CONFIDENTIAL TREATMENT
Exhibit 10.36
Modification Agreement
CONFIDENTIAL TREATMENT
ISLAND PACIFIC SYSTEMS
MODIFICATION AGREEMENT
_______________________________________________________________
Concurrently with the execution of this template Agreement,
Toys "R" Us, Inc. ("Customer" or "you") and Island Pacific Systems Corporation
("Island Pacific" or "we") are entering into a certain License Agreement for
Software Products (the "License Agreement") and a certain Services Agreement
(the "Services Agreement"). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the License Agreement. This
document will serve as a template agreement between Customer and Island Pacific
describing the manner in which modifications to Island Pacific's Software
Products desired by Toys R Us are developed and delivered. We both agree to the
following terms and conditions:
DESCRIPTION OF PROJECT - AT THIS TIME THE SCOPE OF EACH
DELIVERABLE IS UNKNOWN. AS YOUR STAFF AND OURS AGREE ON THE CONTENTS THEREOF,
THE PARTIES WILL GIVE THE BODY OF WORK A NAME WHICH WILL APPEAR IN THIS
PARAGRAPH. TO EXPEDITE WORK, UPON YOUR REQUEST, WE WILL HAVE MORE THAN ONE OF
THESE MODIFICATION AGREEMENTS IN PROCESS AT ANY GIVEN TIME.
DESIGN SPECIFICATIONS - THE PROCESS OF IDENTIFYING USER
REQUIREMENTS, DOCUMENTING THE RELATED BUSINESS PROCESS FLOWS, AND DESIGNING THE
PANELS, FILES AND PROGRAMS RESULTS IN DESIGN SPECIFICATIONS. THESE
SPECIFICATIONS MUST BE COMPLETED BEFORE WE CAN GIVE A FIXED PRICE FOR THE CODE
BUILD. UPON SIGNING THE APPLICABLE MODIFICATION AGREEMENT, THE PARTIES WILL
AGREE UPON A DELIVERY DATE FOR THE DESIGN SPECIFICATIONS. BOTH PARTIES AGREE
THAT THEY WILL EACH USE THEIR REASONABLE BEST EFFORTS TO ASSIST EACH OTHER IN
MEETING THIS AGREED DATE. ONCE THE DESIGN SPECIFICATIONS ARE COMPLETED AND WE
HAVE GIVEN YOU A FIXED PRICE, MILESTONES AND FIRM DELIVERY DATES FOR THE CODE
BUILD, YOU CAN ELECT TO PROCEED WITH THE WORK, AMEND ITS SCOPE, OR CANCEL THE
MODIFICATION PROJECT ENTIRELY. IF YOU DECIDE TO CANCEL WORK ON THE MODIFICATION,
ANY DESIGN CHARGES ALREADY INCURRED ARE NOT WAIVED. IF YOU DECIDE TO PROCEED, WE
WILL EACH SIGN A SCHEDULE, TO BE ATTACHED TO THE APPLICABLE MODIFICATION
AGREEMENT, DESCRIBING THE APPLICABLE FIXED PRICE, MILESTONES AND FIRM DELIVERY
DATES FOR THE CODE BUILD (THE "PROJECT SCHEDULE").
CODE BUILD - ONCE THE PROJECT SCHEDULE IS APPROVED, WE WILL
UNDERTAKE CONSTRUCTION OF THE PANELS, FILES AND PROGRAMS NEEDED TO IMPLEMENT THE
DESIGN. WE WILL DO THIS IN PARALLEL WITH OTHER DEVELOPMENT PROJECTS.
MILESTONES - AS PART OF OUR AGREEMENT, THE PROJECT SCHEDULE
WILL CONTAIN DATES AT WHICH PORTIONS OF THE FINAL DELIVERABLE CAN BE EVALUATED
BY YOU. IN THIS WAY YOU
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CONFIDENTIAL TREATMENT
CAN JUDGE BOTH OUR PROGRESS AND THE DEGREE TO WHICH THE DEVELOPMENT MEETS YOUR
UNDERSTANDING OF THE DESIGN SPECIFICATIONS.
