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International Distribution Agreement
Between: ROBOCOM Systems, Inc.
And: Sistemas Integrados, Mexico
November 1996
Note: SECTIONS MARKED WITH AN (*) HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY
WITH THE COMMISSION.
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International Distribution Agreement November 1996
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This Agreement is made this _____ Day of _____, 19 __ between ROBOCOM Systems,
Inc., a New York State Corporation having an office at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000 ("ROBOCOM") and Sistemas Integrados, a (Mexican)
corporation having an office at Xxxxxx 00, Xxx Xxxxxxx, Xxxxxx 00000,
("Distributor").
Non-Exclusive Territory: Mexico and Central America
WHEREAS:
ROBOCOM owns the right to license proprietary software products (consisting
of programs and related documentation); and
Distributor desires to market and sublicense software products of this
type; and
ROBOCOM and Distributor wish to enter into an agreement authorizing
Distributor to market directly and make copies of certain software products
available to End Users in the Territory through Distributor, with Distributor
making certain payments to ROBOCOM with respect thereto.
NOW IT IS HEREBY AGREED as follows:
1.0 DEFINITIONS.
1.1 "Programs" mean the actual ROBOCOM computer programs in
machine-readable object code or other form covered by this Agreement, including
all ROBOCOM provided modifications and enhancements thereto.
1.2 "Documentation" means ROBOCOM user manuals and other materials in
printed form which facilitate the use of the Programs by End Users.
1.3 "Software Products" mean any combination of a Program object code and
Documentation licensed by ROBOCOM under the terms of this Agreement. "Product"
means either a Program or documentation, without drawing a distinction.
1.4 "End User" means an entry authorized for productive use of Software
Products. "Productive Use" means any use of any of the Software Products in
their application purposes.
1.5 "Territory" means the non-exclusive Territory first identified above.
1.6 "Demonstration License" means a license to Distributor for distributor
use of Software Product object code for marketing demonstrations, copying for
distribution to End Users, maintenance and training, and for use of Software
Product source code solely for use in providing End-User support. Neither the
source code nor the object code shall be otherwise used
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or copied. The source code shall be kept only at a single identified Distributor
site and shall nor be disclosed to third parties.
1.7 "The Commencement Date" means the effective date of the Agreement first
written above.
2.0 APPOINTMENT OF DISTRIBUTOR
2.1 License Grant. During the term of this Agreement and subject to all
other conditions herein, ROBOCOM hereby grants to Distributor a nonexclusive
right to relicense Software Products to End Users in the territory in
Distributor's name upon Distributor's own terms and conditions, such terms and
conditions to be approved by ROBOCOM. Certain Exhibit 1 Products may be
identified as requiring or including third party software which, if available
from ROBOCOM shall be licensed through ROBOCOM and may be required to be
licensed under different or additional terms and conditions.
2.2 Translations. During the term of this Agreement and so long thereafter
as distributor is furnishing maintenance services to End Users in accordance
with this agreement, and subject to all other conditions herein, ROBOCOM grants
to Distributor nonexclusive translation and distribution rights in the Territory
in the documentation and in all ROBOCOM-furnished modifications and updates
thereto. All translations shall be exact translations and shall meet ROBOCOM
appearance standards. Copyright in such translations shall vest in ROBOCOM
immediately at all times and Distributor agrees that all present and future
copyright in every translation is hereby assigned, including, but not limited
to, rights to create derivative work and any renewal rights and Distributor
agrees to execute any documents necessary to vest full copyright ownership in
ROBOCOM including a waiver of any distributor moral rights. Distributor agrees
that it will provide copies of such translations to ROBOCOM at no charge prior
to any distribution, and will provide ROBOCOM with reasonable assistance in
securing and enforcing the copyrights(s). Distributor is not permitted to
translate or attempt to translate the Programs.
2.3 Title in Products and Modifications. Title and all proprietary rights
in the Products, any permitted Distributor modifications in the Products, and
any translations thereof shall at all times remain the properties of ROBOCOM or
ROBOCOM's Licensor.
Inventions. Any modifications, changes, or improvements made by Distributor to
ROBOCOM's Software will be the sole and exclusive property of ROBOCOM, and will
promptly be provided to ROBOCOM. ROBOCOM will have the right to review at the
functional design stage, and to review and test code to ensure compatibility
with RIMS. In the event the change is incorporated into RIMS as part of the
standard package, it will then be available for resale through all channels. In
the event it is not incorporated, then for so long as this Agreement is in
effect, Distributor will have the right to use and/or sell, subject to the terms
of this agreement, such modifications, changes, or improvements, without payment
of royalties
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to ROBOCOM. Maintenance will be the responsibility of Distributor on all changes
not incorporated into the standard RIMS product.
2.4 Trade Secret and Confidential Information. Distributor acknowledges
that ROBOCOM has advised it that the Software and related documentation are
valuable proprietary information and trade secrets of ROBOCOM and that the
software (including, but not limited to the design, programming techniques, flow
charts, source code and documentation thereof) is confidential information
disclosed to Distributor to be used only as expressly permitted by the terms of
this Agreement, whether or not any portion thereof is or may be validly
copyrighted or patented. Distributor will take all reasonable steps to protect
the software on magnetic tape or disk or in any other form of disclosure by
using the same standard of care Distributor uses to protect its own confidential
information of a similar nature. Distributor agrees that it will require all
those individuals having access to the Software under this Agreement sign a
Non-Disclosure Statement, Exhibit 2 attached.
Distributor further acknowledges that, in the event of an actual or
threatened violation of the foregoing provision of which Distributor has actual
knowledge, Distributor will take immediate steps to stop such threatened
violation; that ROBOCOM may not have an adequate monetary remedy and will be
entitled to such injunctive relief as may be deemed proper by a court of
competent jurisdiction, in addition to any other available remedies. The
provisions of the Section 8 will survive the termination of this Agreement.
ROBOCOM agrees that Distributor's obligation to keep confidential any data
will not apply to any information or data which: (1) is or becomes publicly
known through no wrongful act of Distributor (2) is known to Distributor at the
time of disclosure; (3) is rightfully received by Distributor from a third party
without breach of this Agreement; (4) is furnished to a third party by ROBOCOM
without a similar restriction on the third party's rights; (5) is approved for
release by authorization from ROBOCOM; or (6) is disclosed pursuant to the
lawful requirement or request of a Governmental Agency or disclosure is
permitted by operation of law, provided that Distributor has given prior notice
to ROBOCOM and has made a reasonable attempt to obtain a protective order
limiting disclosure and use of the information so disclosed.
3.0 CERTAIN ROBOCOM OBLIGATIONS
3.1 Copies of Software Products. ROBOCOM will provide Distributor a single
current production UNIX runtime copy of its Software for demonstration and
training purposes only. ROBOCOM will also provide Distributor with three copies
of all of its User Documentation, for demonstration and training purposes only.
3.2 Maintenance Services. ROBOCOM will provide Distributor the maintenance
services as described in Exhibit 3. If a client company using software products
requires the documentation to be translated, then Distributor will promptly
translate documentation, as
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necessary, and distribute maintenance documentation and unmodified code updates
to its End Users.
3.3 Distributor Training. ROBOCOM will provide Distributor training as in
Exhibit 4.
3.4 Export Licenses. ROBOCOM will promptly apply for any licenses, if
required, from the Office of Export Administration, United States Department of
Commerce or any other United States Agency for shipment of ROBOCOM software.
