed time taken by TRIMAX to rectify errors or perform such
modifications, which shall not exceed fourteen (14) days.
6.4 Installation of the Software at THE CHILDREN'S PLACE's store locations
after the pilot phase will be the responsibility of THE CHILDREN'S PLACE.
7.0 WARRANTY AND LIMITATIONS ON LIABILITY
7.1 TRIMAX warrants that it owns the Software and has the right to grant this
license to THE CHILDREN'S PLACE, without violating any rights of any third
party, and there is currently no actual or threatened suit or claim by any
such party third party based on an alleged violation of such right by
TRIMAX. TRIMAX warrants that the Software will perform in accordance with
its specifications as outlined in Schedule A and the Reference
Documentation provided to THE CHILDREN'S PLACE.
Based on the information provided to TRIMAX by THE CHILDREN'S PLACE to
date TRIMAX believes the Software satisfies THE CHILDREN'S PLACE
functional requirements in all material respects and will operate on the
Hardware as listed in Schedule B.
7.2 TRIMAX warrants the Software for six (6) months from date of first
installation. TRIMAX will use best efforts to promptly correct any
deficiencies in the Software which cause the Software not to operate in
conformity with the Reference Documentation and provide software upgrades
at no additional charge during the term of this Agreement provided there
is a Software Support and Maintenance Agreement in force at the time of
release of Software upgrade, between THE
CHILDREN'S PLACE and TRIMAX. After the initial six (6) month warranty
period, Software support and maintenance will be provided under the terms
of a separate Software Support and Maintenance Agreement.
During the warranty period and the term of any Software Support and
Maintenance Agreement, the Software shall (a) be free from defects in
material and workmanship, (b) remain in good working order under normal
use, and (c) function (1) properly and in conformity with the warranties
herein, (2) in accordance with this Agreement and as set forth in Schedule
A, (3) on the Hardware and System Software set forth in Schedule B,
including updates or new releases to such Hardware, System Software and
other software, and (4) interface with other programs as required by
Schedule A. In addition, all documentation shall completely and accurately
reflect the operation of the Software.
7.3 The warranty provided in section 7.2 is a limited warranty and does not
apply to conditions resulting from improper use of the Software or
conditions resulting from modifications to the Software other than
modifications made by TRIMAX. Notwithstanding anything to the contrary, in
the event that the Software does not meet the above warranties, TRIMAX
shall provide, at no charge during the warranty period or the term of the
Software Support and Maintenance Agreement, the necessary software and
services required to attain the levels or standards set forth in said
warranties
7.4 TRIMAX's liability for any expense or damage incurred by THE CHILDREN'S
PLACE that may arise out of the failure of any software product to
function or due to any malfunction of a product shall be limited to the
purchase price of the Software as set forth in section 5.1 and any annual
fees paid by THE CHILDREN'S PLACE under the Software Support and
Maintenance Agreement between the parties.
7.5 Neither THE CHILDREN'S PLACE nor TRIMAX will be liable to the other for
compensation, reimbursement, or damages on account of expenditures,
investments, leases, or commitments made in connection with the business
or goodwill of the other.
7.6 Except pursuant to the payment obligations hereunder, THE CHILDREN'S
PLACE's liability pursuant to this Agreement shall be limited to the
annual fees paid to TRIMAX hereunder, and provided further that in no
event shall THE CHILDREN'S PLACE be liable for any indirect, special or
consequential damages, including but not limited to lost profits, except
upon THE CHILDREN'S PLACE's gross negligence or willful misconduct.
7.7 Notwithstanding anything to the contrary herein, in no event shall
TRIMAX's liability for direct damages be limited with respect to claims
arising out of TRIMAX's gross negligence or willful misconduct.
8.0 CHANGES TO PRODUCT LINE
8.1 TRIMAX will use reasonable efforts to notify THE CHILDREN'S PLACE in
advance of new product releases.
9.0 CONFIDENTIAL INFORMATION
9.1 THE CHILDREN'S PLACE agrees to take all reasonable precautions to maintain
the confidentiality of TRIMAX software except that THE CHILDREN'S PLACE
may disclose such confidential information to its employees and
consultants who have a need to know. It is understood that this obligation
of non-disclosure shall not apply to that portion of such confidential
information which is or becomes published or generally available to the
public, or which THE CHILDREN'S PLACE rightfully received from a third
party without a duty of confidentiality or which was developed
independently by THE CHILDREN'S PLACE.