COSTS - WE CHARGE FOR DESIGN SPECIFICATIONS AT OUR TECHNICAL
SERVICES RATE [***] AS THESE SERVICES ARE INCURRED. THESE CHARGES ARE FURTHER
DESCRIBED IN THE SERVICES AGREEMENT. THE AMOUNT WE CHARGE FOR THE CODE BUILD IS
BASED ON A FIXED COST, WITH [***]DUE UPON BOTH PARTIES SIGNING THE PROJECT
SCHEDULE, PRIOR TO WORK COMMENCING, AND [***]DUE UPON YOUR ACCEPTANCE OF THE
DELIVERABLE. PAYMENT FOR THE CHARGES TO COMPLETE THE DESIGN SPECIFICATIONS WILL
BE DUE WITHIN [***] AFTER RECEIPT OF OUR INVOICES.
DELIVERY - IN THIS PARAGRAPH WE WILL AGREE, IF POSSIBLE, ON
THE DATE ON WHICH THE COMPLETED MODIFICATION WILL BE DELIVERED TO YOU. DEPENDING
UPON THE COMPLEXITY OR THE SIZE OF THE MODIFICATION, WE MIGHT ALSO AGREE ON A
FLOATING DATE BASED UPON WHEN THE DETAIL SPECIFICATIONS ARE APPROVED. IN THAT
CASE, THE FIRM DELIVERY DATE WILL BE SET FORTH ON THE PROJECT SCHEDULE. MOST
OFTEN, OUR STAFF WILL TRAVEL TO YOUR SITE TO INSTALL THE MODIFICATION.
[***].
ACCEPTANCE - ONCE WE HAVE DELIVERED OR INSTALLED THE
MODIFICATION, YOU WILL HAVE [***] DAYS TO EITHER ACCEPT OR REJECT OUR WORK. IF
YOU DO NOT REJECT THE DELIVERED MODIFICATION WITHIN THIS TIME, WE BOTH AGREE IT
IS CONSIDERED ACCEPTED. IF WE FAIL TO DELIVER ANY PART OF THE MODIFICATION BY
THE AGREED FIRM DELIVERY DATE, WE BOTH AGREE IT IS CONSIDERED AUTOMATICALLY
REJECTED. IF YOU REJECT THE DELIVERED MODIFICATION, EXCEPT IN THE CASE OF
AUTOMATIC REJECTION DUE TO FAILURE TO DELIVER ON TIME, YOU MUST DOCUMENT THE
REASONS FOR SUCH REJECTION AND WE WILL THEN HAVE [***] FROM RECEIPT THEREOF IN
WHICH TO REMEDY OUR FAILURE. IF YOU STILL REJECT OUR WORK OR IF THE MODIFICATION
IS AUTOMATICALLY REJECTED WE WILL, AT YOUR DISCRETION, EITHER
a) DELIVER THE MODIFICATION IN ITS CURRENT UNFINISHED
STATE AND FORFEIT [***] OF THE FIXED COST DUE US, OR
b) NOT DELIVER THE MODIFICATION AND REFUND [***] AS
WELL AS [***] FOR THE DESIGN SPECIFICATIONS, OR
c) [***]
SUPPORT - THE MODIFICATION WILL BE DELIVERED AS PART OF AN
AGREED ISLAND PACIFIC RELEASE AND WILL BE SUPPORTED AS A STANDARD PART OF THIS
RELEASE. IF THE MODIFICATION IS DELIVERED IN AN INTERIM RELEASE, SUPPORT FOR
THAT INTERIM RELEASE WILL END SIX MONTHS AFTER GENERAL AVAILABILITY OF THE NEXT
PUBLISHED RELEASE.
[***] = Confidential Treatment Requested
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CONFIDENTIAL TREATMENT
INTELLECTUAL PROPERTY - Any modification or enhancement
developed by Island Pacific at your request, whether for a fee or not, becomes
part of Island Pacific's software products. Title to the program product source
code and related documents will remain with Island Pacific. The application will
be incorporated into the I3 product suite and will be made available to all
Island Pacific users.
DOCUMENTATION - Application documentation will be included as
part of the first published release in which the modification exists.
LICENSE AGREEMENT - As set forth in Paragraph 3(b) of the
License Agreement, the modified Software and Software Products will constitute
"Software" and "Software Products" under the License Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Date set forth below.
DATED:
TOYS "R" US, INC
BY: /s/ Bruno Roqueplo
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BRUNO ROQUEPLO, SENIOR VICE PRESIDENT OF FINANCE
AND ADMINISTRATION (CFO)
ISLAND PACIFIC SYSTEMS CORPORATION
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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CHIEF FINANCIAL OFFICER
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