3.5 Copies of RIMS License. ROBOCOM shall provide the then current version
of RIMS to Distributor in fulfillment of a specific relicensing of RIMS to
Distributor's End User upon receipt of a copy of an executed relicense agreement
between Distributor and its End User. Copies of the then current version of RIMS
will be provided on tape.
3.6 Warranties. ROBOCOM warrants to Distributor that ROBOCOM's proprietary
software products as furnished to distributor (excluding those which are
categorized as third party software) will work substantially as described in the
applicable ROBOCOM published documentation. Distributor acknowledges and accepts
that software is inherently susceptible to error and that ROBOCOM's sole
obligation shall be to use reasonable efforts to remedy substantial malfunctions
of the software by correcting errors or developing a suitable work around. This
warranty is subject to ROBOCOM receiving notification in sufficient detail to
enable ROBOCOM to demonstrate the error and certify its rectification or the
desiring of a suitable work around, ROBOCOM does not warrant that all errors are
correctable or avoidable.
This warranty shall not apply to software identified as third party
software or otherwise identified as being furnished in "AS IS" condition and
shall not apply to Distributor or End User modified portions of Software
Products or other portions of Software Products to the extent affected by such
modifications. ROBOCOM may charge Distributor at ROBOCOM's then-standard rates
for ROBOCOM attempts to diagnose and/or remedy problems attributable to
Distributor or Distributor's End User modifications or misuse.
3.7 New Versions, Enhancements. ROBOCOM may, from time-to-time, add to
Exhibit 'A' new authorized computer models or configurations or new or modified
ROBOCOM software and enhancements which, in ROBOCOM's judgment, are appropriate
for distribution in the Territory by Distributor.
3.7 Advertising Materials. ROBOCOM will provide Distributor with 500 copies
of its existing marketing literature initially, thereafter, copies of
advertising and promotional materials, as available and appropriate, at
ROBOCOM's cost plus twenty percent (20%). At no charge, ROBOCOM will provide
Distributor with a current example proposal for a US End User and the
accompanying general system description.
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4.0 CERTAIN Distributor OBLIGATION'S
4.1 Compliance. Distributor agrees to comply fully with all of
Distributor's obligations under this Agreement.
4.2 Re-Licensing Responsibilities. Distributor shall accept responsibility
for Software Products upon receipt from ROBOCOM and ensure Software Products are
of mercantile condition and quality. Distributor shall be responsible for
successfully compiling Software Products with stipulated version of Progress and
deliver the product to its end User, unless End User wishes Software products to
co-reside on its existing processor. In this case, Distributor shall take
responsibility for installing software products onto the selected processor.
Distributor may, at its option, contract ROBOCOM for support services. In no
case shall distributor guarantee performance on the End User's processor without
ROBOCOM's approval. Software Products shall otherwise be installed on a
computing platform that complies with the specifications provided by ROBOCOM.
Distributor shall pay for the Software Products in accordance with the
terms of this Agreement, (paragraph 4.20).
Distributor represents and warrants that it has the expertise, experience,
knowledge of the regional market and financial resources to successfully market,
deliver, technically support and relicense the Software in the Territory and to
achieve significant market penetration in the Territory.
Distributor will designate one or more individuals to act as sales and
application specialist(s) in the area of warehouse and distribution matters, and
to professionally present ROBOCOM's Software to interested parties. At its own
expense, Distributor will have this specialist(s) spend at least two weeks per
year at ROBOCOM's United States office for formal and informal training. The
location may be changed by mutual written agreement. Initial training will take
place within 90 days of the signing of this agreement.
Distributor will devote its best efforts to maximizing profitable sales of
ROBOCOM's Software in the Territory. This will include undertaking of formal
marketing and sales programs, including direct mailing, seminars, and individual
in person presentations to prospective customers. Within 90 days from the
signing of this agreement, Distributor will submit to ROBOCOM a detailed
marketing plan, describing how Distributor intends to market ROBOCOM's Software,
and the resources Distributor will devote to this effort.
Distributor will prepare its own price and technical proposals for
prospective customers. For customers requiring services other than or in
addition to ROBOCOM's standard Software, ROBOCOM will not be bound by the
provisions of Distributor's proposal except by prior written agreement.
Distributor will require that all customers for ROBOCOM's Software sign a
Software License Agreement identical to that shown in Exhibit 5, and that they
comply with
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other reasonable conditions to protect ROBOCOM's interests.
Distributor will provide initial technical support for its customers using
ROBOCOM software.
In addition, Distributor shall keep executed End User licenses, maintenance
agreements and disclosure agreements on file, and on request from ROBOCOM, will
provide at no charge copies of such licenses or agreements to ROBOCOM. If any
license or agreement is in a language other than English, an English translation
shall be made available by Distributor.
4.3 Examination of Records. Distributor will allow ROBOCOM representatives
to examine Distributor's records to confirm accurate and timely payment of
royalties by Distributor. Any such examination shall be conducted within fifteen
(15) days of Distributor's receipt of ROBOCOM's written request and shall be
performed during normal business hours, at a time mutually agreed upon by
ROBOCOM and Distributor. ROBOCOM's cost of such an examination shall be borne by
ROBOCOM unless a discrepancy in excess of two (2%) in payments of royalties is
discovered for any quarter, in which case 50% of ROBOCOM's cost of the
examination shall be born by Distributor. Any confidential information belonging
to Distributor will be kept confidential by ROBOCOM.
Distributor will maintain proper accounting records, and allow reasonable
inspection by ROBOCOM to verify amounts payable to ROBOCOM. ROBOCOM will have
the right, at any time, and at ROBOCOM's expense, to appoint an independent
auditor to verify the Distributor has not violated any portions of this
agreement. If an independent auditor is appointed by ROBOCOM for this purpose,
Distributor will provide said auditors with access to its records during normal
business hours.
4.4 Proprietary Notices. Distributor agrees to reproduce on all permitted
copies ROBOCOM and/or ROBOCOM's licenser's copyright and other proprietary
notices and, according to ROBOCOM instruction, any trademark notices as included
in the Software Products and in any ROBOCOM-furnished marketing materials,
training aids and other ROBOCOM-furnished materials and on any permitted
translations thereof Distributor recognizes and agrees that Distributor obtains
no rights in the Software Products and other ROBOCOM materials except for the
limited rights specifically granted under this Agreement.
4.5 Modifications; License Enforcement. Distributor agrees that it will not
modify software Products except for End User support, not duplicate software
Products otherwise than as expressly authorized herein and use its best efforts
to ensure that its End Users do not use Software Products in violation of the
agreement and the End User license agreement, including, but not limited to,
productive use on more than the authorized number of computers or on a model of
computer bearing a higher sublicense fee than paid by Distributor to ROBOCOM, or
use the software Products for the benefit of entities other than the End User.
Distributor shall promptly notify ROBOCOM and provide reasonable assistance to
ROBOCOM without charge to
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assist ROBOCOM in prosecution of any trade secret, copyright or trademark
infringements which come to Distributor's attention, and shall be undertaken by
ROBOCOM and at its expense.
