EXHIBIT 10.18
CONFIDENTIAL TREATMENT REQUESTED
[LOGO]
XxxxxxxxXxxx.xxx(TM)
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is entered into as of March 29,
2000, and effective as of March 31, 2000 (the "Start Date"), by and between
XxxxxxxxXxxx.xxx, Inc., a Delaware corporation, with its principal place of
business at 00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000
XXX ("SNET") and Carrefour S.A., a corporation organized in the country of
France, with its Carrefour headquarters located at 6, avenue Xxxxxxx Xxxxxxxx,
BP 419.16-75769, Xxxxx Xxxxx 00, Xxxxxx ("Carrefour," and together with SNET,
the "parties," each individually, a "party").
R E C I T A L S
A. Carrefour is the largest international retailer of general merchandise
and intends to implement and utilize the Internet based application services of
GlobalNetXchange ("GNX") to facilitate its merchandise sourcing needs.
B. SNET is engaged in the business of developing and providing Internet
based merchandise sourcing solutions and services.
C. Carrefour desires to engage SNET to provide support services related to
Carrefour's use and application of GNX technology and services as set forth
herein, and SNET desires to provide such services.
A G R E E M E N T
NOW, THEREFORE, in consideration of the covenants hereinafter stated, the
parties agree as follows:
1. Services of SNET. Upon the terms and subject to the conditions
----------------
contained herein, SNET agrees to provide the services as set forth on Schedule A
annexed hereto (the "Services"). The Services shall be provided in accordance
with the provisions of this Agreement and Schedule A. Schedule A includes (i) a
statement of the scope of the work to be performed and (ii) a schedule of
compensation. Schedule A may include such additional terms and conditions as
the parties may wish to include and may be modified from time to time by mutual
agreement of the parties. As part of the Services, SNET shall be responsible
for maintaining and updating Schedule A.
2. Support Obligations of Carrefour. Upon the terms and subject to the
--------------------------------
conditions contained herein, Carrefour agrees to provide SNET the support
services as set forth on Schedule B annexed hereto (the "Carrefour Support
Obligations") to enable SNET to perform the Services. The Carrefour Support
Obligations shall be provided in accordance with the provisions of this
Agreement and Schedule B, which includes a statement of the scope of support
obligations to be performed by Carrefour.
3. Compensation.
------------
3.01 Service Fees. Upon the terms and subject to the conditions
------------
contained herein, Carrefour agrees to pay to SNET, in consideration of the
Services set forth on Schedule A, the compensation set forth on Schedule A.
3.02 Expenses. Payment for expenses incurred by SNET in performance
--------
of the Services shall be made as set forth on Schedule A. Such expenses shall
be limited to reasonable out-of-pocket expenses necessarily and actually
incurred by SNET in the performance of the Services hereunder, provided that:
(i) the expenses have been detailed and submitted on a form reasonably
acceptable to Carrefour for review and approval and (ii) if requested by
Carrefour, SNET shall submit supporting documentation in addition to the
approved expense form.
4. Other Agreements.
----------------
4.01 GNX Service Agreement. Carrefour shall use its reasonable best
---------------------
efforts to cause GNX to enter into servicing agreements for the performance of
services by SNET similar to the Services set forth on Schedule A, provided that
SNET is performing its obligations hereunder to the reasonable satisfaction of
Carrefour. Carrefour's obligation set forth in this Section 4 shall terminate
upon termination of this Agreement pursuant to Section 6 below.
4.02 Software Licensing Agreement. Carrefour shall enter into a
----------------------------
Software Licensing Agreement with SNET provided, however, that such Software
Licensing Agreement shall be (i) reasonably satisfactory to both parties and
(ii) on terms and conditions reasonably similar to those terms and conditions
set forth in the form of agreement attached hereto as Exhibit A. If such
agreement has not been consummated by the date of this Agreement, then Carrefour
and SNET each hereby agrees to use its best efforts to consummate such agreement
expeditiously, with an expectation that such consummation shall occur within 90
to 120 days of the date hereof.