9.2 TRIMAX materials and all copies thereof will at all times remain the
property of TRIMAX.
9.3 TRIMAX agrees to take all reasonable precautions to maintain the
confidentiality of THE CHILDREN'S PLACE's materials.
9.4 TRIMAX shall not refer to the existence of this Agreement in any press
release, advertising, or materials distributed to prospective customers,
with the exception that TRIMAX can include THE CHILDREN'S PLACE on the
standard TRIMAX "client list", without the prior written consent of THE
CHILDREN'S PLACE. This obligation will survive the cancellation or other
termination of this Agreement.
10.0 PATENT, COPYRIGHT AND TRADE SECRET INFRINGEMENT
10.1 TRIMAX will indemnify its subsidiaries, affiliates or assignees, and their
directors, officers, employees and agents, and defend, at its expense, any
claim brought against THE CHILDREN'S PLACE alleging that any Software
furnished under the terms of this agreement infringes any patent or
copyright or any other proprietary right of any third party.
TRIMAX will indemnify and hold harmless THE CHILDREN'S PLACE its
subsidiaries, affiliates or assignees, and their directors, officers,
employees and agents, from all claims, losses, costs, damages, actions,
liabilities and expenses (including without limitation attorney's fees and
disbursements) arising from or in connection with such claim, action or
allegation, whether or not the same is successful. In the event an
adjudication or order shall be obtained against THE CHILDREN'S PLACE's use
of the Software and/or related Documentation or any
portion thereof, by reason of any such claim, action or allegation, or if,
in TRIMAX's reasonable opinion, the Software or related Documentation or
any portion thereof is likely to become the subject of a claim of
infringement or violation of patent, copyright, trademark, trade secret or
other proprietary right of any third party, TRIMAX will, without in any
way limiting the foregoing, and at its own expense:
(a) procure for THE CHILDREN'S PLACE the right to continue using the
Software and/or Documentation; or
(b) replace or modify the Software and/or Documentation so that it becomes
non-infringing, but only if the modification or replacement does not
adversely effect the Specifications for the Software and/or related
Documentation or its use by THE CHILDREN'S PLACE; or
(c ) if neither (a) nor (b) above is practical, remove the Software and/or
Documentation from THE CHILDREN'S PLACE's site, and this Agreement shall
terminate effective as of the date upon which THE CHILDREN'S PLACE first
notified TRIMAX, or if TRIMAX otherwise obtained knowledge, of the
existence of the applicable claim of infringement or violation. Upon such
termination, TRIMAX shall reimburse THE CHILDREN'S PLACE in an amount
equal to the unamortized portion of the aggregate price of the Software
paid by THE CHILDREN'S PLACE using a ten year depreciation life.
TRIMAX shall also pay all costs and damages finally awarded, provided that
THE CHILDREN'S PLACE gives TRIMAX prompt written notice of such claim, and
information, reasonable assistance, and sole authority to defend or settle
the claim.
10.2 TRIMAX warrants that to the best of its knowledge that it is not currently
in violation of any patent or copyright or any other proprietary right of
any third party.
10.3 TRIMAX agrees to indemnify THE CHILDREN'S PLACE for any liability or
expense due to claims for personal injury or property damage (a) arising
out of the furnishing or performance of the Software or the services
provided hereunder or (b) arising out of the fault or negligence of
TRIMAX.
11.0 SOFTWARE LICENSE
11.1 For each Store Software license purchased by THE CHILDREN'S PLACE
according to the terms listed in the Addendum, TRIMAX grants to THE
CHILDREN'S PLACE the right to execute the software at one store location
owned or operated by THE CHILDREN'S PLACE. Title to the Software shall
remain in TRIMAX.
11.2 THE CHILDREN'S PLACE may make archival copies of the Software provided all
archival copies are destroyed upon termination of the Software license.
11.3 THE CHILDREN'S PLACE may make the Software available to its employees and
consultants to the extent needed to exercise its license hereunder.
11.4 THE CHILDREN'S PLACE's software licenses are non-exclusive and may not be
transferred to any other party without TRIMAX's written consent.
11.5 The software contains proprietary technology of TRIMAX. TRIMAX transfers
no title to or ownership of any software to THE CHILDREN'S PLACE or any
other third party. Except as explicitly set forth in this Agreement, THE
CHILDREN'S PLACE shall not execute, use, copy, or modify the software, nor
disclose any part of the software to any third party. THE CHILDREN'S PLACE
shall not decompile the software for any purpose.