4.6 Technical Support. Distributor agrees to provide all direct technical
support for the software Products to Distributor's end User licensees. Direct
technical support is defined as:
A. Providing all End User training and application support and answering
all End User operational and use questions;
B. Reproducing reported problems and reporting them in writing to
ROBOCOM's technical support center;
C. Endeavoring to answer technical End User questions prior to requesting
assistance from the ROBOCOM support center, and documenting the
answers furnished to End Users;
D. Using the Development License source code at Distributor's site solely
to understand and fix or develop a work around for reported software
problems. In each instance of modification of the source code for this
purpose or development of a work around, Distributor will coordinate
the change with ROBOCOM and will promptly provide ROBOCOM with a copy
of the commented source code modifications and identification of the
End User(s) to which the change relates; and
E. Providing weekly written reports to ROBOCOM support center of all
support activity and any new problems reported and solutions to
problems, if known.
4.7 Technical Staffing. Distributor agrees to establish and maintain at all
times a capable trained technical support staff sufficient to provide technical
support as defined in item 4.6 above, including, but not limited to, having two
senior systems analysts trained on the Software Products at all times.
4.8 End User Communications. Distributor agrees to ensure that each
supported End User CPU includes a 9400 baud modem available for support purposes
and communications adequate for the provision of support functions.
4.9 Distributor communications. Distributor agrees to provide ROBOCOM with
the telephone numbers on which Distributor provides voice and modem technical
support and with the End User telephone numbers on which each End User receives
voice and modem technical support.
4.10 Support Services. Distributor agrees that it will provide support
services only to
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End Users for whom all required royalties and maintenance fee payments to
ROBOCOM are current.
4.11 Warranties Solely on Behalf of Distributor. Distributor agrees that it
will make any warranties or other representations and maintenance commitments to
End Users solely for Distributor and not on behalf of ROBOCOM and will indemnify
and save ROBOCOM harmless from any claimed by Distributor End Users for
maintenance services, breach of warranty, performance failure or failure of any
Product to meet a description.
4.12 Translations. At its sole expense, Distributor will provide
translations to the literals in RIMS, and ROBOCOM shall enter those translation
into RIMS current version to provide screens in the languages(s) provided by
Distributor. Distributor may translate all documentation and updates thereto and
package and produce sufficient copies for itself and End Users in accordance
with this Agreement. Such translations shall be subject to the provisions of
Paragraphs 2.2 and 2.4 above. Any services requested by Distributor and
furnished by ROBOCOM will be furnished at ROBOCOM's then standard rates and
reasonable expenses. All packaging, printing, binding and other expenses will be
born by Distributor.
4.13 Source Code. Distributor agrees to hold all Program source code in
strict confidence and as valuable confidential information belonging to ROBOCOM
and not to disclose such code to any person except Distributor's employees on a
need to know basis.
4.14 Return of Materials upon Termination. Upon any termination of this
Agreement, Distributor will immediately return or certify destruction of the
Programs and documentation, including any copies, information or notes relating
thereto except to the extent temporary retention is reasonably necessary for not
more than one year from termination to fulfill End User maintenance commitments
made by Distributor in good faith and in accordance with this Agreement. ROBOCOM
agrees that it will offer software Product maintenance services to such End
Users following the determination of this Agreement for ROBOCOM supported
then-current versions of Software Products.
4.15 Payments. Distributor will make all payments in United States
currency at ROBOCOM's offices, first stated above, or as otherwise directed by
ROBOCOM and without deductions based on any currency control restrictions,
import duties, or sales, use, value-added or other taxes or withholdings.
Distributor will bear all taxes, however designated, imposed as a result of the
existence or operation of this Agreement, including, but not limited to, any tax
which Distributor is required to withhold or deduct from payment to ROBOCOM,
except, (a) any such tax imposed upon ROBOCOM by any governmental entity in the
United States and (b) any such tax imposed upon ROBOCOM in the country in which
the office of Distributor is located or in which the End User is located if such
tax is allowable as a credit against United States income taxes of ROBOCOM. To
assist ROBOCOM in obtaining such credit, Distributor shall furnish ROBOCOM with
such evidence as may be required by United States taxing authorities to
establish that such tax has been paid. Currency conversion shall be made as of
the
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exchange rate on the last business day before the day payment is due. All
monetary amounts in this Agreement are in US dollars.
4.16 Import and Export Controls. At Distributor expense, Distributor will
obtain any necessary import certificates or permissions and provide all
necessary assistance to ROBOCOM in obtaining any required export or other
licenses from United States governmental agencies, including, but not limited
to, certifications as to use and ultimate destination and/or written agreement
not to knowingly transmit directly or indirectly software Products to certain
named countries. Any such licenses or other documents shall become attachments
to this Agreement and part of Distributor's obligations hereunder. Concurrent
with signing this agreement Distributor will sign an Export Controls letter.
4.17 Competitive Products. Distributor agrees to permit termination of this
Agreement by ROBOCOM if Distributor sells and promotes products competitive with
ROBOCOM products permitted to be marketed under this Agreement. Prior to any
action being taken by ROBOCOM, a discussion would take place to allow
Distributor to explain the method of marketing and sale and demonstrate that
these products were not competitive to ROBOCOM's products.
4.18 Product Names; Trademarks. Distributor agrees to use ROBOCOM Product
names in association with the products and use any ROBOCOM trademarks as
instructed by ROBOCOM so as to protect ROBOCOM rights and continue
identification of the Products with ROBOCOM in the Territory.
4.19 Sales Projections. Provide ROBOCOM with quarterly sales projections
covering at least the next six quarters.
4.20 Fees and Payment; Maintenance Payments. Beginning with the first
system installed, for ROBOCOM Standard Software sold to Distributor customers
headquartered in the Territory, or elsewhere (as long as the right to distribute
ROBOCOM's Software has not been revoked), for which Distributor takes primary
installation and support responsibility, Distributor will charge customers the
list prices and pay ROBOCOM an amount equal to *% of the current list prices
(shown on the attached price list, Exhibit 1) or *% of a mutually agreed
discounted price which is commercially satisfactory to both ROBOCOM and
Distributor, for their modules purchased and installed. Should Distributor for
any reason decline to take primary installation and/or support responsibility
for any systems installed, Distributor and ROBOCOM will negotiate in advance an
equitable increase in the amount due ROBOCOM.
Ongoing Annual Maintenance Plan fees, computed at *% of the first site list
price for Standard Application Software and all custom Software provided by
ROBOCOM, will be split equally between the two parties, as long as Distributor
continues to support the customer directly. If ROBOCOM provides direct customer
support, it will receive *% of the maintenance fee.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. FILED
SEPARATELY WITH THE COMMISSION.
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Amounts to ROBOCOM, except for annual maintenance fees, will be paid by
Distributor at the end of the month following the month in which the Software
was installed. Annual maintenance fees will be to ROBOCOM at the end of the
second month following the month in which the Software was installed.
All transactions between Distributor and ROBOCOM will be in U.S. dollars.
All invoices are due withing sixty days of the date of the invoice.
The attached price list may be modified by ROBOCOM at any time, with 90
days advance notice to Distributor. ROBOCOM agrees that, for the initial
three-year term of this agreement, the prices for its standard application
software in the Territory will be adjusted pro rata to U.S. pricing.
By mutual written agreement, ROBOCOM and Distributor may modify the pricing
conditions on a case-by-case basis.
ROBOCOM agrees that, for the initial three year term of this Agreement,
customer maintenance charges will be contained with *% of the maintenance costs
in the country of installation.