5. Term and Renewal. This Agreement shall commence on the Start Date and
----------------
shall continue in full force and effect for an initial term of three years,
unless and until terminated in accordance with the provisions of this Agreement
or Schedule A. Upon expiration of the initial three-year term, this Agreement
may be renewed by mutual agreement of the parties upon terms mutually
satisfactory to both parties.
6. Termination. This Agreement may be terminated only in accordance with
-----------
the following:
2
6.01 Schedule A. The Agreement may be terminated in accordance with
----------
the relevant provisions, if any, included in Schedule A.
6.02 Nonpayment. If SNET has not received payment of any amount
----------
payable by Carrefour under this Agreement by its due date, and if SNET still has
not received such payment within fifteen business days after receipt by
Carrefour of written notice of such nonpayment, SNET may terminate this
Agreement by delivery of written notice of termination to Carrefour. If SNET
terminates this Agreement pursuant to this Section 6.02, then Carrefour shall
pay to SNET the minimum amounts of compensation payable to SNET pursuant to
Section 3.01 and Schedule A hereof for the remainder of the full three year term
from such date of cancellation.
6.03 Material Breach. In the event of any material breach of any term
---------------
or provision of this Agreement by either party, then the non-breaching party may
cancel this Agreement after receipt by the party in breach of 30 days prior
written notice thereof; provided, however, that this Agreement shall not
terminate at the end of the 30 days notice period if the party in breach has
cured the breach to the reasonable satisfaction of the other party prior to the
expiration of the thirty day period.
6.04 Bankruptcy. Either party may terminate this Agreement upon
----------
receipt of written notice to the other party if either party is adjudicated
bankrupt, files a voluntary petition of bankruptcy, makes a general assignment
for the benefit of creditors, is unable to meet its obligations in the normal
course of business as they fall due or if a receiver is appointed on account of
insolvency.
6.05 Effect of Termination. Except to the extent as otherwise provided
---------------------
in Section 6.02 hereof, upon any termination of this Agreement, SNET shall be
entitled to receive payment, pursuant to Section 3and Schedule A hereof, for
Services rendered through the end of the month in which the date of termination
occurs.
6.06 Receipt of Written Notice. For the purposes of this Section 6,
-------------------------
receipt of any written notice may be confirmed orally between the parties
through appropriate representatives of the parties, including their legal
counsel.
7. Vendor Rating Services. Carrefour hereby agrees to meet with
----------------------
representatives of SNET or its designees to evaluate SNET's Vendor Rating
Services for potential inclusion in GNX products and services; it being
acknowledged and agreed to by the parties that such inclusion shall be at the
sole discretion of GNX.
8. Termination of Letter Agreement. SNET and Carrefour mutually agree to
-------------------------------
terminate, and do hereby terminate effective as of the date of this Agreement,
the letter agreement by and between SNET and Carrefour, dated as of December 9,
1999 (the "Letter Agreement"); provided that such termination shall only be
effective upon receipt by SNET of payment on all unpaid invoices charged to
Carrefour for services performed by SNET prior the date of this Agreement
related to the Letter Agreement. Upon termination of the Letter Agreement, and
as an express and material condition of this Agreement, each party hereby
releases and forever discharges any claims, demands, actions, damages and
liabilities, known and unknown, that each such party ever had, now has or
hereinafter may have against the other party arising from the Letter Agreement.
3
9. Logos. Carrefour shall use its reasonable best efforts to cause GNX to
-----
list and display SNET's SourcingLink logo on the GNX website Partnership Page.
10. Joint Press Release. SNET and Carrefour shall issue joint press
-------------------
release regarding this Agreement.
