EXHIBIT 10.56
CELERITY SOLUTIONS, Inc.
Software License Agreement
THIS Software License Agreement (the "Agreement") made this September 25th, 1998
is entered into by and between Celerity Solutions, Inc., a corporation
incorporated under the laws of Delaware, having its principal place of business
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("CELERITY"), and
Distribution Dynamics, Inc., having its principal place of business at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LICENSEE").
BACKGROUND
CELERITY is the owner of certain proprietary technical information consisting of
computer programs useful in performing various business functions on a Computer
System, as described on "Exhibit A" ("Programs"). LICENSEE is desirous of
acquiring a perpetual, irrevocable, non-transferable and non-exclusive license
to use the Object Code version of the Programs on the Computer(s) identified on
"Exhibit B" for the LICENSEE's operation of its 25 Site(s).
The term "Software" shall mean the Programs (excluding third party software)
supplied to LICENSEE under the terms of this Agreement, and all other releases,
enhancements and modifications supplied to LICENSEE by CELERITY, if any are
agreed to by both parties (excluding third party software). The term "Object
Code" means all or any portion of the machine-readable code comprising the
Software. The term "Computer" means the individual specific computer or
computers on which LICENSEE will install and execute the Software as designated
from time to time on Exhibit B. The term "Site" means the location of the agreed
upon designated servers where LICENSEE will use the Licensed Program described
on Exhibit A. The term "User" means any person accessing the Software via
CELERITY software and/or screen programs. User owned software (host order entry
systems for example) that access data from the CELERITY server via defined API
or other interfaces do not count as concurrent Users for purposes of this
Agreement. The total number of Users may be designated from time to time on
Exhibit C.
NOW THEREFORE, in consideration of the BACKGROUND and the mutual covenants
herein contained, CELERITY and LICENSEE hereby agree as follows:
----------
1. Title. LICENSEE understands and acknowledges that ownership and title to
the Software, including any releases, enhancements and modifications
thereof, are and will remain the exclusive property of CELERITY.
2. Grant of License. Upon payment of the initial license fee established and
set forth in Section 4 hereof, CELERITY grants to LICENSEE, and LICENSEE
accepts from CELERITY, a perpetual, irrevocable, non-transferable and
non-exclusive license to use the Object Code version of the Software on the
Computer(s) identified on Exhibit B for the LICENSEE's own internal data
processing and computing needs for testing and training purposes only.
LICENSEE shall not use the licensed Software in a production environment
until all charges and fees as set forth in this Agreement and any
associated Professional Services Agreement have been paid to CELERITY.
LICENSEE may not, for any purpose or under any circumstances, use the
Software to provide data processing or management information or services
to any third party. Upon payment of the additional license fees required by
Section 4 hereof, LICENSEE may use the Software in connection with any
increase in the number of LICENSEE's Computer(s), Site(s), or User(s).
3. License Assignment. LICENSEE shall not assign or transfer its rights in
such license to any other person or entity; provided, however, that
LICENSEE may assign all its rights in the license to a subsidiary or
affiliate in which it owns a majority interest, or to a purchaser of
substantially all of the business and assets of LICENSEE on the conditions
that (i) LICENSEE retains no rights to use the Software and (ii) such
subsidiary, affiliate or purchaser agrees in writing to be bound by the
terms of this Agreement as if it had executed this Agreement as LICENSEE.
Any such subsidiary, affiliate or purchaser is hereinafter referred to as a
"Permitted Assignee". An assignment by LICENSEE of its rights in the
license to a Permitted Assignee shall not release LICENSEE of any of its
obligations and responsibilities under this Agreement.
4. License Fee. The license fee for the Software shall be as described in
Exhibit C (the "License Fee") and shall be subject to the License Fee Terms
specified in Exhibit C. LICENSEE agrees to notify CELERITY in writing at
least 30 days in advance of any increase in the number of LICENSEE's
Computer(s), Site(s), or User(s) for the software, at which time the
preparation of a new Exhibit B and/or Exhibit C will be required, and
LICENSEE shall concurrently therewith, pay to CELERITY additional license
fees, if any as described on Exhibit C. LICENSEE agrees that CELERITY shall
have the right at any time to access each computer upon which LICENSEE has
installed the Software to enable and permit CELERITY to verify the accuracy
of Exhibit B and Exhibit C to this Agreement.
5. Maintenance. CELERITY will, at the option of LICENSEE, provide the services
outlined in this Provision 5 beginning from the date of LICENSEE Acceptance
of the Software through April 1, 2000, and thereafter upon payment of
annual license renewal fees specified in Section 6, CELERITY agrees to
provide all new releases of the Software and new
Celerity Solutions, Inc./ Software Licence Agreement #SLA980908-DDI
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documentation and to provide reasonable on-going telephone consultation
during Celerity's normal business hours. CELERITY additionally agrees to
provide program corrections for any Software error reported and determined
to be in its Software(s), documentation, or operational procedures. These
corrections will be provided in a timely fashion using reasonable efforts
and will be provided without any direct cost to the LICENSEE. CELERITY will
provide program corrections, updates, enhancements and all new releases of
the Software by either installing these items on LICENSEE's Computer(s) or
by electronic transmission through the modem without conveyance of title or
possession of any physical storage media. Should the error be found not to
be in CELERITY's Software, documentation, or operational procedures,
however, the LICENSEE will be billed for consulting time at published rates
and, the actual travel and living costs incurred by CELERITY.