5.0 PATENT AND COPYRIGHT INDEMNIFICATION
5.1 ROBOCOM will defend any action brought against Distributor [or
Distributor's End Users] based on a claim that a software Product infringes any
copyright, trade secret or United States patent (including patents in Territory
countries based on the relevant United States patents.). ROBOCOM will hold
Distributor harmless from and pay any award against Distributor or Distributor's
End Users based on such infringement provided that Distributor and/or End Users
notify ROBOCOM promptly in writing of the claim and Distributor and/or End Users
provide ROBOCOM reasonable assistance and permit ROBOCOM to control the defense
and any settlement. ROBOCOM shall have no liability if the alleged infringement
arises from (1) the licensing of other than a current unaltered release of a
Program as provided under this Agreement, or (2) the combination of a Program
with non ROBOCOM programs or data. ROBOCOM makes no representations or
warranties and provides no indemnities regarding patent or copyright
infringement by any portion of a software Product not developed by ROBOCOM.
5.2 In the event of claimed infringement, ROBOCOM reserves the right to
replace the Software Product with a non-infringing product of equivalent
functionality, modify the Software Product to make it non-infringing or, if
neither alternative is reasonably available, remove the Software Product and
refund to Distributor license fees paid to ROBOCOM with respect to the
infringing copies of the Software Product on a five-year End User use
amortization schedule.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
FILED SEPARATELY WITH THE COMMISSION.
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6.0 TERM AND TERMINATION
6.1 This Agreement shall enter into force on the Commencement Date and
shall continue for a period of two (2) years from the Commencement Date and
subject as herein provided shall thereupon automatically renew for an additional
one (1) year period and until terminated by one of the parties hereto giving
written notice thereof to the other at least one hundred eighty (180) days prior
to the end of the initial term or any following anniversary date of the
Agreement.
6.2 Notwithstanding Clause 6.1 of this Agreement, each party shall have the
right to terminate this Agreement at any time upon giving Distributor at least
ninety (90) days written notification if: (a) Distributor's performance under
this Agreement is unsatisfactory in ROBOCOM's reasonable judgement; (b)
Distributor promotes or markets a product competitive with the Software Products
in violation of Section 4.17; or (c) if Distributor shall undergo a change in
ownership or control with ROBOCOM's written consent, but approval of such change
shall be reasonably withheld by ROBOCOM.
6.3 Distributor and ROBOCOM agree that Distributor shall sell at least two
(2) sites during calendar year 1997 and at least five (5) sites during calendar
year 1998.
7.0 EVENTS OF DEFAULT
7.1 The occurrence of any of the following events shall constitute an event
of default entitling ROBOCOM to terminate this Agreement forthwith:
A. Nonpayment by Distributor of any payment to ROBOCOM for a period of
fifteen (15) working days after sending of written notice to the
Distributor specifying such default in payment.
B. If a petition or action shall be filed or taken by or against
Distributor under any law dealing with insolvency, bankruptcy or
suspension of payment and such petitions or action is not dismissed
within thirty (30) days.
C. If a Receiver is appointed over the assets or undertakings of
Distributor (or any part thereof).
D. If Distributor enters into a deed of arrangement or makes an
assignment for the benefit of creditors.
E. If Distributor ceases to function as a going concern or an order is
made or a resolution passed for the winding up of Distributor
(otherwise than for the purposes of amalgamation or reconstitution).
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F. If Distributor fails to promptly furnish ROBOCOM upon request, with
the names and addresses of End Users with a full copy of the signed
End User agreement and, if such agreement is not in English, with an
English translation of the agreement. This Agreement will terminate
immediately if Distributor sells, attempts to sell, agrees to sell, or
attempts to develop any products meaning Inventory and Warehouse
Control Systems Software competing with those provided by ROBOCOM.
G. If Distributor knowingly misrepresents the capabilities, functions or
functionalities of Software Products.
7.2 If either party fails to perform any other term, covenant or condition
of this Agreement and has not performed such term covenants or conditions within
thirty (30) days after a notice of default has been received, the non-defaulting
party has the right to forthwith terminate this Agreement by means of a written
notice without judicial intervention being required.
8.0 REMEDIES
8.1 Upon any termination of this Agreement, Distributor shall immediately
return or certify destruction of all Programs in accordance with paragraph 4.14
and ROBOCOM shall be entitled to recover from Distributor all accrued and unpaid
payments and other amounts then due and owing under the terms hereof and/or all
future payments and other amounts as and when becoming due hereunder.
No termination under this Paragraph 8.1 or otherwise under this Agreement
shall invalidate then existing Distributor End User licenses granted by
Distributor in accordance with this Agreement for which required fees and
charges have been credited or paid to ROBOCOM.
8.2 The rights of ROBOCOM pursuant to Paragraph 8.1 hereof are without
prejudice to any other rights or remedies which ROBOCOM may have. ROBOCOM
pursuit and enforcement of any one or more remedies shall not be deemed an
election waiver by ROBOCOM of any other remedy.
8.3 EXCEPT AS SET FORTH IN PARAGRAPH 3.5 AND PARAGRAPHS 5.1 AND 5.2,
ROBOCOM DISCLAIMS ALL WARRANTIES WITH REGARD TO THE ROBOCOM SERVICES AND
PRODUCTS SOLD OR LICENSED HEREUNDER INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OBLIGATIONS OR
LIABILITIES ON THE PART OF ROBOCOM FOR DAMAGES, INCLUDING BUT NOT LIMITED TO,
INDIRECT,
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INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE.
9.0 NOTICES
Service of all notices under this Agreement by either party to the other
shall be sufficient only if posted by certified or registered post, return
receipt requested or personally delivered and receipted for. Either party may
change its address for service of notice by written notice to the other.
10.0 UNFORESEEN EVENTS
Neither party shall be responsible for any delay nor failure to perform due
to causes beyond reasonable control of the party, including, but not limited to,
cause such as strikes, lockouts, or other labor disputes, riots, civil
disturbances, actions or inactions of governmental authorities or suppliers,
epidemics, war, embargoes, sever weather, fire, earthquakes, acts of God or the
public enemy, nuclear disasters, or default of a common carrier.
11.0 SEVERABILITY
In the event that any one or more of the provisions of this Agreement shall
for any reasons be held to be unenforceable in any respect under the laws of any
jurisdiction, such unenforceability shall not affect any other provision and
this Agreement shall then be construed as if such unenforceable provision or
provisions had never been contained herein.
12.0 GENERAL CONDITIONS
12.1 Applicable law; Dispute Resolution. The Agreement shall be construed
in accordance with and governed by the laws of the State of New York without
regard to that body of law known as conflict of laws and without reference to
the 1980 United Nations Convention on Contracts for the Sale of Goods and any
amendments thereto.
12.2 Headings. Headings and subheadings in this Agreement are for
convenience only and do not form part of this Agreement.
12.3 Assignment. Upon advance written notice, Distributor may assign this
Agreement to a parent, subsidiary, or successors in interest to the business of
Distributor provided that such assignees are located in the same country as
Distributor and is able to and does fulfill Distributor's obligations under this
Agreement. Distributor shall not otherwise assign this Agreement without the
written consent of ROBOCOM.
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12.4 Non-Waiver. The failure of either party to enforce at any time any of
the provisions hereof shall not be construed to be a waiver of the right or such
party thereafter to enforce any such provisions.