11.6 THE CHILDREN'S PLACE's software licenses shall be perpetual and
irrevocable and continue unless terminated as provided herein. TRIMAX may
terminate the software licenses and rights granted if THE CHILDREN'S PLACE
neglects or fails to perform or observe any of its material obligations to
TRIMAX under the terms and conditions of this Agreement and such failure
is not cured within 30 days after notice is received by THE CHILDREN'S
PLACE. In the event of termination by TRIMAX, THE CHILDREN'S PLACE shall
destroy to the best of its knowledge all copies of all versions of the
software in THE CHILDREN'S PLACE's possession and certify in writing that
all copies have been returned or destroyed to the best of THE CHILDREN'S
PLACE's knowledge.
11.7 TRIMAX will provide source code to THE CHILDREN'S PLACE for internal use
only at no additional charge upon receipt of the milestone payment of
$200,000 due 90 days after THE CHILDREN'S PLACE pilot acceptance. In the
event TRIMAX corrects any defects in, or provides revision and/or updates
to the Software, TRIMAX shall, at no additional charge, furnish THE
CHILDREN'S PLACE with a corrected or revised copy of the source code of
the Software and any revised commentary as soon as practical but not more
than 30 days after the availability of the revised version.
11.8 THE CHILDREN'S PLACE will have the right, as part of the license granted
herein, to make additional copies of the documentation as it may deem
necessary.
12.0 YEAR 2000 Compliance
12.1 TRIMAX warrants that the Software provided to THE CHILDREN'S PLACE for use
prior to, during and after the calendar year 2000 includes or shall
include year 2000
capability at no added cost to THE CHILDREN'S PLACE. The software design
to ensure year 2000 compatibility shall include, but not be limited to
century date recognition, calculations that accommodate same century and
multi-century formulas and date values, and date data interfaces that
reflect the century. A letter will be provided outlining Year 2000
compliance of TRIMAX Software within 30 days of contract signing.
13.0 DISPUTES
13.1 New Jersey law will govern the interpretation and enforcement of this
Agreement.
13.2 Any disputes arising out of this Agreement shall be exclusively
adjudicated in the federal or state court of competent jurisdiction in the
State of New Jersey.
TRIMAX hereby consents and agrees to service of process and jurisdiction
of the state and federal courts of the State of New Jersey and the state
and federal courts of the United States.
14.0 GENERAL PROVISIONS
14.1 Neither party will be liable to the other party for delays in performing
under this Agreement if the delay is caused by strike, default or failure
of suppliers, riot, war, government action, law or regulation, act of God,
fire, flood, or other cause beyond TRIMAX's reasonable control.
14.2 Except as otherwise set forth herein neither party may assign or transfer
any of the rights, duties and obligations arising out of this Agreement
without the written consent of the other party.
Notwithstanding anything to the contrary contained herein, THE CHILDREN'S
PLACE may assign this Agreement to any subsidiary or affiliate or entity
owned or controlled by THE CHILDREN'S PLACE without regard to the
jurisdiction of incorporation of said subsidiary, affiliate or entity, or
as part of the sale of that part of its business which includes the
Hardware or any substantial portion of its data processing facilities, or
pursuant to any merger, consolidation or other reorganization, without the
consent of TRIMAX, but upon notice to TRIMAX. An assignee of either party,
if authorized hereunder, shall be deemed to have all of the rights and
obligations of the assigning party set forth in this Agreement. It is
understood that no assignment shall release either party from any of it
obligations hereunder.
14.3 Except as this Agreement otherwise provides, no amendment to this
Agreement will be binding unless agreed to in writing and executed by THE
CHILDREN'S PLACE and a TRIMAX officer, and no approval, consent, or waiver
will be enforceable unless signed by the granting party. No document will
amend this Agreement by
implication. The failure by any party to exercise any right or remedy
provided for herein shall not be deemed a waiver, partial or complete, of
any right or remedy hereunder.
14.4 Notwithstanding anything contained to the contrary herein, in the event of
any material breach of this Agreement by one party, the other party may
(reserving cumulatively all other remedies and rights under this Agreement
and in law and in equity) terminate this Agreement involved in whole or in
part, by giving thirty (30) days written notice thereof; provided, however
that any such termination shall not be effective if the party in breach
has cured the breach of which it has been notified prior to the expiration
of said thirty (30) days. In the event this Agreement is terminated due to
TRIMAX's material breach, THE CHILDREN'S PLACE shall be entitled to
receive a pro rata refund of any prepaid monthly fees.