Maintenance Election: Yes [X] No [_]
6. Annual License Renewal Fee. Annual License Renewal fees shall be payable as
follows: LICENSEE's first payment under this term will be due on April 1,
2000. LICENSEE's second payment under this term will be due one (1) year
from the VMI and Q&S DDI Acceptance of the Software. Annual License Renewal
fees will be billed ninety (90) days in advance of the due date and, may
only be canceled with 30 days notice prior to the due date. Annual License
Renewal fees, will become due and payable thereafter in each subsequent
year on or before the anniversary date ("due date") of the VMI and Q&S DDI
Acceptance of the Software . The annual license renewal fee is twelve
percent (12%) of the then current list price of the LICENSEE's Software
configuration. The annual license renewal fee can not, in any twelve (12)
month period, increase by an amount greater than the most current annual
increase in the Consumer Price Index For Urban Wage Earners CPI-W as
published by the Bureau Of Labor Statistics, U.S. Department Of Labor. This
fee provides for the continued use of the Software, and entitles the
LICENSEE to all the services outlined in Section 5, Maintenance, for a
period of one year from the due date or as otherwise provided herein.
7. Warranty. CELERITY warrants that, for one hundred & eighty (180) days
following DDI Acceptance of the Software, the Software will conform in all
material respects to the specifications contained in the documentation
initially furnished to the LICENSEE and as amended from time to time.
CELERITY's sole responsibility under this warranty shall be, at its option,
to correct or replace that portion of the Software which fails to conform
to said warranty or to refund the license fee paid, provided, however, that
the LICENSEE has reported in writing to CELERITY any defect or error
claimed to be a breach of warranty within ninety (180) days following
acceptance of the Software by LICENSEE. CELERITY will have no liability
under the foregoing warranty if (1) the LICENSEE modifies the Software
without CELERITY's prior written consent, (2) the LICENSEE fails to give
CELERITY written notice of the claimed breach of warranty or (3) the
failure to conform is caused in whole or part by persons other than
CELERITY or by products, equipment or computer programs not furnished by
CELERITY.
THE EXPRESSED WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES
GIVEN BY CELERITY WITH RESPECT TO THE SOFTWARE FURNISHED TO LICENSEE.
CELERITY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM
OR TRADE USAGE, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF
FITNESS FOR ANY PARTICULAR PURPOSE. CELERITY'S EXPRESS WARRANTIES SHALL NOT
BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY
SHALL ARISE OUT OF CELERITY'S RENDERING OF TECHNICAL OR OTHER ADVICE OR
SERVICE IN CONNNECTION WITH THE SOFTWARE.
Copyright or Patent Infringement: In the event of any claim that the
licensed Software infringes any valid United States copyright or patent,
provided that Celerity is promptly notified of such claim, is permitted to
control the defense of such claim and receives full cooperation from the
LICENSEE in connection with such defense, Celerity will at its own expense
take such action as it reasonably determines to be required to defend
against or, at is option, settle such claim. If in any suit or proceeding
based on such claim the licensed Software is held to infringe such a
copyright or patent, Celerity shall, at its own option and expense, (1)
promptly procure the right for continued Use of such licensed Software by
User, (2) promptly replace or modify such licensed Software so that it
becomes non-infringing or (3) return to LICENSEE all payments made under
this Agreement and terminate the license granted hereunder.
CELERITY's liability in contract or otherwise arising out of or in
connection with the Software or services under this Agreement shall not
exceed the fees paid to CELERITY by the LICENSEE within preceding nine
months with respect to the said Software or services. IN NO EVENT SHALL
CELERITY BE LIABLE FOR SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES
RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF
BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE
SOFTWARE OR CELERITY'S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS
RELATING TO THE SOFTWARE, EVEN IF CELERITY HAS BEEN ADVISED OF THE
POSSIBLITY OF SUCH DAMAGES.
8. Title Warranty. Celerity hereby warrants and represents that the licensed
Software is the property of CELERITY and CELERITY has the power to grant
the license hereunder.
Celerity Solutions, Inc./ Software Licence Agreement #SLA980815-20
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9. Hiring of Employees. LICENSEE and CELERITY each acknowledge that it would
receive substantial value and that the other would be deprived of the
benefits of its work force if it were to solicit or hire the other party's
current employees and consultants or prior employees and consultants for a
period of 24 months from the last date that they worked for either party.
LICENSEE and CELERITY further agree to notify each other immediately, upon
solicitation of the other's current and prior employees and consultants, to
give the affected party the opportunity to retain such employees and
consultants. It is further acknowledged that any breach of such terms or
provisions of this Section 9 would result in injury to the non-breaching
party that would be difficult or impossible to accurately ascertain.
Therefore, because of the impossibility of ascertaining actual damages, it
is agreed that in the event of a breach of any provision of this section by
either party, the breaching party will pay to the other party with respect
to each such breach the sum of Seventy Five Thousand dollars ($75,000) as
liquidated damages and not as a penalty. The parties agree that the amount
of liquidated damages specified herein represents a reasonable
approximation of the damages, which would be incurred as a result of a
breach of this Section.
10. Confidentiality; Protection of Trade Secrets. LICENSEE acknowledges that
the Software, all related materials and information, and all associated
intellectual property rights, are and shall remain the exclusive property
of CELERITY, and that CELERITY holds all United States and international
copyright interests therein, the Software being treated as an unpublished
work. LICENSEE further acknowledges that the Software and all related
materials and information are treated by CELERITY as secret and proprietary
information of CELERITY of substantial value. LICENSEE shall hold such
Software, related materials and information in confidence, and shall not
use, copy, or disclose, nor permit any of LICENSEE's Personnel, or any
third party resources to use, copy, or disclose the same for any purpose
that is not specifically authorized under this Agreement. LICENSEE shall
require that the Software be kept on LICENSEE's premises in separate,
secured drawers or cabinets. LICENSEE shall limit use of and access to the
Software and related materials and information to LICENSEE's Personnel or
third party resources whom LICENSEE has reason to believe are trustworthy
and are directly involved in the use, support and maintenance of the
Software. LICENSEE shall hold in confidence, and shall not disclose to any
other person or entity, the terms and provisions of this Agreement,
including but not limited to the financial terms embodied herein. CELERITY
acknowledges the competitive nature of LICENSEE's business and the
competitive advantage realized through implementation of the Software. As
such, CELERITY agrees not to provide those companies listed in Exhibit D, a
license to use the Software for at least a three (3) year period from the
Effective Date of this Agreement.