12.5 Independent Businesses. The Distributor and ROBOCOM are independent
businesses and will in no way claim otherwise or incur liabilities except on
their own account. It is understood and agreed that ROBOCOM and the Distributor
will not in any event be liable for any obligations, expenses, or damages of any
nature whatsoever incurred by the other party or for any claim made against the
other party on account of any services performed by it or by those for whom the
other party may be in law responsible and that this Agreement supersedes all
previous Agreements and arrangements between ROBOCOM and the Distributor.
12.6 Indemnity Clause. ROBOCOM will protect and save harmless and defend at
its own expense the Distributor from and against any and all claims of
infringements of patents, trade marks or industrial designs copyrights or other
property rights affecting the Products. The Distributor agrees to give ROBOCOM
prompt notice of any such claim that is made against the Distributor and will
give ROBOCOM such assistance and information as ROBOCOM may reasonably require.
In the event that any such infringement occurs or may occur, ROBOCOM may:
A. Procure for the Distributor the right to continue to use the Software
or infringing part thereof; or
B. Modify or amend the Software or infringing part thereof so that it
becomes non infringing; or
C. Replace the Software or infringing part thereof by other software of
similar acceptable capability; or
D. Pay the Distributor compensation relating to the whole or infringing
part of the Software as appropriate so that it may reimburse and
settle any corresponding claims put upon it by third parties.
E. The conditions of the indemnify clause identified herein apply only to
ROBOCOM's supplied RIMS applications code.
12.7 Notices. All notices hereunder will be in writing and will be deemed
to have been given and received when delivered in person or by registered or
certified mail, return receipt requested, postage prepaid, as follows:
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ENTIRE AGREEMENT
This Agreement and Exhibits constitute the entire Agreement governing the
relationship between the parties and supersede all proposals, oral or written,
and all negotiations, conversations, or discussions between the parties relating
to this Agreement. Distributor acknowledges that is has not been induced to
enter into this Agreement by representations or statements, oral or written, not
expressly contained herein. The terms and conditions of the Agreement shall
prevail, notwithstanding any variance from the terms and conditions of any order
or other instrument submitted by Distributor. This Agreement may be modified
only in writing signed by duly authorized representative of each party.
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If to Distributor:
Xxxxxxxx Xxxxxxxxxx
Xxxxxx 00
Xxx Xxxxxxx
Xxxxxx
00000
Attn: Xxxxxxx Xxxxxxxx
If to ROBOCOM:
ROBOCOM Systems, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx
Xxx Xxxx
00000
XXX
Attn: Xxxxxxx Xxxxxxx
Forum for Dispute. The parties agree to seek to resolve any dispute arising
under this Agreement pursuant to good faith business negotiations. In the event
of a dispute, the aggrieved party will promptly identify in writing the nature
of the outstanding dispute in sufficient detail as to allow the other party to
respond to the dispute. Each party agrees to set times and places to meet and
communicate their concerns and to propose resolutions to their dispute. These
meetings may take place by telephone, by video conference, or face-to-face. The
parties agree to hold not fewer than two meetings, and to meet for at least a
total of four hours to discuss their respective positions and to explore a
business resolution of their dispute. The parties agree to exchange offers in
writing upon conclusion of their meetings. Such good-faith procedures will be a
condition precedent to any litigation of the dispute.
13.5 The following are part of this Agreement:
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
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EXECUTED BY BOTH PARTIES, AS PROVIDED BELOW:
ROBOCOM Systems, Inc. Sistemas Integrados
By: By:
/s/ Illegible /s/ Xxxxxxx Xxxxx
Title: DIR SALES & MARKETING Title: Partner Director
Date: JAN 12 1997 Date: JAN 1997
***
/s/ Illegible
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EXHIBITS TO
DISTRIBUTION AGREEMENT
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EXHIBIT 1
Robocom Products:
RIMS(R).2001 v3.3
MFG/PRO INTERFACE
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Intentionally blank. Provided under separate cover.
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EXHIBIT 2
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CONFIDENTIALITY AGREEMENT
BETWEEN FIRMS
AGREEMENT and acknowledgment between ROBOCOM Systems Inc. (Company), and
Sistemas Integrados.
Whereas, the Company agrees to furnish the undersigned certain confidential
information relating to the affairs of the Company for purposes of: The
marketing of RIMS(R) .0001 v3.3 in Mexico.
Whereas, the undersigned agrees to review, examine, inspect or obtain such
information only for the purposes described above, and to otherwise hold such
information confidential pursuant to the terms of this agreement,
BE IT KNOWN that the Company has or shall furnish to the undersigned certain
confidential information, as set forth on an attached list, and may further
allow the undersigned the right to inspect the business of the Company and/or
interview employees or representatives of the Company, all on the following
conditions:
1. The undersigned agrees to hold all confidential or proprietary information
or trade secrets ("information") in trust and confidence and agrees that it
shall be used only for the contemplated purpose, and shall not be used for
any other purpose or disclosed to any third party.
2. No copies will be made or retained of any written information supplied.
3. At the conclusion of our discussions, or upon demand by the Company, all
information, including written notes, photographs, memoranda, or notes
taken by you shall be returned to us.
4. This information shall not be disclosed to any employee or consultant
unless they agree to execute and be bound by the terms of this agreement.
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5. It is understood that the undersigned shall have no obligation with respect
to any information known by the undersigned or generally known within the
industry prior to dates of this agreement, or becomes common knowledge
within the industry thereafter.
Agreed and Accepted: Agreed and Accepted:
ROBOCOM Systems Inc. Sistemas Integrados
-------------------- -------------------
/s/ Illegible /s/ Xxxxxxx Xxxxx
-------------------------- ---------------------------
Signature Signature
by: /s/ Illegible by: /s/ Xxxxxxx Xxxxx
----------------------- ------------------------
Title: DIR. SALES & MKTG Title: Partner Director
-------------------- ---------------------
Date: June 12, 1997 Date: Jan 1997
--------------------- ----------------------
************
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EXHIBIT 3
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Maintenance Contract Terms and Conditions
1. (I) ROBOCOM will provide periodic MAINTENANCE releases to RIMS products.
These releases will be made available to authorized Distributors and
subsequently to all customers covered by Software Maintenance
Agreements.
Problem Correction. ROBOCOM shall use commercially reasonable efforts
to correct verified software problems on a timely basis. The response
to a problem may be any of the following:
- Avoidance Procedure. Provides a temporary measure to
operationally avoid an identified software problem.
- Documentation Correction. Resolves errors or ambiguities in the
supporting documentation for software.
- Product Release. Incorporates problem resolutions, enhancements,
and functional changes in both the software and documentation.
Remote Support: ROBOCOM shall maintain telephone hotline services to
provide telephone consultation on software problems. Such support
shall be available to Distributors, Monday through Friday, excluding
ROBOCOM holidays, between 9:00 A.M. And 5:00 P.M. US Eastern time.
Standard RIMS: In the case where a customer has purchased a standard
version of a RIMS product (without customization), maintenance
releases will be provided as they become available. Software bugs
corrected in the standard product line are automatically included in
future releases.
Customized RIMS: In the case where a customer has purchased a
customized version of a RIMS product, releases will be generated on a
periodic basis depending upon the bugs reported by the customer and
the priorities assigned by the customer. Bugs reported in standard
versions of RIMS will be applied to customized versions of RIMS only
if they can be localized to standard modules within the customized
version (e.g. modules which have not been customized).
