Distributor Agreement December, 1995
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Robocom Systems, Inc. ("ROBOCOM" ), 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx
00000, XXX and Xxxxxxx International Holding LTD and its subsidiaries
("Xxxxxxx"), Xxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, XX0X 0XX, Xxxxxx Xxxxxxx,
wish to enter into an Agreement whereby Xxxxxxx will distribute in the United
Kingdom, Ireland, and in other countries as provided for below, Inventory &
Warehouse Control Systems Software ("Software") developed by ROBOCOM. This
Software is more fully defined in the attached price list, Exhibit l.
Now, therefore, ROBOCOM and Xxxxxxx agree this 30 day January of 1996 as
follows:
1. Objective
Both ROBOCOM and Xxxxxxx desire to develop and maintain a profitable
long-term, mutually beneficial business relationship whereby Xxxxxxx
distributes and supports, in the U.K., Ireland, Sweden, Denmark, Norway and
Germany. Inventory and Warehouse control Systems Software developed by
ROBOCOM.
2. Terms
For a period of three years beginning with the date shown below (the
"initial period"), Xxxxxxx will be the exclusive distributor, on a
non-transferable basis, of ROBOCOM Software in the United Kingdom and
Ireland, Sweden, Denmark, Norway and Germany, subject to other provisions
contained herein. At least one year prior to the end of the initial period,
Xxxxxxx and ROBOCOM will review the relationship and by mutual agreement
identify the conditions under which the relationship will be continued or
expanded. If mutual written agreement is not reached, this agreement will
automatically terminate upon completion of the initial period. Both parties
agree to devote all reasonable efforts to maximize profitable sales during
this period.
2.1 In the event Xxxxxxx fails to produce $* (USD) in revenues in sales of
RIMS.2001 License fees within * years of the Agreement date, Robocom will
at its option, be permitted to cancel this Agreement.
3. Territory
During the initial period, Xxxxxxx will be the exclusive distributor for
ROBOCOM in the United Kingdom and Ireland, Sweden, Denmark, Norway and
Germany, (the "territory"), subject to exclusions identified herein.
Xxxxxxx may have access to sell into another distributor territories if the
headquarters of the purchasing entity is located in the Territory. In the
event another distributor sells to a purchasing entity with headquarters
in its exclusive terrirory but with locations in the Territory. such sales
will be permitted. On a nonexclusive basis during the initial period, or
until such time that a distributer is established in Europe, Xxxxxxx may
also distribute ROBOCOM's Software elsewhere in Europe. ROBOCOM may agree
in the future to xxxxx Xxxxxxx long-term rights to distribute ROBOCOM's
Software elsewhere in Europe. Orders placed with Xxxxxxx from companies
headquartered in the Territory may be installed by Xxxxxxx at any location
in the world.
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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Distributor Agreement December, 1995
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4. ROBOCOM Obligations
ROBOCOM will provide standard Software to meet Minerva's customer
requirements, as mutually agreed upon in advance by Xxxxxxx and
ROBOCOM. ROBOCOM will provide application specific custom software, as
mutually agreed upon in advance by Xxxxxxx and ROBOCOM.
ROBOCOM will provide to Xxxxxxx and its customers error correction support
for ROBOCOM software as part of its maintenance program. This service will
be provided in a prompt, professional manner. ROBOCOM warrants that the
Software works in compliance with Manuals and other ROBOCOM supplied
documentation, when the Software is operated in its intended environment
and for its intended use.
ROBOCOM will provide Xxxxxxx a single current production DOS and UNIX
runtime copy of its Software for demonstration and training purposes only.
ROBOCOM will also provide Xxxxxxx with three copies of all of its User
Documentation, for demonstration and training purposes only.
ROBOCOM will provide Xxxxxxx with up to 2,000 copies (300 initially) of its
existing marketing literature initially. After this, additional copies of
existing or new literature will be provided at a cost of $1.00 U.S. per
set, excluding shipping.
ROBOCOM will provide new releases of Software in a timely manner and,
working with Xxxxxxx, will ensure that the Software evolves to meet market
needs.
5. Xxxxxxx Obligations
Xxxxxxx represents and warrants that it has the expertise, experience,
knowledge of the regional market and financial resources to successfully
market, technically support and license the Software in the Territory and
to achieve significant market penetration in the Territory.
Xxxxxxx 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, Xxxxxxx 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.
Xxxxxxx 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, Xxxxxxx will submit to ROBOCOM a
detailed marketing plan, describing how Xxxxxxx intends to market ROBOCOM's
Software, and the resources Xxxxxxx will devote to this effort.
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Xxxxxxx 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
Minerva's proposal except by prior written agreement. Xxxxxxx will require
that all customers for R080COM's Software sign a Software License Agreement
identical to that shown in Exhibit 2, and that they comply with other
reasonable conditions to protect ROBOCOM'S interests.
Xxxxxxx will provide initial technical support for its customers using
ROBOCOM software.
Xxxxxxx 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 that Xxxxxxx has not violated any portions of
this agreement. If an independent auditor is appointed by ROBOCOM for this
purpose, Xxxxxxx will provide said auditor with access to its records
during normal business hours.