11. Publicity Rights. CELERITY may include LICENSEE in its marketing and
promotional efforts after providing LICENSEE five-(5) days notice of its
intent. Agreement will not be unreasonably withheld.
12. Termination. In the event of a material breach by LICENSEE of this
Agreement or a material breach of any associated Professional Services
Agreement entered into between CELERITY and LICENSEE, CELERITY will give
LICENSEE written notice of such material breach. If LICENSEE fails to cure
such material breach within thirty (30) days after receipt of such notice,
this Agreement shall forthwith terminate, the license fee will be
forfeited, and all rights granted to LICENSEE hereunder shall revert to
CELERITY. Promptly upon such termination of this Agreement, LICENSEE must
return or destroy, as requested by CELERITY, all copies of the Software
(whether modified or unmodified), and all copies of other materials and
information related to the Software which are in LICENSEE's possession. In
the event of termination of this Agreement, the obligations, restrictions,
and prohibitions contained in Sections 4, 6, 10, and 11 hereof shall
survive such termination as necessary to effectuate their purposes, and
shall bind the parties and their respective legal representatives,
successors and assigns.
13. Miscellaneous.
A. Term. The term of this Agreement will commence on the date hereof and
will continue as set forth in Section 2 (Grant of License) unless
earlier terminated as provided in Section 12 (Termination).
B. Assignment/Sublicense. Except as specifically provided in Section 3
hereof, this Agreement and the rights and obligations may not be
assigned, transferred, pledged or hypothecated in any manner by either
of the parties hereto, whether voluntarily or by operation of law,
without the prior written consent of the other party provided that
either party may assign this Agreement and its rights and obligations
hereunder to a purchaser of all or substantially all of its assets or
pursuant to a merger or similar reorganization.
C. Taxes. LICENSEE shall pay any and all federal, state and local sales,
use and other taxes and charges, however designated, levied or imposed
on the license of the Software or resulting from this Agreement,
except taxes based upon CELERITY's net income and payroll.
D. Force Majeure. Except for the obligations described in Section 4 and
Section 6 hereof, and in Exhibit C hereto, neither party shall be in
default if its delay in performing, or failure to perform any
obligation hereunder is caused by supervening conditions beyond that
party's reasonable control, including acts of God, civil commotion,
communications line failure, and governmental demands and
requirements.
E. Entire Agreement; Amendments. This Agreement, together with any other
agreements between the parties hereto which have been identified in
the Master Agreement, constitute the entire contractual arrangement
between CELERITY and LICENSEE pertaining to the subject matters
thereof, and there are no other representations, warranties, covenants
or obligations except as explicitly set forth in each of them. All
other prior or contemporaneous agreements, representations,
Celerity Solutions, Inc./ Software Licence Agreement #SLA980815-20
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proposals, understandings, negotiations and discussions, written or
oral, are hereby superseded and merged therein. This Agreement, and
other agreements identified in the Master Agreement, may be amended
only in writing executed by both parties.
F. General Interpretation. The terms of this Agreement and the words used
herein shall be deemed to be the language chosen by the parties hereto
to express their mutual intent. Therefore, this Agreement shall be
construed without regard to any presumption or rule requiring
construction against the party causing the Agreement or any portion
thereof to be drafted, or in favor of the party receiving a particular
benefit under this Agreement.
G. Captions. The captions of the sections of this Agreement are intended
and inserted solely for reference purposes, and shall not be
interpreted to govern, limit or aid in the construction of any term or
provision hereof.
H. Binding Effect. Subject to Section 3 and Sub Paragraph B above, each
and all of the provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors, personal representatives and assigns.
I. Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the laws of and under the jurisdiction of
the State of Illinois, without reference to the choice of law
principles thereof.
J. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and will be deemed to have
been duly given or made upon receipt by certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set
forth above, or to such other address as each party may specify in
writing to the other.
K. Source Code Escrow. CELERITY and LICENSEE shall mutually agree to the
appointment of a software escrow agent. CELERITY will deposit with the
escrow agent the then most current version of the Software, along with
any and all technical and user documentation in machine-readable form,
within 10 business days of, Contract Execution, Completion of
Programming and Unit Test, Completion of First Factory Acceptance
Test, Completion of Factory Acceptance Test for the Vendor Managed
Inventory and Quoting & Sourcing Modules. Should CELERITY or any of
its successor organizations cease to do business for any reason or be
rendered incapable of providing technical support in a manner
consistent with the Terms of this Agreement, the LICENSEE, upon
request in writing to the escrow agent, shall receive delivery of the
then most current source code for the System(s) within thirty (30)
days of the date of LICENSEE's request.
a) Events of Bankruptcy and Receivership. For purposes of this
Agreement, the following shall be deemed to be "Events of
Bankruptcy" of CELERITY; (i) if CELERITY becomes "insolvent" as
defined in Title 11 of the United States Code, entitled
"Bankruptcy", 11 U.S.C. Section 101 et seq., as amended, or any
successor statute (hereinafter called the "Bankruptcy Code"), or
under the insolvency laws of any state, district, commonwealth or
territory of the United States of America (hereinafter the
"Insolvency Laws"); or (ii) if CELERITY files a voluntary
petition under the Bankruptcy Code or Insolvency Laws, which is
not dismissed within thirty (30) days of filing, or results in
the issuance of an Order for Relief against the debtor.