(II) ROBOCOM will provide periodic UPGRADE releases to RIMS products for
customers who have purchased a standard RIMS product. Upgrade releases
are defined as releases which add new features, improve existing
features, or improve performance/usability.
(III) ROBOCOM has no obligation to support the following:
- Altered, mishandled, abused, or modified software.
- Software that has been superseded by a major or enhancement
release for
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more than two (2) years.
- Software problems resulting from hardware malfunction,
third-party software, and/or causes beyond the control of
ROBOCOM.
ROBOCOM may refuse to provide or may suspend support services on any
software for which a valid license or sublicense is not in effect or
for which such licenses have been breached.
2. RESPONSIBILITIES OF PURCHASER
Purchaser will provide, free of charge and with ready access, adequate
working space, adequate light, heat, ventilation, electrical current, and
outlets for the use of RSI maintenance personnel.
Purchaser will not misuse, neglect or attempt any RIMS Software
modification, repairs or maintenance of the equipment covered hereby. Any
added costs to RSI for maintaining the system or equipment because of
violation of this provision will be charged to the Purchaser. Likewise, all
costs of maintenance not attributable to normal wear and tear, normal
malfunction, or RSI negligence, will be charged to the Purchaser at the RSI
published hourly rate and published list price for parts.
Purchaser will always allow RSI full and free access to the equipment
subject to Purchaser's industrial security rules.
Unless otherwise specified in the agreement, the client is responsible for
all day to day maintenance and administration tasks as required by a
typical computer system furnished by ROBOCOM with the RIMS application.
Customer Administrative tasks include but are not limited to:
User and Group Administration
User Accounting
Monitor disk usage
Install/configure Peripherals
Printer Scheduler Administration
File System Administration
Network File System Administration
Progress Database Administration
Periodic BI File Truncation
Periodic Dump and Reload
Develop Backup Strategy
Perform Daily Backups
Perform Quarterly Backups
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UUCP Administration
CRON Administration
EMAIL Administration
Kernel Tuning
3. GENERAL PROVISIONS
This agreement constitutes the entire agreement for maintenance service
between the Purchaser and RSI THE FOREGOING TERMS AND CONDITIONS WILL
PREVAIL NOTWITHSTANDING ANY VARIANCE WITH THE TERMS AND CONDITIONS OF ANY
ORDER SUBMITTED BY THE PURCHASER.
Customer Name
AGREED TO By:
------------------------------
(Signature)
------------------------------
(Print Name)
------------------------------
(Date)
------------------------------
(Title)
ROBOCOM Systems, Inc.
ACCEPTED By:
------------------------------
(Signature)
------------------------------
(Print Name)
------------------------------
(Date)
------------------------------
(Title)
***
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EXHIBIT 4
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ROBOCOM TRAINING PROGRAM
The ROBOCOM training is instructor-led yet participant-centered instruction that
focuses on predefined customer requirements. Our Training Department consists of
an experienced staff of professionals who tailor the curriculum to specifically
meet those requirements. To that end ROBOCOM training consists of a preset
curriculum which includes a comprehensive series of courses that can be
customized.
As part of the ROBOCOM training, we offer the following curriculums:
-- RIMS Warehouse Configuration (generally one week at ROBOCOM)
-- RIMS Supervisor Training (generally one week at ROBOCOM)
-- RIMS Worker Training (generally one week on site)
The actual course content of that training varies, depending on the needs of our
customer. Our course offerings include overviews as well as in-depth,
step-by-step procedures. Most often we use a combination of both:
-- Personnel who learn to setup the warehouse are given a system overview
and then are more heavily exposed to configuration issues with less
depth given to operations.
-- Supervisors are given a deeper overview that includes an understanding
of Video Display Terminal (VDT) and Radio Data Terminal (RDT)
functionality and only briefly touch upon system configurations.
-- Warehouse operators (workers) first attend VDT and/or RDT Overview(s)
and then learn each RDT and/or VDT step necessary to perform their
job.
As we present each course, careful attention is paid to use language
understandable to each student in the class. Again and again we are told by
non-computer-literate students that our presentations are non-threatening
because we are clear and easy to understand. Because our training is
interactive, we find that trainees are not afraid to ask questions for further
explanations.
Our experienced staff is also able to silently identify slower learners and
inconspicuously reinforce concepts/procedures for these people without causing
any embarrassment. Each Lab session (hands-on exercises) has been designed in
two parts: that which is required and that which is for "Extra Credit!" While
most of the class proceeds to the "Extra Credit" exercises, our staff can
provide extra support to the slow learner with the original, structured
exercises. In the rare event that the trainee still cannot grasp the lesson,
that student can come back for additional instruction during the time scheduled
for "Review/supplemental/As Needed Instruction."
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Our training approach is varied. The methodology used depends on the audience
size and type, the physical layout of the training facility, the availability of
equipment, and the subject matter being presented. Methods most commonly used in
our sessions include:
Lecture Questions and Answers
Demonstration Buzz Groups
Discussions Structured Hands-on Practice Exercises
Self Discovery hands-on Practice Exercises
ROBOCOM trainers initiate student review after each major topic is covered.
Continual creative review of material not only reinforces learning, it also
makes learning fun. Such techniques add variety to what is often perceived to be
repetitive, computer drills.
Our training material varies depending on the curriculum. We have configuration
material and worksheets for our Warehouse Configuration class. We have user
training material for our Supervisor and Worker user classes. All training
material includes our User Documentation. This allows our students to relate to
our Management Manual and User's Guides from their first exposure to the system.
Even in training we encourage students to check the appropriate section of the
Management Manual or User's Guide before asking for help. We find that if such
practices are in place from the beginning, there will be fewer calls and thus
lower maintenance costs later on.
Our goal is to work with our customers to establish RIMS training to best meet
their needs. Together we can emphasize learner discovery, learner participation
and learner involvement. Together we can make our training effective. Together
we can deliver results.
ROBOCOM's philosophy is that the most important ingredient in the process of
developing User Documentation is the user. If the RIMS user is afraid of the
system or does not understand the system, the system cannot achieve its intended
purpose. The best system is worthless if it is not properly used.
In short, our documentation makes the "magic" of RIMS understandable to people
who know nothing or very little about computers.
Each piece of ROBOCOM User Documentation adheres to our in-house User's
Documentation Standards Manual. These standards were created to assure the
consistency in overall display and structure of all our user documentation. Our
standards address three specific areas:
- General Document Format (Headers/Footers, Margins/Indents, etc.)
- Chapter/Section Format (Options/Sub-Options, Frames, etc.)
- Style/Grammar (Diction/Appearance, Numbering/Capitalization etc. )
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We have found that consistency in presentation and style is the key to
simplifying our documentation for user acceptance and user comprehension.
ROBOCOM's User Documentation includes the following:
- RIMS Configuration Material
- RIMS Management Manual
- RIMS Video Display Terminal (VDT) User's Guide
- RIMS Radio Data Terminal (RDT) User's Guide
- RIMS Training Material
Our five volumes of User Documentation complement each other. The Configuration
Material and Management Manual includes setup information necessary for the
implementation and maintenance of a RIMS system. Our two User's Guides provide
detailed steps used in daily RIMS processing, while our Training Materials
explain RIMS procedures and processes in a general sense.