14.5 The terms and conditions of the Agreement will supersede any previous
communications or agreements by either party, whether verbal or written.
14.6 The provisions of the Agreement are declared to be severable so that the
invalidity or unenforceability of any provision of the Agreement will not
affect the validity or enforceability of the remaining provisions.
14.7 All notices, requests and other communications provided for or permitted
under this Agreement shall be in writing and shall be given, made or
communicated either by personal delivery, by facsimile or fax
transmission, by reliable overnight courier or by registered or certified
mail, postage prepaid, and addressed as follows:
(a) If to TRIMAX, to: Attention:
Ian Rawlins
TRIMAX Retail Systems
7100 Woodbine Avenue, Suite 311
Markham, Ontario L3R 5J2
Fax: 905-470-8949
(b) If to THE CHILDREN'S PLACE, to: Attention: MIS Department
THE CHILDREN'S PLACE
One Dodge Drive
West Caldwell, NJ 07006
Fax: 973-227-5232
With additional copy to:
Attn: General Counsel
or to such other address as the party who is to receive such notices shall
notify the other party of in accordance with the foregoing. Any notice
shall be deemed to have been given, made, received, or communicated as the
case may be on the date personal delivery was effected if personally
served, on the date shown on the
sender's receipt of its facsimile or telex transmission if by facsimile or
telex, on the date shown as the date of delivery on the overnight
courier's cartage copy if by overnight courier, or on the date of delivery
(or attempted delivery) as shown on the return receipt if delivered by
registered or certified mail.
14.8 From the date herein up until ninety (90) days after the Pilot phase has
been completed, THE CHILDREN'S PLACE may, in its sole discretion,
terminate this Agreement upon five (5) days prior written notice to
TRIMAX. In the event THE CHILDREN'S PLACE elects to terminate this
Agreement pursuant to this Section, TRIMAX shall refund all previously
paid monies pursuant to Section 5.1 of this Agreement less any outstanding
amounts for services provided by TRIMAX pursuant to Section 6.1.
PURCHASE AGREEMENT ADDENDUM
PRICING
STORE SOFTWARE
Store License Stores 1 - 200 $ 2,000 per store
Stores 201 - 500 $ 1,800 per store
Stores 500+ $ 1,500 per store
Includes: POS Xpress
Xpress Server
POS Manager
Financial Authorization
SQL Anywhere $ 250 per store
HEAD OFFICE SOFTWARE
POS Configurator $ 995
Electronic Journal Viewer $ 995
Schedule A
SOFTWARE DESCRIPTION
1. Program
The software shall:
a) Conform to the REFERENCE DOCUMENTATION referred to in Section 7.1
which has been provided to THE CHILDREN'S PLACE and is made a part
hereof; and
b) Provide the functions required by THE CHILDREN'S PLACE which
includes:
i) Coupons / Scanning
ii) Credit Authorization
iii) Check Authorization
iv) Item Size handling
v) Employee Sales
vi) Promotions and Mix Match
vii) Frequent Shopper (Loyalty Cards and Program)
viii) Gift Receipt
The current capability of the functions provided by TRIMAX software listed
above and the fit for THE CHILDREN'S PLACE business requirements will be
subject to a more detailed review by THE CHILDREN'S PLACE and TRIMAX
during the initial analysis phase.
2. Documentation
a) Reference manuals, training materials guides and other materials
b) TRIMAX will provide THE CHILDREN'S PLACE with system documentation.
Schedule B
Hardware and Environment
1. Hardware
a) POS Terminals
4684 Model 300
4694 Model 144
4694 Model 244
ISPS - IBM PC compatible Pentium-based machines
2. Language
a) Operating System - Windows 95
Windows NT
DOS environment
3. Other Equipment
The Credit Authorization function of the Software must function with THE
CHILDREN'S PLACE current Credit Card and Check Authorization (SPS) service prior
to roll out of the pilot stores. Development of this function will be a part of
the project management phase and will be charged at a flat rate of $15,000.
4. Other Software
MLINK and other software provided by Computer Associates and currently used by
THE CHILDREN'S PLACE.
TRIMAX will provide all file layouts.