b) Return of Escrowed Property. Upon the occurrence of an Event of
Bankruptcy, or if CELERITY takes advantage of any Insolvency
Laws, then in any such event, CELERITY agrees immediately to
surrender and return, or immediately to cause to be surrendered
and returned, to LICENSEE all software, instruments, documents,
contracts, things and any form of proprietary information or
trade secret (as such terms may be defined under the laws of the
State governing this Agreement) (hereafter, the "Escrowed
Property") relating to LICENSEE and in the possession of the
Software Escrow Agent. CELERITY and LICENSEE hereby agree that
the Escrowed Property shall not constitute "property of the
estate" as such term is defined under Section 541 of the
Bankruptcy Code.
L. Severability. In the event that any of the terms or provisions of this
Agreement is, or becomes, or is declared to be invalid or void by any
court or tribunal of competent jurisdiction, such term(s) or
provision(s) shall be deemed severed from this Agreement and all of
the remaining terms and provisions hereof shall remain in full force
and effect.
M. Waiver. Any delay or omission by either party to exercise any right or
remedy under this Agreement will not be considered to be a waiver of
that or any other right or remedy contained in this Agreement. Except
as otherwise explicitly stated in this Agreement, all of the
respective rights of the parties are cumulative and may be exercised
separately or concurrently.
N. Prevailing Party: If either party hereto institutes any action or
proceeding in court in order to enforce any of the provisions hereof,
or any action for damages by reason of any alleged breach of any
provision hereof, then, as between
Celerity Solutions, Inc./ Software Licence Agreement #SLA980815-20
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the two parties, the prevailing party in any such action or proceeding
shall be entitled to receive from the losing party its reasonable
litigation costs or expenses, including but not limited to, such
amount as the court may adjudge as reasonable attorney's fees. For
purposes of this section, the term "prevailing party" shall mean the
party whose original request for relief most nearly approximates the
final outcome of the action, including any settlement thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement, on the
date first above written.
Celerity Solutions, Inc. (CELERITY)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: CEO 9/30/98
--------------------------------
Distribution Dynamics, Inc. (LICENSEE)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: President / CEO
--------------------------------
Celerity Solutions, Inc./ Software Licence Agreement #SLA980815-20
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CELERITY SOLUTIONS, Inc.
Software License Agreement
Exhibit A
"Licensed Programs"
"Licensed Program" shall mean the Software as it exists as of the date of
Acceptance, as defined in the SOFTWARE License Agreement and consists of the
following application modules:
o Sales Order Management
o Supply Chain Planner
o Purchase Order Management
o Material Requests Management
o Inventory Control
o Accounts Payable Vendor File, Accounts Receivable Customer File, Control
General Ledger
o Warehouse Management System
Celerity Solutions, Inc. Distribution Dynamics, Inc.
(CELERITY) (LICENSEE)
By: /s/ L. Kopeikina By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------- ------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------- --------------
Title: President / CEO Title: President/ CEO
--------------- --------------
Date: September 30, 1998 Date: September 30, 1998
------------------ ------------------
Celerity Solutions, Inc./Software License Agreement #SLA980908-DDI
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CELERITY SOLUTIONS, Inc.
Software License Agreement
Exhibit B & C Combined
"Designated Hardware Configuration & Locations"
Server recommendations are based on the CLIENT'S initial data concerning
facility sizes, number of users and transaction volumes as at the time of
signing this Agreement. Should the current data or site configuration change or
other significant facts be discovered, these server recommendations may be
subject to change:
--------------------------------------------------------------------------------
WMS Site Type Server Type
--------------------------------------------------------------------------------
Warehouse Location 25 Sites 17 Type 1 Servers
--------------------------------------------------------------------------------
2 Type 2 Servers
--------------------------------------------------------------------------------
3 Type 3 Servers
--------------------------------------------------------------------------------
3 Type 4 Servers
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Continuum Site Type Sites Served Server Type
--------------------------------------------------------------------------------
Central Location All Sites at Six Divisions 6 Type 2 Servers
--------------------------------------------------------------------------------
Delivery of Software: CELERITY will provide the Software, including any new
releases, enhancements and modifications thereof, by downloading the Software
onto the LICENSEE's designated servers in California without conveyance of title
or possession of any physical storage media.
Celerity Solutions, Inc./Software License Agreement #SLA980908-DDI
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CELERITY SOLUTIONS, Inc.
Software License Agreement
Exhibit B & C Combined
"Designated Hardware Configurations & Locations"
Server Type Definitions:
--------------------------------------------------------------------------------
Server Type 1 Base NT server, single 333 MHz CPU, 512M RAM, 4GB disk for O/S, 9
GB disk for data, 4/8 GB DAT (ProLiant 3000 series), Windows NT
Server 4.0, Backup Exec software
--------------------------------------------------------------------------------
Server Type 2 Medium to Large NT server, dual ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇ ▇▇
mirrored O/S (8 GB total), 12 GB disk in RAID (8GB useable), 4/8
GB DAT, redundant power supply (ProLiant 3000 series), Windows NT
Server 4.0, Backup Exec software
--------------------------------------------------------------------------------
Server Type 3 Base Alpha 1200 UNIX server, dual 533MHz CPUs, 768MB RAM, 3
channel SCSI RAID controller, 16GB disk (12 GB useable), 4/8 GB
DAT, manuals, monitor, O/S license (No CPU expansion slots
available)
--------------------------------------------------------------------------------
Server Type 4 Alpha 4100 UNIX server, dual ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
configuration, redundant power supply, 20/40 GB SCSI tape drive,
52 GB disk (36 GB data, 8 GB mirror O/S, RAID, hot backup), 3
channel SCSI RAID controller, monitor, manuals, cables, etc.