The RIMS Configuration Material complements the RIMS Management Manual. This
material includes a brief explanation of each database element that needs to be
addressed when configuring a warehouse for a new RIMS installation. Included in
this material are diagrams that explain putaway and picking logic used by RIMS.
This allows you to understand exactly how your warehouse configuration will
affect your warehouse operations. A complete explanation of each configuration
task is explained in full in the RIMS Management Manual.
The RIMS Management Manual provides detailed information to be considered as a
customer prepares to implement RIMS. This manual is intended to be used in the
planning stages of the RIMS implementation process. It is also intended as a
reference for someone who needs to update any settings that follow the RIMS
implementation. The manual is intended for someone with a very limited knowledge
of the RIMS system.
The Management Manual describes in detail the database elements that will be
incorporated into RIMS. All of the information detailed in this guide is
required in order for RIMS to achieve optimal efficiency and accuracy as it
manages your warehouse operations.
We recommend that our customers study the RIMS Management Manual prior to the
installation of the RIMS software. This will enable customers to expedite the
implementation process, and to determine the need, if any, for further
customization.
The Management Manual divides the components of RIMS into four basic categories:
- Warehouse Configuration
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- File Information
- System Administration (including only the setup functions, the
processing options are covered in the VDT User's Guide)
- System Issues (including backups, restores, etc.)
Each RIMS topic covered in the Management Manual includes a real-life example
with a RIMS solution. Included too, are blank worksheets to simplify customer
planning and a Field-Frame Cross Reference Chart that shows you in an instant
which fields are on which frames.
Our customers have found the RIMS Management Manual invaluable as they prepare
their facilities for a RIMS installation.
The VDT User's Guide follows the menu structure of the VDT system and steps you
through each VDT process; the RDT User's Guide follows the menu structure of the
RDT system and steps you through each RDT process. Each manual includes sample
frames from the real system. The RDT User's Guide displays both the
vehicle-mount and hand-held frames.
The VDT User's Guide contains chapters that begin with "VDT" (e.g., VDT
Receiving) or "RIMS" (e.g., RIMS Warehouse Configuration). Those that are called
VDT... contain information that is specific to the VDT system. Those that are
called RIMS... contain setup, parameter or general RIMS information or
information that is established on the VDT system but affects the RDT system as
well. The RDT User's Guide chapters begin with RDT....
Each major menu option is a separate chapter. Each chapter is numbered
separately; for example, chapter one may consist of pages 1-1 through 1-30,
chapter two might be 2-1 through 2-25, etc. This allows you to tailor your
User's Guides to match your RIMS system. If a facility is not using the Quality
Assurance module, not only can you easily remove Quality Assurance from your
RIMS system menu, you can also easily remove that chapter from the user
documentation.
Each page in each User's Guide chapter contains a Header indicating the
appropriate chapter option/section. Each page also contains a Footer that
indicates the current release date of the page and the chapter name.
The last chapter of both user's guides is an alphabetized glossary where each
term that relates to RIMS is defined for the user.
Each time the User's Guides are updated, the new release date appears in the
Footer of each page. In addition, xxxx shading on the page highlights any
changes that have occurred in this update.
The RIMS Training Material varies in format and content depending on the
specified audience.
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Supervisors usually receive an actual Training Manual that contains schedules as
well as separate chapters for supervisor functions and/or warehouse processing.
All training materials complement the Management Manual and User's Guides.
Training materials explain procedures and processes in a general sense; the
Management Manual and User's Guides provide detailed step-by-step instructions.
Each chapter of the supervisor Training Manual also provides a listing of the
relevant RIMS reports that are available for that segment of RIMS. For example,
the Receiving Training Material alerts the user to the availability of the
"Expected PO Status Report" and the "Pending Returns Report."
Warehouse workers as a rule do not receive a Training Manual. They do, however,
receive less threatening "hand-outs" or "cheat-sheets" that capsulize the tasks
at hand. The content of this material depends on many variables:
- Do workers have any typing/computer experience?
- How much does the RIMS system differ from the current method of
operation?
- Will workers be performing the same types of tasks as before or is the
company using the installation of RIMS as a springboard to change
people's job assignments?
- Do the workers have to learn the VDT and the RDT systems?
Our training staff relies on customer interaction to determine the scope of the
warehouse training. Accordingly we then design the appropriate warehouse worker
training material.
ROBOCOM also provides a VDT Menu Map as a component of our training material.
This consists of a diagram that displays each menu option. These Menu Maps help
supervisors become familiar with the RIMS system as a whole. The Menu Maps can
also be used as a road map for supervisors/workers who need to know how to
access a specific frame on the VDT system. It is very easy to provide a colored
trail (via high lighter) to lead someone to a module (Receiving) or even to a
frame (Purchase Order Receiving).
All of the ROBOCOM RIMS User Documentation is used as part of the RIMS training
process. During training, users are exposed to the Management Manual and User's
Guides so that they not only become familiar with the documentation, they also
learn where to find answers to potential questions or problems.
Our goal is to work with our customers to establish concise RIMS User
Documentation to best meet their needs. Together we can help users overcome
apprehension, build confidence and grasp easy-to-follow instructions. Together
we can make our documentation effective. Together we can deliver results.
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EXHIBIT 5
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International RIMS(C) Pricing, 1996
RIMS.2001(C)
USERS SITE ONE (1) SITE TWO (2) and up
----- ------------ -------------------
16 $* $*
24 * *
32 * *
64 * *
64+ * *
Users defined as the total number of Fixed Terminals and RF Terminals.
Client Server to be announced.
*
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
FILED SEPARATELY WITH THE COMMISSION.
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EXHIBIT 6
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RIMS.2001 COMPUTER PROGRAM END-USER
LICENSE
(Nonexclusive; Object Code Only)
between
ROBOCOM SYSTEMS INC. (Licensor) of 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and
___________________________,of _________________________
LICENSOR'S PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD). LICENSOR DOES NOT
SELL OR TRANSFER TITLE TO THE LICENSED PROGRAM TO YOU. YOUR LICENSE OF THE
LICENSED PROGRAM WILL COMMENCE UPON EXECUTION OF THIS AGREEMENT BY BOTH PARTIES
AS EVIDENCED BY AUTHORIZED SIGNATURES BEING AFFIXED.
1. License.
In consideration of the payment of the license fees set forth Licensor
grants you a nonexclusive license to use the RIMS.2001 computer program and
data in machine-readable form.
2. Scope of Rights. You may:
1. Install the Single Site Licensed Program in your own facility for the
number of users specified in the License and Purchase Agreement
2. Use and execute the Licensed Program for purposes of serving the
internal needs of your business at the single site;
3. In support of your authorized use of the Licensed Program, store the
Licensed Program's machine-readable instructions or data in, transmit
it through, and display it on machines associated with the specified
computer; and
4. Make copies of the Program in machine-readable, object code form, for
nonproductive back-up purposes only, provided that Licensor's
proprietary legend is included.
4. Support.
Licensor will support the Licensed Program for a one year Limited
Warrantee. Additional software maintenance is as specified in Maintenance
Agreement if purchased. However, Licensor offers support only for the two
most current versions of the Licensed Program issued by Licensor from time
to time, so you must make sure to obtain and substitute or incorporate all
new releases or fixes issued by Licensor pursuant to its warranty and
support programs.