11. Proprietary Rights. Unless otherwise expressly provided in Schedule
------------------
A hereof, all work performed pursuant to paragraph 1(c)(ii) of Schedule A
hereto, and all materials and products developed for Carrefour by SNET pursuant
to paragraph 1(c)(ii) of Schedule A hereto, are the property of SNET, and all
title and interest therein shall vest in SNET. To the extent that title to any
such works may not, by operation of law, vest in SNET, all right, title and
interest therein, including, without limitation, all copyrights, trade secrets,
trademarks, trade names, patents and other proprietary rights, are hereby
irrevocably assigned to SNET. Carrefour agrees to give SNET reasonable
assistance, at Carrefour's expense, to perfect the rights defined hereunder.
Any and all inventions, discoveries, processes, methods, designs and know-how,
whether or not copyrightable or patentable, which SNET may conceive or make
either alone or in conjunction with others, during the term of this Agreement,
shall be the sole and exclusive property of SNET; and Carrefour, whenever
requested to do so by SNET or any subsidiary and/or affiliate thereof, and
without further compensation or consideration, shall promptly execute any and
all applications, assignments and other instruments which SNET shall deem
necessary in order to apply for and obtain copyrights and/or letters patent of
the United States and of foreign countries for said inventions and discoveries,
and in order to assign and convey to SNET the sole and exclusive right, title
and interest in and to said inventions, discoveries, processes, methods, designs
and know-how, or any applications, copyrights, or patents thereof.
Unless otherwise expressly provided in Schedule A hereof, all work performed
pursuant to paragraphs 1(a), 1(b) 1(c)(i) and 1(d) of Schedule A hereto, and all
materials and products developed for Carrefour by SNET pursuant to paragraphs
1(a), 1(b) 1(c)(i) and 1(d) of Schedule A hereto, are the property of Carrefour,
and all title and interest therein shall vest in Carrefour. To the extent that
title to any such works may not, by operation of law, vest in Carrefour, all
right, title and interest therein, including, without limitation, all
copyrights, trade secrets, trademarks, trade names, patents and other
proprietary rights, are hereby irrevocably assigned to Carrefour. SNET agrees to
give Carrefour reasonable assistance, at Carrefour's expense, to perfect the
rights defined hereunder. Carrefour hereby grants SNET the right to use any such
works or their derivatives for the purpose of assisting other GNX retailers and
their suppliers to participate and operate on the GNX
4
12. Confidentiality. SNET acknowledges that it will receive information
---------------
and trade secrets designated by Carrefour as confidential in the course of the
performance of the Services, and Carrefour acknowledges that it may receive
information and trade secrets designated by SNET as confidential in the course
of the performance of the Services ("Confidential Information"). SNET and
Carrefour each hereby agrees to maintain the secrecy, and to cause their
employees to maintain the secrecy, of the other's Confidential Information and
each hereby agrees not to use it except in performing the Services and not to
disclose it to anyone who does not have a need to know it any Confidential
Information to perform under this Agreement. Confidential Information shall not
include any information which is publicly available at the time of disclosure or
subsequently becomes publicly available through no fault of the recipient party
or is rightfully acquired by the recipient party from a third party who is not
in breach of an agreement to keep such information confidential. Upon
termination of this Agreement, each party shall turn over to the other party all
documents, papers and other matter in its possession or under its control that
contain or relate to such Confidential Information. Each party acknowledges
that its disclosure of any Confidential Information of the other will give rise
to irreparable injury to the other party and/or its subsidiaries or the owner of
such information, for which monetary damages are incapable of repairing.
Accordingly, each party may seek and obtain injunctive relief against the breach
or threatened breach of the foregoing undertakings, in addition to any other
legal remedies which may be available. Each party acknowledges and agrees that
the covenants contained herein are necessary for the protection of legitimate
business interests and are reasonable in scope and content.
13. Non-Solicitation. During the term of this Agreement and for one year
----------------
thereafter, each party hereby agrees that it will not solicit or make offers of
employment or enter into consulting relationships with employees or consultants
of the other party.