(expansion to 4 CPUs total possible)
--------------------------------------------------------------------------------
Server Type 5 Alpha 8200 UNIX server, dual 625 MHz CPUs, 2 GB RAM, cabinet
configuration, redundant power supplies, 20/40 SCSI tape drive,
52 GB disk (36 GB data, 8 GB mirror O/S, RAID, hot backup), 3
channel SCSI RAID controller, monitor, manuals, cables (includes
installation) (expansion to 6 CPUs total possible)
--------------------------------------------------------------------------------
Celerity Solutions, Inc./Software License Agreement #SLA980908-DDI
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CELERITY SOLUTIONS, Inc.
Software License Agreement
Exhibit B & C Combined
"Designated Hardware Configurations & Locations"
Software License Fee Payment Schedule
This attachment to Exhibit 10.56 has not been included pursuant to the Company's
request for confidential treatment, pursuant to the Freedom of Information Act
Rule 17CFR Section 200.83.
Celerity Solutions, Inc./Software License Agreement #SLA980908-DDI
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CELERITY SOLUTIONS, Inc.
Software License Agreement
Exhibit D
"Competitor List"
This attachment to Exhibit 10.56 has not been included pursuant to the Company's
request for confidential treatment, pursuant to the Freedom of Information Act
Rule 17CFR Section 200.83.
Celerity Solutions, Inc./Software License Agreement #SLA980908-DDI
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EXHIBIT 10.56, CONTINUED
CELERITY SOLUTIONS, Inc.
Professional Services Agreement
This is an Agreement dated as of September 1, 1998 (the "Effective Date")
between Celerity Solutions, Inc., a corporation incorporated under the laws of
Delaware, having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("CELERITY"), and Distribution Dynamics, Inc.,
having its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "CLIENT").
CELERITY is in the business of providing software products and professional
services. The term "Professional Services" shall mean the services which CLIENT
shall authorize CELERITY to perform from time to time, as identified on "Exhibit
A" hereto, including but not limited to management, consulting, analysis and
design, installation, development and/or enhancement of computer programs, and
testing. The term "Charges" shall mean the fees and charges, as set forth in
"Exhibit B" hereto, which CUSTOMER agrees to pay to CELERITY for CELERITY's
Professional Services.
CLIENT is currently licensed or is obtaining a license to use CELERITY's
proprietary Continuum and WMS Software (the "Licensed Software") under
CELERITY's Software License Agreement. CLIENT wishes to engage CELERITY to
integrate changes into the Licensed Software in accordance with any Professional
Services provided under the terms of this Agreement.
In consideration of the foregoing and the mutual covenants contained below,
CELERITY and CLIENT agree as follows:
----------
0 Services. CELERITY shall provide Professional Services in a
professional and ▇▇▇▇▇▇▇-like manner as authorized by CLIENT and
identified on Exhibit A hereto. CLIENT agrees to fully cooperate with
CELERITY in regard to CELERITY's performance of Professional Services
under this Agreement, and to take any reasonable actions necessary to
enable CELERITY to perform such Professional Services in an effective
and efficient manner.
The software and documentation developed by CELERITY pursuant to this
Agreement shall become part of the Licensed Software within the
meaning of the CLIENT's Computer Software License Agreement with
CELERITY, except that the terms of this Agreement shall govern with
respect to CELERITY's warranty of such software and documentation and
the limitations of liability associated therewith.
1 Charges. After January 1, 2000, CELERITY's standard charges as set
forth in Exhibit B, are subject to change and at anytime thereafter,
following ninety days written notice by CELERITY. CLIENT also agrees
to reimburse CELERITY for disbursements such as travel expenses,
telephone calls, supplies, transportation, secretarial and messenger
services, provided they are incurred in connection with the
performance of Professional Services hereunder at actual cost.
Invoices covering Professional Services performed and charges incurred
by CELERITY will be issued on a monthly basis and are payable within
ten days of the invoice date. A ten (10) percent interest charge will
be charged for all fees that are past due. In the event of termination
as provided in Section 3 of this Agreement, CLIENT agrees to pay for
all services performed by CELERITY up to the effective date of
termination and any other applicable termination fees within ten (10)
days of such termination.
In addition to any other sums payable hereunder, CLIENT shall pay to
or reimburse CELERITY upon demand as applicable, an amount equal to
any taxes, however designated, arising from or based upon this
Agreement or the goods or services provided hereunder, including sales
and/or use tax, local privilege or excise tax, tariff, duty, property
tax or assessment and related interest and penalties, if any, imposed
by any governmental authority at any time, but not taxes based on
CELERITY's net income.
2 Term and Termination. This Agreement shall become effective on the
Effective Date and shall continue in effect until the expiration of
the warranty period set forth in Section 7 of the Software License
Agreement unless terminated in accordance with this Section. This
Agreement may be terminated at any time by mutual agreement, or by
either party by giving thirty days prior written notice. Either party
may terminate this Agreement for cause by giving written notice
provided that the party that is receiving the notice does not remedy
the cause within thirty (30) days. Upon payment by CLIENT of all
outstanding fees, CELERITY shall return all CLIENT-supplied materials
to CLIENT.
If this Agreement is terminated in accordance with the preceding
paragraph, and provided CLIENT has paid all fees due to CELERITY
hereunder and is in full compliance with this Agreement and with its
other contracts with CELERITY, CLIENT shall have the right to use the
results of the integration of the Licensed Software as have been
completed by CELERITY as of the termination date.
