RETAIL MANAGEMENT AGREEMENT [LOGO]
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Each of us agrees that the following terms and conditions apply to the project
to be jointly undertaken by the parties (Project) for the purpose described in
the Attachment to the Retail Management Agreement (Attachment).
1. ASSOCIATED CONTRACT DOCUMENTS
The Attachment describes the details of the Project and, if needed,
additional terms and conditions.
A Change Authorization to Retail Management Agreement (Change
Authorization) modifies the terms and conditions of this Agreement, the
Attachment or any previous Change Authorizations. Both parties must sign
such Change Authorization.
The IBM Agreement for Exchange of Confidential Information contains the
terms and conditions under which the parties will exchange confidential
information, if any.
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Each of us agrees that the complete agreement between us about this transaction
consists of 1) this Agreement, 2) its attachments and 3) any other applicable
agreements, transaction documents, and Change Authorizations. This statement of
the agreement supersedes all proposals or other prior agreements, oral or
written, and all other communications between us relating to this subject. Any
reproduction of this Agreement by reliable means will be considered an original
of this document.
Agreed to: Agreed to:
QUICKRESPONSE SERVICES, INC. INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ Shawn M. O'Connor By: /s/ Al Giffin January 15, 1998
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Authorized Signature Authorized Signature
Name (type or print): SHAWN O'CONNOR Name (type or print): AL GIFFIN
Date: 12/31/97 Date: 12/31/97
Agreement number:
IBM Business Partner no:
Business Partner Address: IBM Address:
QuickResponse Services IBM Corporation
1400 Marina Way South 3405 W. Dr. M. L. King Jr. Blvd.
Richmond, CA 94804 Tampa, FL 33607
Attention: Order Support Services
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After signing, please return a copy of this Agreement to the IBM address above.
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2. DEFINITIONS
INVENTION means any idea, concept, know-how, technique, invention,
discovery, or improvement, whether or not patentable, that either of us
first conceives or reduces to practice during the term of the Project and
while in performance of this Agreement and for which 2 patent application
is filed.
MATERIALS means literary works or other works of authorship, not available
under other IBM or non-IBM agreements, which result from a Project, such as
programs, program listings, programming tools, documentation, reports,
drawings, suggestions, test scenarios, and results.
3. PERSONNEL
Each of us will designate a person ("Project Representative") with
authority to represent it in all matters concerning the Project and to whom
all notices will be addressed. Each of us will provide the other prompt
written notice of replacement of such person.
Each of us will be responsible for the supervision, direction and control
of our own personnel while engaged in Project activities. Neither of us
will prevent the other's personnel from engaging in activities with third
parties that are similar to Project activities.
4. ESTIMATED SCHEDULE
Each of us agrees to make reasonable efforts to perform our
responsibilities according to the Estimated Schedule. The term of the
Project will begin on the date specified in the Attachment and will end
upon the earlier of 1) the acceptance by both of us of the Materials or 2)
the expiration of a Project's duration.
5. CONFIDENTIAL INFORMATION
Each of us agrees that 211 information exchanged will be nonconfidential.
If the Project requires the exchange of confidential information, such
exchange will be made under a separate confidentiality agreement.
6. OWNERSHIP AND LICENSE
You hereby assign to IBM and IBM will have all right, title and interest,
including ownership of copyright, in the Materials and all copies made from
them, whether the Materials are developed solely by IBM or you, or jointly
by IBM and you. If requested, you agree to provide to IBM a certificate of
originality in the form provided by IBM, with respect to the Materials
assigned to IBM.
IBM hereby grants to you an irrevocable, non-exclusive, worldwide, paid-up
license to use, execute, reproduce, display, perform, distribute
(internally only) copies of, and prepare derivative works based upon, the
Materials. Such license includes the right to grant sublicenses to your
subsidiaries. You will reproduce and include the copyright notice and any
other legend, following IBM's copyright instructions, on any copies of the
Materials you make.
Nothing contained in this Agreement will restrict the use of any ideas,
concepts, know-how, or techniques which either of us, individual or
jointly, develops or provides during the term of the Project.
7. INVENTIONS
An Invention will be treated as follows:
if made separately by the employees of one of us, it will be the property
of that party (Inventing Party). The Inventing Party hereby grants to the
other an irrevocable, non-exclusive, worldwide, paid-up license under such
Invention, all patent applications filed therefor, and all patents issued
thereon;
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if made jointly by the employees of both of us, it and all patent
applications filed therefor and all patents issued thereon will be jointly
owned. Each of us has the right to grant licenses to third parties or
assign our rights therein without accounting to the other.