14. Assignment. This Agreement shall be binding upon the party's
----------
respective successors and assigns. Neither party may assign any of its
obligations hereunder without the prior written consent of the other which may
be withheld in such party's sole discretion; provided that Carrefour may assign
its rights and obligations under this Agreement to a subsidiary or an affiliate.
15. Notices. All notifications and communications hereunder shall be in
-------
writing and shall be hand delivered, sent by registered mail return receipt
requested, sent by overnight delivery service or by confirmed facsimile
transmission to the party receiving such communication to the applicable address
set forth below or such other address as may be specified to the other party in
writing:
To SNET:
-------
XxxxxxxxXxxx.xxx
00000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx, 00000 XXX
Attn. Xxxx Xxxxx
Facsimile: 000-000-0000
With a copy to:
0
Xxxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000 XXX
Attn. Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
To Carrefour:
------------
Xxxxxxxxx
0, xxxxxx Xxxxxxx Xxxxxxxx
XX 419.16-75769
Xxxxx Xxxxx 00 Xxxxxx
Attn. Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Facsimile: 011-33-15-5731079
With a copy to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 XXX
Attn. Xxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
16. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware. Carrefour and SNET hereby
consent and agree that the United States will have exclusive jurisdiction over
any legal action or proceeding arising out of or relating to this Agreement, and
each party consents to the in personam jurisdiction of such courts for the
purpose of any such action or proceeding. Each party hereby waives all rights
it has or which may hereafter arise to contest such exclusive jurisdiction of
the United States.
17. Modifications. No modification, amendment, supplement to or waiver of
-------------
this Agreement or to the Schedules attached hereto shall be binding upon the
parties unless made in writing and duly signed by both parties.
18. Severability. In the event any one or more of the provisions of this
------------
Agreement or of the Schedules is held to be invalid or otherwise unenforceable,
the enforceability of the remaining provisions shall be unimpaired.
19. Waiver. A failure of either party to exercise any rights provided for
------
herein shall not be deemed to be a waiver of any further right hereunder.
6
20. Complete Agreement. This Agreement and the Schedules attached hereto
------------------
set forth the entire understanding of the parties as to the subject matter
herein and therein.
21. Attorneys' Fees. In the event of any dispute arising hereunder the
---------------
prevailing party shall be entitled to recover all legal fees and expenses
reasonably incurred as a result of such dispute.
22. Surviving Sections. All provisions of the following sections shall
------------------
survive the termination of this Agreement: 6, 11, 12, 13, 15, 16, 18, 19, 20,
and 21.
IN WITNESS WHEREOF, the parties have executed this Services Agreement
as of the date first above written.
XXXXXXXXXXXX.XXX, INC.
/s/ Xxxx Xxxxx
-------------------------------------------
By: Xxxx Xxxxx
Its: President and Chief Executive Officer
CARREFOUR S.A.
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
By: Xxxxxx Xxxxxxx
Its: Director - Information Systems
7
Schedule A
----------
1. Statement of the scope of the work to be performed by SNET (the
---------------------------------------------------------------
"Services"). The Services shall include the following duties:
--------
(a) SNET shall provide training to merchandise buyers of Carrefour
designed to teach them to successfully use and apply the GNX
internet based, merchandise sourcing services and technologies
(the "GNX Technology").
(b) SNET shall provide training, both on-line and off-line, to
merchandise suppliers of Carrefour designed to teach them to
successfully use and apply the GNX Technology.
(c) SNET shall assist Carrefour's buyers and merchandise suppliers to
create merchandise catalogs that conform to and are compatible
with the technological standards of the GNX Technology and (ii)
SNET may utilize and modify its own Catalog Creation Tools and
other technology to accomplish this service.
(d) SNET shall develop customized software for Carrefour, as
necessary, to support and facilitate the Services listed in (a)
through (c) above, and shall upon development promptly deliver to
Carrefour the source and object code for such customized
software.