Celerity Solutions, Inc./ Software Licence Agreement #PSA980908-DDI
3 Client Responsibilities
4.1 CLIENT Data: All CLIENT-supplied source materials, including data, programs
and supplies, must necessarily be machine processable and compatible with
CELERITY's equipment and techniques. The CLIENT agrees that CELERITY may examine
and/or test CLIENT materials at CLIENT's expense to determine processability and
compatibility with CELERITY's equipment and data processing techniques. If any
such materials are incorrect, incomplete, not machine processable or not
compatible with CELERITY's equipment or techniques, CLIENT agrees to pay
CELERITY at CELERITY's prevailing rates to perform the work necessary to prepare
such materials for utilization by CELERITY. In such an event, or in the event
CLIENT's materials are not received in accordance with agreed upon schedules,
CELERITY will exercise its best efforts in rescheduling CLIENT's work and CLIENT
agrees to extend schedule completion dates appropriately and pay for additional
expense, if any, incurred by CELERITY as a result.
If any CLIENT initiated changes to Exhibit A of this Agreement provides for the
development of a new program by CELERITY, CLIENT agrees, if requested by
CELERITY, to submit to CELERITY sufficient test data to test all aspects of such
program to establish satisfactory program performance prior to its utilization
for data processing hereunder. Such program testing and CLIENT's approval of the
test results will establish CLIENT's acceptance of the developed program,
subject to the performance requirements of Section 6 of this Agreement. CELERITY
may require such acceptance by CLIENT in writing as a condition of CELERITY's
further performance under this Agreement.
4.2 Liaison: CLIENT shall assign one or more Designated Representatives. Such
person(s) shall have the duty of acting as the point of contact with CELERITY
personnel to facilitate the expeditious execution of the work called for in
Exhibit A and any future CLIENT initiated changes to Exhibit A, attached hereto.
Such person shall be empowered to request modifications or alterations of the
services performed, in the form and using any procedures established by CLIENT ,
and shall also be the person to whom any communications relating to this
Agreement, its Exhibits, or the performance thereunder may be directed. CLIENT
may designate one or more replacement Designated Representatives at any time by
so notifying CELERITY in writing.
4.3 Solicitation Of Employees: CLIENT and CELERITY each acknowledge that it
would receive substantial value and that the other would be deprived of the
benefits of its work force if it were to solicit or hire the other party's
current employees and consultants or prior employees and consultants for a
period of 24 months from the last date that they worked for either party. CLIENT
and CELERITY further agree to notify each other immediately, upon solicitation
of the other's current and prior employees and consultants, to give the affected
party the opportunity to retain such employees and consultants. It is further
acknowledged that any breach of such terms or provisions of this Section 4.3
would result in injury to the non-breaching party that would be difficult or
impossible to accurately ascertain. Therefore, because of the impossibility of
ascertaining actual damages, it is agreed that in the event of a breach of any
provision of this section by either party, the breaching party will pay to the
other party with respect to each such breach the sum of seventy-five thousand
dollars ($75,000) as liquidated damages and not as a penalty. The parties agree
that the amount of liquidated damages specified herein represents a reasonable
approximation of the damages, which would be incurred as a result of a breach of
this Section.
4 CELERITY Responsibilities
5.1 CELERITY Personnel: CELERITY reserves the right to determine which of its or
its subcontractor's personnel shall be assigned to any particular project and to
replace or reassign such personnel during a project. CELERITY and CLIENT agree
that CLIENT shall have the right to exercise a veto over any and all replacement
personnel proposed by CELERITY, until mutually acceptable replacement personnel
have been identified. CLIENT assumes full responsibility for any impact on the
project schedule due to a personnel veto. CELERITY assumes responsibility for
compensating its personnel and subcontractors providing services hereunder and
will ensure that all deductions required of employers by state, federal and
local laws, including deductions for social security and withholding taxes, and
contributions for unemployment compensation funds, are made and that standard
workmen's compensation and liability insurance is obtained.
Each party to this Agreement is an independent contractor and not an agent,
servant, partner or joint venturer with the other party, for any purpose, and
neither party by virtue of this Agreement shall have any right, power or
authority to act or create any obligation, expressed or implied, on behalf of
the other party.
Celerity Solutions, Inc./ Software Licence Agreement #PSA980908-DDI
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5.2 Progress Reports: CELERITY shall submit written progress reports to CLIENT
not less frequently than once each two (2) calendar weeks during the first six
(6) months of the term of this Agreement, and after the expiration of said six
month period, as often as requested by CLIENT, but no more frequently than once
per calendar month. Each of such progress reports shall contain a section
describing the methodology used by CELERITY in estimating its costs and charges,
and comparing actual charges accrued by CELERITY with any previously developed
budget or estimate for such period. If CLIENT or CELERITY has specified an
estimate of payments to be made for the services to be rendered by CELERITY
under Exhibit A of this Agreement, and it becomes apparent during the
performance of such services that the cost of completion will exceed such
estimate, CELERITY shall so advise CLIENT as far in advance as possible. CLIENT
shall thereupon have ten days within which to request CELERITY in writing to
cease further work (provided that CLIENT shall remain fully liable to pay
CELERITY for work performed theretofore). If CLIENT does not make such a request
within the ten day period, CELERITY shall proceed to completion of the services.
5.3 Data Safeguards: All written information submitted by CLIENT to CELERITY in
connection with services performed by CELERITY under this Agreement which is
identified as proprietary information will be safeguarded by CELERITY to at
least the same extent as CELERITY safeguards like information relating to its
own business.