All licenses granted to either of us include the unrestricted right to
make, have made, use, lease, sell or otherwise transfer any apparatus, and
to practice any method, covered by the Invention. Such license shall
include the right to grant sublicenses to our subsidiaries.
Nothing contained in this Agreement shall be deemed to grant any license
under any patent or patent applications arising out of any other inventions
of either of us.
8. REPRESENTATIONS AND WARRANTIES
Each of us represents and warrants that:
1. the Materials will be original;
2. no portion of the Materials will violate any copyright of any third
party;
3. each of us has agreements with our employees sufficient to meet our
obligations under this Agreement.
Neither of us warrants or assumes any liabilities in connection with the
accomplishment or completion of any Project activities or that the
Materials will be error free.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER OF US MAKES ANY
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. TERMINATION / EXPIRATION
Either of us may terminate this Agreement, with or without cause, upon
written notice. Upon receipt of such notice, both parties will end all
Project activities in an orderly manner as soon as practical or in
accordance with a schedule agreed to by both of us.
If this Agreement is terminated or a Project's duration expires, each of us
will deliver to the other a copy of the Materials developed through such
termination or expiration. Such Materials are subject to the provisions of
Sections 6 and 7.
Any provisions of this Agreement which by their nature extend beyond the
termination or expiration of this Agreement will remain in effect beyond
such termination or expiration until fulfilled and shall apply to our
successors and assigns.
10. LIMITATION OF REMEDIES
Each party's entire liability and the other's exclusive remedy shall be as
follows.
For any claim concerning performance or nonperformance by either of us
pursuant to, or in any way related to, the subject matter of this
Agreement, the damaged party shall be entitled to recover actual damages to
the limits set forth in this Section.
Each party's liability for actual damages from any cause whatsoever will be
limited to $25,000. This limitation will apply, except as otherwise stated
in this Section, regardless of the form of action, whether in contract or
in tort, including negligence. This limitation will not apply to claims
for bodily injury or damage to real property or tangible personal property
for which the other is legally liable.
In no event will either of us be liable for any lost profits, lost savings,
incidental damages, or other economic consequential damages, even if
advised of the possibility of such damages. In addition, neither of us
will be liable for any damages claimed by the other based on any third
party claim.
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11. GENERAL
Each of us will bear its own Project expenses.
Neither of us may assign our rights or delegate or subcontract our duties
or obligations under this Agreement without prior written consent. Any
attempt to do so is void.
This Agreement shall not prevent either of us or our subsidiaries from
marketing, acquiring or developing materials, products or services which
are competitive to those of the other, except that any such materials,
products or services may not violate any statutory or common law rights of
the other. Each of us may pursue activities independently with any third
party, even if similar to the activities under this Agreement.
Each of us agrees not to use the other's name, trade name, trademarks, or
other designation without prior written consent.
Neither of us will disclose the existence of this Agreement or the Project
without prior written consent, except to the extent required by law.
Neither of us will be responsible for failure to fulfill its obligations
under this Agreement due to causes beyond its control.
Neither of us may bring an action, regardless of form, arising out of this
Agreement, more than two years after the cause of action has arisen.
If there is a conflict between the terms and conditions of this Agreement
and its Attachment, those of the Attachment prevail. Except as modified by
the Attachment, the terms and conditions of this Agreement remain in full
force and effect.
The laws of the State of New York govern this Agreement.
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RETAIL MANAGEMENT AGREEMENT [LOGO]
ATTACHMENT
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1. PURPOSE
The purpose of this Attachment to Retail Management Agreement is to define
your responsibilities to IBM in your activities as an IBM Business Partner
in retail industry management, for which IBM will pay you a fee.
2. SCOPE OF WORK
Under this Attachment, you will provide services to assist IBM in
evaluating opportunities to sell network services in the retail industry to
improve IBM's market share and competitive position.
3. TERM
The term of this Attachment shall be from the date of execution of this
Attachment until December 31, 2000. However, this Attachment will be
terminated in the event the Business Partner Agreement between IBM and QRS
is terminated.