(e) SNET shall provide telephone technical support for its Services
to Carrefour's merchandise buyers and suppliers and Carrefour, in
English, [*] or such other times as may be mutually agreed to by
the parties.
(f) SNET shall provide such other reasonable services as mutually
agreed to by the parties. Ownership of any materials, including
but not limited to software code and documentation, developed
pursuant to this provision shall be as agreed.
[*]
2. Schedule of compensation.
------------------------
(a) Service Fees. The compensation to be paid by Carrefour to SNET
------------
for the performance of the Services shall be based on an hourly
rate, subject to certain aggregate minimums as described by the
following:
Hourly Billable Rate: [*] for each hour of Services performed,
with the exact rate dependent on the level
of experience of the service provider (the
"Service Fees"). For example, a service
provider of customer support would likely
be billed at a rate of [*], while a service
provider related to manager support would
likely be billed at a rate of [*]. The
Service Fees shall be due and payable
according to the terms of their
corresponding invoices.
Monthly Minimum: A minimum of $200,000 U.S. shall be paid to
SNET every month during the term of this
Agreement (the "Monthly
* Portions omitted pursuant to request for confidential treatment.
8
Minimum"), with the first payment due on the Start
Date, which shall represent the minimum monthly
amount of Service Fees payable for the Service
performed during the applicable month regardless
of the actual number of hours of Services
performed for such month. The Service Fees
incurred and payable may total more than the
Monthly Minimum in any given month. Service Fees
accrued in excess of the Monthly Minimum for such
month based on actual hours shall be reconciled
quarterly on a month-by-month basis (i.e., an
excess over the monthly minimum in one month may
not be used to offset a shortfall in Services Fees
for another month) and paid within thirty days of
the end of such quarter. [*]
Term Minimum: A minimum of $9,000,000 U.S. shall be paid to SNET
over the course of the first three years of this
Agreement, starting from the Start Date,
regardless of the actual number of hours of
Services performed for such three-year period. The
Service Fees may total more than $9,000,000 over
the three-year period. The shortfall, if any, of
the $9,000,000 term minimum over the amount of
Service Fees actually paid over the three-year
period shall be reconciled and paid within thirty
days of the expiration of such three-year period.
(b) Expenses. Carrefour shall reimburse SNET for all reasonable out
--------
of pocket expenses, including by way of example, travel and
communication expenses, within thirty days of billing as provided
by Section 2 of this Agreement. Such expenses shall be no greater
than the actual direct costs incurred by SNET, except that SNET
may include a reasonable amount of its own administration
expenses associated with such actual direct costs [*]. Such
reimbursements shall not be regarded or included in the amount of
Service Fees or related minimums as provided in subparagraph (a)
above.
* Portions omitted pursuant to request for confidential treatment.
9
Schedule B
----------
1. Statement of the scope of support obligations to be performed by
----------------------------------------------------------------
Carrefour. In anticipation and consideration of the Services rendered by SNET,
---------
Carrefour shall provide the following support services to SNET ("Carrefour's
Support Obligations"):
(a) Carrefour shall provide, or shall use its reasonable best efforts to
cause GNX to provide, training to SNET personnel on Carrefour's
practices and procedures regarding its use or intended use of the GNX
Technology, including how to create merchandise catalogs that conform
to and are compatible with the technological standards of the GNX
Technology.
(b) Carrefour shall provide, or shall use its reasonable best efforts to
cause GNX to provide, to SNET such documentation, technological
standards and specifications, and other similar information reasonably
requested by SNET to facilitate its performance of the Services.
(c) Carrefour shall provide SNET a 90-day rolling work schedule setting
forth an estimate of the number of hours and detailed descriptions of
the Services to be performed by SNET over such 90-day period. The
first schedule shall be provided within 15 calendar days from the
Start Date, and thereafter, an updated schedule shall be provided on a
monthly basis.
10