5 LIABILITY
6.1 Acceptance Testing: Acceptance Testing will be performed as specified in the
CLIENT's General Design Study document, Version 1.0, dated 7/15/98, on pages
1-40 and 1-41. CLIENT acknowledges that acceptance testing must be completed
promptly. At the conclusion of the acceptance test, CLIENT shall present to
CELERITY a complete list of any failures by the software to meet the acceptance
test. If the software does not pass the acceptance test, CELERITY shall correct
such deficiency promptly following consultation with CLIENT regarding the manner
in which the software fails the acceptance test. The time and expense charges
for such corrections shall be billed to CLIENT, excepting those cases wherein
the need for corrections arises from an inherent defect in the Licensed
Software, in which case the costs of any corrections shall be borne by CELERITY.
CLIENT shall be deemed to have accepted the software when the listed errors are
corrected and no new errors have been introduced as a result of such
corrections. Notwithstanding the foregoing, use of the software in a production
environment constitutes immediate acceptance.
6.2 Standard Of Care: CELERITY will perform all services required under this
Agreement in a manner consistent with generally accepted standards for the data
processing and allied services industry.
6.3 Warranty: CELERITY makes no warranties whatsoever, express or implied, oral
or written, including but not limited to implied warranties of merchantability
and fitness or adequacy for a particular purpose with respect to any
Professional Services performed by CELERITY pursuant to this Agreement.
CELERITY makes no warranty to any third parties concerning the services
performed hereunder. CELERITY does not authorize CLIENT to obligate CELERITY to
any third party in any manner.
6.4 Limitation Of Liability: CELERITY shall be liable for loss, destruction or
damage of CLIENT-supplied materials only if due to the negligence of CELERITY
and then only to the extent of restoring the lost, destroyed, or damaged
materials. CLIENT agrees to keep a copy of all materials provided to CELERITY
such that CELERITY will not at any time have the only existing copy of any
CLIENT-supplied information. CELERITY shall not be liable for failure to
provide, or delays in providing, services hereunder, if due to any cause beyond
CELERITY's reasonable control.
THE WARRANTIES IN THIS SECTION 6 ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED WITH REGARD TO ANY GOODS OR SERVICES PROVIDED HEREUNDER,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE.
IN NO EVENT SHALL CELERITY BE LIABLE FOR ANY INDIRECT, SPECIAL OR EXEMPLARY OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF
SERVICES HEREUNDER OR THE USE OF THE SOFTWARE DEVELOPED OR MODIFIED PURSUANT TO
THIS AGREEMENT EVEN IF CELERITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. CELERITY'S TOTAL LIABILITY FOR ANY CLAIM BASED UPON THIS CONTRACT SHALL
BE LIMITED TO ONE-HALF OF THE AMOUNT OF FEES PAID BY CLIENT HEREUNDER, IN THE
NINE MONTHS PRIOR TO SUCH CLAIM.
6 PROPRIETARY RIGHTS
A complete set of all documentation developed by CELERITY pursuant to the
services performed hereunder shall be made available to CLIENT upon completion
or termination of the services performed hereunder, to be used by CLIENT on the
same terms and conditions as the Documentation provided under the Computer
Software License Agreement. All documentation, programs, specifications and
applications developed by CELERITY in connection with this Agreement are and
shall remain the sole property of CELERITY and CELERITY reserves the right to
use thereafter any ideas, techniques, or routines as may be developed during the
course of the services provided.
Celerity Solutions, Inc./ Software Licence Agreement #PSA980908-DDI
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Notwithstanding anything else to the contrary in this Agreement, CELERITY
acknowledges that the Licensed Software will be modified in the course of its
adaptation to CLIENT's business, and that the Licensed Software may therefore
contain elements which the CLIENT desires to keep confidential. Celerity
acknowledges the competitive nature of CLIENT's business and the competitive
advantage realized through implementation of the Licensed Software. As such,
CELERITY agrees not to provide the companies listed on Exhibit C, a license to
use the Licensed Software for at least a three (3) year period from the
Effective Date of this Agreement.
8. GENERAL
8.1 Assignment: This Agreement and the rights and obligations may not be
assigned, transferred, pledged or hypothecated in any manner by either of the
parties hereto, whether voluntarily or by operation of law, without the prior
written consent of the other party provided that either party may assign this
Agreement and its rights and obligations hereunder to a purchaser of all or
substantially all of its assets or pursuant to a merger or similar
reorganization.
8.2 Benefit: Except as herein expressly provided to the contrary, the provisions
of this Agreement are for the benefit of the parties hereto (and their
respective successors and permitted assigns) solely and not for the benefit of
any other person, persons or legal entities.
8.3 Waiver: Either party's failure to insist in any instance upon the strict
performance by the other of any of the terms of the Agreement shall not be
construed as a permanent waiver of such or of any of the other terms or
provisions hereof.
8.4 Notice: Except as otherwise provided herein, notice to a party hereto shall
be in writing and deemed to have been sufficiently given or served for all
purposes hereof if personally delivered or mailed by first class certified or
registered mail, return receipt requested, postage prepaid, or commercial
overnight delivery service, at the respective addresses set forth in the
preamble to this Agreement, or at such other address as the party to whom such
notice is directed may have designated by like notice in writing to the other
parties hereto. A notice shall be deemed to have been given when personally
delivered or, otherwise, on the earlier of (i) three (3) days after the date on
which it is deposited in the mails, or (ii) the date on which it is received.
8.5 Complete Agreement: This Agreement (including any Exhibits) contains the
entire understanding between CELERITY and CLIENT with respect to the subject
matter hereof, and supersedes and replaces any and all prior agreements,
negotiations, proposals, or representations regarding the subject matter hereof.