4. IBM RESPONSIBILITIES
We will cooperate with you and promptly respond to your requests for
information to assist you to complete your tasks under the scope of this
Attachment.
Agreed to: Agreed to:
QUICKRESPONSE SERVICES, INC. INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ Shawn M. O'Connor By: /s/ Al Giffin January 15, 1998
---------------------- ----------------------------------
Authorized Signature Authorized Signature
Name (type or print) SHAWN O'CONNOR Name (type or print): AL GIFFIN
Date: 12/31/97 Date: 12/31/97
Agreement number:
IBM Business Partner no:
Business Partner Address: IBM Address:
QuickResponse Services IBM Corporation
1400 Marina Way South 3405 W. Dr. M. L. King Jr. Blvd.
Richmond, CA 94804 Tampa, FL 33607
Attention: Order Support Services
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5. YOUR RESPONSIBILITIES
QRS will provide the following Retail Industry Management Services to IBM.
You will:
1. INDUSTRY REQUIREMENTS:
a. identify, gather, quantify and communicate "network services" and
"electronic commerce" requirements to IBM,
b. include an opportunity statement and prioritization of
requirements, and
c. provide current information on industry and segment trends,
market analysis and issues with IBM management;
2. INDUSTRY STANDARDS:
a. participate with industry standards organizations and report to
IBM issues and recommendations for resolution, and identify
opportunities to influence these organizations where appropriate;
3. COMPETITIVE ANALYSIS:
a. collect and communicate pertinent competitive information to IBM
relating to competitive offerings, services, and initiatives
relating to electronic commerce and network services as well as
items you feel would be of interest to IBM, and
b. make recommendations to IBM that would improve IBM's competitive
position in the marketplace in general as well as specific areas
you identify both tactically and strategically;
4. MARKET MANAGEMENT:
a. share QRS market analysis information and recommend to IBM
actions that will enable IBM to increase Market share both in
conjunction with QRS and independently. The recommendations
should include industry initiatives and offerings by market
segment;
5. TRADE SHOWS:
a. represent IBM at trade shows and industry functions and
communicate issues and recommend solutions that enhance the
visibility and image of IBM and QRS. Make recommendation of
joint and/or individual participation at industry functions;
6. NON-TRADITIONAL OPPORTUNITIES:
a. communicate to IBM business opportunities that are outside the
scope of our Remarketer Agreement such as data center
outsourcing, EDI outsourcing and general information systems
opportunities. Specifically, QRS should identify at least five
"EDI Outsourcing" opportunities to IBM over the term of this
Agreement. QRS and IBM will work together to determine what
actions, if any, that may lead to an individual or joint sales
engagement of these various opportunities;
7. FORECASTING & OPPORTUNITY REVIEW:
a. provide a three year business forecast to IBM that is updated on
a semi-annual basis, and
b. conduct joint opportunity reviews to establish action plans to
engage and close specific opportunities.
Input to IBM will take place on an ongoing basis with formal reviews
semi-annually. These formal reviews will include all the topical areas
listed above and others to which we may both agree from time to time.
These formal reviews will be scheduled on a mutually agreeable basis.
IBM and QRS will annually re-evaluate the QRS responsibilities described in
this section and IBM may reasonably modify these responsibilities to
reflect IBM business requirements following the process described in the
Retail Management Agreement.
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6. RESULTING MATERIALS
Resulting Materials under this Attachment are reports covering the
information and topics described in section 5, Your Responsibilities.
7. ESTIMATED SCHEDULE
Reports under this Attachment are generally due at the semi-annual review
meetings on dates to be mutually agreed upon. Interim or special reports
or information will be provide as both of us agree from time to time.
8. PROJECT REPRESENTATIVES
Within 30 days of the start of work under this Agreement, both of us will
identify project representatives for this Attachment.
9. COMPENSATION
In consideration for the Retail Industry Management Services provided by
QRS, IBM will pay QRS a nonrefundable fee of * each year during the term
of this Attachment, payable in installments of * before the end of the
months of April, July, October of the same year and January of the
following year. In the event that this Agreement is terminated before
the end of any calendar year, IBM will prorate the annual fee for the
period of work performed prior to termination.
In recognition of the successful contract completion and revenue
overachievement of the five year industry remarketer agreement which
concluded on December 31, 1997, IBM will pay QRS a nonrefundable fee for
activities completed through December 31, 1997 of *, payable within 30
days after execution of this Attachment.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
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