5. Your Responsibilities.
You are responsible for selecting an operator who is qualified to operate
the Licensed Program on your own equipment and is familiar with the
information, calculations, and reports that serve as input and output of
the Licensed Program. Licensor reserves the right to refuse assistance or
to charge additional fees if an operator seeks assistance with respect to
such basic background information or
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any other matters not directly relating to the operation of the Licensed
Program.
The Licensed Program is designed for use with the peripheral equipment and
accessories. You are also responsible for ensuring a proper environment and
proper utilities for the computer system on which the Licensed Program will
operate, including an uninterrupted power supply.
6. Proprietary Protection and Restrictions.
Licensor will have sole and exclusive ownership of all right, title, and
interest in and to the Licensed Program and all modifications and
enhancements thereof (including ownership of all trade secrets and
copyrights pertaining thereto), subject only to the rights and privileges
expressly granted to you herein by Licensor. This Agreement does not
provide you with title or ownership of the Licensed Program, but only a
right of limited use. You must keep the Licensed Program free and clear of
all claims, liens, and encumbrances.
You may not use, copy, modify, or distribute the Licensed Program
(electronically or otherwise), or any copy, adaptation, transcription, or
merged portion thereof, except as expressly authorized by Licensor. You may
not reverse assemble, reverse compile, or otherwise translate the Licensed
Program. Your rights may not be transferred, leased, assigned, or
sublicensed except for a transfer of the Licensed Program in its entirety
to (1) a successor in interest of our entire business who assumes the
obligations of this Agreement or (2) any other party who is reasonably
acceptable to Licensor, enters into a substitute version of this Agreement,
and pays an administrative fee intended to cover attendant costs. No
service bureau work, multiple-user license, or timesharing arrangement is
permitted, except as expressly authorized by Licensor. You may not install
the Licensed Program in any other computer system or use it at any other
location without Licensor's express authorization obtained in advance
(which will not be unreasonably withheld); provided that you may transfer
the Licensed Program to another computer temporarily if the computer
specified is inoperable.
If you use, copy, or modify the Licensed Program or if you transfer
possession of any copy, adaptation, transcription, or merged portion of the
Licensed Program to any other party in any way not expressly authorized by
Licensor, your license is automatically terminated.
You hereby authorize Licensor to enter your premises in order to inspect
the Licensed Program in any reasonable manner during regular business hours
to verify your compliance with the terms hereof.
You acknowledge that, in the event of your breach of any of the foregoing
provisions, Licensor will not have an adequate remedy in money or damages.
Licensor will therefore be entitled to obtain an injunction against such
breach from any court of competent jurisdiction immediately upon request.
Licensor's right to obtain injunctive relief will not limit its right to
seek further remedies.
If some third party claims that the Licensed Program infringes its patent,
copyright, or trade secret, or any similar intellectual property right,
Licensor will defend you against that claim at Licensor's expense and pay
all damages that a court finally awards, provided that you promptly notify
Licensor in writing of the claim, and allow Licensor to control, and
cooperate with Licensor in, the defense or any related settlement
negotiations. If such a claim is made or appears possible, you agree to
permit Licensor to enable you to continue to use the Licensed Programs, or
to modify or replace them. If Licensor determines that none of these
alternatives is reasonably available, you agree to return the Licensed
Program on Licensor's written request, and you will then receive a credit
equal
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to your net book value for the Licensed Program determined in accordance
with generally accepted accounting principles. However, Licensor has no
obligation for any claim based on your modification of the Licensed Program
or its combination, operation or use with any product, data or apparatus
not specified or provided by Licensor, provided that such claim solely and
necessarily is based on such combination, operation, or use and such claim
would be avoided by combination, operation, or use with products, data or
apparatus specified or provided by Licensor. THIS PARAGRAPH STATES
LICENSOR'S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF
INFRINGEMENT.
7. Limited Warranty and Limitation of Liability.
Licensor warrants, for your benefit alone, that the Licensed Program
conforms in all material respects to the USER MANUALS for the current
version of the Licensed Program set forth. This warranty is expressly
conditioned on your observance of the operating, security, and data-control
procedures set forth in the User's Manual included with the Licensed
Program. This warrantee is granted by the Licensor to the Licensee for a
period of One Year (1) after acceptance by the Licensee.
Licensor is not responsible for obsolescence of the Licensed Program that
may result from changes in your requirements. The foregoing warranty will
apply only to the most recent version of the Licensed Program issued by
Licensor from time to time. Licensor assumes no responsibility for the use
of superseded, outdated, or uncorrected versions of the Licensed Program.
As your exclusive remedy for any material defect in the Licensed Program
for which Licensor is responsible, Licensor will attempt through reasonable
effort to correct or cure any reproducible defect by issuing corrected
instructions, a restriction, or a bypass. Licensor will not be obligated to
correct, cure, or otherwise remedy any nonconformity or defect in the
Licensed Program if you have made any changes whatsoever to the Licensed
Program, if the Licensed Program has been misused or damaged in any
respect, or if you have not reported to Licensor the existence and nature
of such nonconformity or defect promptly upon discovery thereof.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR DISCLAIMS ANY
AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE
LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY
REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT
DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABLITY OR FITNESS FOR A PARTICULAR
USE.
The cumulative liability of Licensor to you for all claims relating to the
Licensed Program and this Agreement, including any cause of action sounding
in contract, tort, or strict liability, will not exceed the total amount of
all license fees paid to Licensor hereunder. This limitation of liability
is intended to apply without regard to whether other provisions of this
Agreement have been breached or have proven ineffective. This limitation of
liability will not apply to the indemnification provided in Section 6
hereof. Licensor will have no liability for loss of data or documentation,
it being understood that you are responsible for reasonable backup
precautions.
In no event will Licensor be liable for any loss of profits; any
incidental, special, exemplary, or consequential damages; or any claims or
demands brought against you, even if Licensor has been advised of the
possibility of such claims or demands. This limitation upon damages and
claims is intended to apply without regard to whether other provisions of
this Agreement have been breached
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or have proven ineffective.
8. Term of Agreement; Termination.
Your license of the Licensed Program will become effective upon delivery of
the Licensed Program to you and will continue indefinitely, unless sooner
terminated as provided herein.
Upon termination of this Agreement, all rights granted to you will
terminate and revert to Licensor. Promptly upon termination of this
Agreement for any reason or upon discontinuance or abandonment of your
possession or use of the Licensed Program, you must return or destroy, as
requested by Licensor, all copies of the Licensed Program in our possession
(whether modified or unmodified), and all other materials pertaining to the
Licensed Program (including all copies thereof). You agree to certify your
compliance with such restriction upon Licensor's request.
9. Miscellaneous.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
No modification of this Agreement will be binding unless it is in writing
and is signed by an authorized representative of the party against whom
enforcement of the modification is sought.
Any notices required or permitted under this Agreement will be in writing
and delivered in person or sent by registered or certified mail, return
receipt requested, with proper postage affixed.
In the event that any of the terms of this Agreement is or becomes or is
declared to be invalid or void by any court or tribunal of competent
jurisdiction, such term or terms will be null and void and will be deemed
severed from this Agreement and all the remaining terms of this Agreement
will remain in full force and effect.
THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF LICENSOR'S
OBLIGATIONS AND RESPONSIBILITIES TO YOU AND SUPERSEDES ANY OTHER PROPOSAL,
REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF LICENSOR RELATING TO
THE SUBJECT MATTER HEREOF.
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