No modification, termination or waiver of any provision hereof shall be binding
upon a party unless made in writing and executed by an authorized officer of
such party. In the event CLIENT issues a purchase order, memorandum,
specifications or other instrument covering the Professional Services herein
provided, it is hereby specifically agreed and understood that such purchase
order, memorandum, specifications, or instrument is for CLIENT's internal
purposes only and any and all terms and conditions contained therein, whether
printed or written, shall be of no force or effect.
8.6 Authority: Each party represents that it has full power and authority to
enter into and perform this Agreement and that the person signing this Agreement
on its behalf has been properly authorized and empowered to enter into this
Agreement.
8.7 Construction: Section headings appearing in this Agreement are inserted for
convenience of reference only and shall not be construed to be interpretations
of text. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision hereof shall be prohibited by or invalid under any such
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating or nullifying the remainder of such provision
or any other provisions of this Agreement.
8.8 Force Majeure: Neither CELERITY nor CLIENT shall be responsible for failure
to fulfill its obligations under this Agreement due to acts of God, labor
dispute, war, insurrection, riot, nuclear disaster, fire, earthquakes or other
causes beyond its reasonable control.
8.9 Governing Law; Jurisdiction: This Agreement, including the validity hereof
and the rights and obligations of the parties hereunder, shall be construed in
accordance with and governed in all respects by the laws of the State of
Illinois. Each party hereto, to the extent that it may lawfully do so, hereby
consents to the jurisdiction of the courts of the State of Illinois as well as
to the jurisdiction of all courts from which an appeal may be taken from such
courts, for the purpose of any suit, action or other proceeding arising out of
any of its obligations hereunder or with respect to the transactions
contemplated hereby, and expressly waives any and all objections it may have as
to venue in any such courts. Each party further agrees that a summons and
complaint commencing an action or proceeding in any of such courts shall be
properly served and shall confer personal jurisdiction if served personally or
by certified mail to it at its addresses provided for in Section 8.5 of this
Agreement or as otherwise provided under the laws of the State of Illinois.
8.10 Mutual Indemnity: Each of the parties hereto agrees to save, indemify and
hold harmless the other, and each of its agents, servants, employees, officers,
directors, shareholders, affiliates, business invitees or consultants, from and
against all actions, claims, costs, damages, judgements, losses and suits,
including without exception, all reasonable costs of suit, including accounting
fees, attorney's fees or investigatory fees, arising from and in any way
connected with any intentional tort or act of gross negligence committed by such
party or by one or more of its agents, servants, employees, officers, directors,
shareholders, affiliates, business invitees or consultants.
Celerity Solutions, Inc./ Software Licence Agreement #PSA980908-DDI
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8.11 Prevailing Party: If either party hereto institutes any action or
proceeding in court in order to enforce any of the provisions hereof, or any
action for damages by reason of any alleged breach of any provision hereof,
then, as between the two parties, the prevailing party in any such action or
proceeding shall be entitled to receive from the losing party its reasonable
litigation costs or expenses, including but not limited to, such amount as the
court may adjudge as reasonable attorney's fees. For purposes of this section,
the term "prevailing party" shall mean the party whose original request for
relief most nearly approximates the final outcome of the action, including any
settlement thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
CELERITY SOLUTIONS, Inc. DISTRIBUTION DYNAMICS, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- ----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- ----------------------------
Title: CEO Title: President/ CEO
------------------------- ----------------------------
Date: 9/30/98 Date: September 30, 1998
Celerity Solutions, Inc./ Software Licence Agreement #PSA980908-DDI
5
CELERITY SOLUTIONS, Inc.
Professional Services Agreement
Exhibit A
Description of Professional Services
Distribution Dynamics, Inc.
Description of Professional Services:
CELERITY will provide CLIENT with management, consulting, analysis and design,
installation, development and/or enhancement of computer programs, and testing
services related to the implementation of the CELERITY Continuum and WMS
software at CLIENT as outlined in the Functional and Enhancement Narratives of
the Distribution Dynamics General Design Study, Version 1.0 dated July 15th,
1998.
Celerity Solutions, Inc. Distribution Dynamics, Inc.
(CELERITY) (CLIENT)
By: /s/ L. Kopeikina By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President / CEO Title: President/ CEO
Date: September 30, 1998 Date: September 30, 1998
Celerity Solutions, Inc./Professional Services Agreement #PSA980908-DDI
1
CELERITY SOLUTIONS, Inc.
Professional Services Agreement
Exhibit B
Description of Professional Service Fees
Distribution Dynamics, Inc.
Time and Materials Fees:
o CELERITY Professional Services will be billed at:
o Flat Rate $135/hour
o Once monthly, CELERITY will ▇▇▇▇ CLIENT for the actual hours worked that
period per the time and materials rate described above
o Client will pay CELERITY for all out-of-pocket expenses incurred by
CELERITY in connection with the Professional Services performed under this
Agreement. These expenses will be billed monthly by CELERITY
o CLIENT agrees to pay CELERITY upon receipt of an invoice
Celerity Solutions, Inc. Distribution Dynamics, Inc.
(CELERITY) (CLIENT)
By: /s/ L. Kopeikina By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President / CEO Title: President/ CEO
Date: September 30, 1998 Date: September 30, 1998
Celerity Solutions, Inc./Professional Services Agreement #PSA980908-DDI
2
CELERITY SOLUTIONS, Inc.
Professional Services Agreement
Exhibit C
Competitors List
Distribution Dynamics, Inc.
This attachment to Exhibit 10.56 has not been included pursuant to the Company's
request for confidential treatment, pursuant to the Freedom of Information Act
Rule 17CFR Section 200.83.
Celerity Solutions, Inc./Professional Services Agreement #PSA980908-DDI
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