6. Joint Obligations
ROBOCOM and Xxxxxxx will work together to make sure ROBOCOM's software
evolves to meet market needs in the Territory, and so that both parties
keep current on market development activities in these areas.
7. Source Code/Confidential Information
ROBOCOM will supply source Code to Xxxxxxx only after the following
training has been successfully completed:
a. At Minerva's expense, at least one (1) Technical Consultant from
Xxxxxxx will undergo formal training on ROBOCOM's products for an
appropriate period. This training will be repeated for one or more
Xxxxxxx employees should the individual(s) previously trained leave
the employ of Xxxxxxx.
b. At Minerva's expense, at least one (1) Technical Specialist from
Xxxxxxx (experienced PROGRESS Programmers with extensive UNIX and DOS
knowledge) will undergo formal training on ROBOCOM's products. This
training will be repeated for one or more Xxxxxxx employees should the
individual(s) previously trained leave the employ of Xxxxxxx.
Xxxxxxx 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 Xxxxxxx 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.
Xxxxxxx 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
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Distributor Agreement December, 1995
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of care Xxxxxxx uses to protect its own confidential information of a
similar nature. Xxxxxxx agrees that it Will require all those individuals
having access to the Software under this Agreement to execute a written
Confidentiality Agreement identical to that shown in Exhibit 3.
Xxxxxxx further acknowledges that, in the event of an actual or threatened
violation of the foregoing provision of which Xxxxxxx has actual knowledge,
Xxxxxxx 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 Minerva'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 Xxxxxxx (2) is known to Xxxxxxx at the
time of disclosure; (3) is rightfully received by Xxxxxxx from a third
party without breach of this Agreement; (4) is furnished to a third parry
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 Xxxxxxx 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.
8. Inventions
Any modifications, changes, or improvements made by Xxxxxxx 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
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, Xxxxxxx 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 to ROBOCOM. Maintenance will
be the responsibility of Xxxxxxx on all changes not incorporated into the
standard RIMS product.
9. Termination
This Agreement will automatically terminate three years from the date
shown below unless extended in its current or modified form by mutual
written agreement or subject to the conditions established in Paragraph
2.1.
This Agreement may be terminated at any time by mutual written Agreement.
This agreement will terminate if either party defaults in its obligations
and fails to cure such default within 30 days after receiving written
notice from the other party identifying the default.
This Agreement will terminate immediately if Xxxxxxx xxxxx, attempts to
sell, agrees to sell, or
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Distributor Agreement December, 1995
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attempts to develop any products meaning Inventory and Warehouse Control
Systems Software competing with those provided by ROBOCOM
If termination is a result of a default by Xxxxxxx, Xxxxxxx will
immediately return to ROBOCOM all Software, Manuals, and other
documentation, and all copies of same, provided to it by ROBOCOM, otherwise
Xxxxxxx may keep all software, manuals and other documentation in its
possession for a period of 36 months with the sole purpose of supporting
its existing customers or until such a time as alternative support
arrangements can be made satisfactory to both parties.
10. Fees and Payment: Maintenance Payment
Beginning with the first system installed, for ROBOCOM Standard Software
sold to Xxxxxxx customers headquartered in the Territory, or elsewhere in
Europe (as long as the right to distribute ROBOCOM's Software in Europe has
not been revoked), for which Xxxxxxx takes primary installation and support
responsibility, Xxxxxxx 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 Xxxxxxx, for their
modules purchased and installed. Should Xxxxxxx for any reason decline to
take primary installation and/or support responsibility for any systems
installed, Xxxxxxx and ROBOCOM will negotiate in advance an equitable
increase in the amount due ROBOCOM.
For ROBOCOM Standard Application Software sold to Xxxxxxx customers
headquartered in the Territory, or elsewhere in Europe (as long as the
right to distribute ROBOCOM's Software in Europe has not been revoked), but
installed in the United States, Canada, or Mexico, ROBOCOM will retain
responsibility for installation and support. For these installations,
Xxxxxxx will pay an amount equal to *% of the then current list prices.
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 Xxxxxxx
continues to support the customer directly. If ROBOCOM provides direct
customer support, it will receive *% of the maintenance fee.
Amounts to ROBOCOM, except for annual maintenance fees, will be paid by
Xxxxxxx 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 Xxxxxxx and ROBOCOM will be in US dollars.
The attached price list may be modified by ROBOCOM at any time, with 90
days advance notice to Xxxxxxx. 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 prorata to U.S. pricing.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. FILED
SEPARATELY WITH THE COMMISSION.
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Distributor Agreement December, 1995
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By mutual written agreement, ROBOCOM and Xxxxxxx may modify the pricing
conditions on a case-by-case basis.
ROBOCOM agrees that, for the initial three year terms of this Agreement,
customer maintenance charges will be contained with RPI + 5% of the
maintenance costs in the country of installation.
11. Governing Law
This Agreement will be governed exclusively by, and construed in accordance
with, the laws of the State of New York USA.
12. Independent Businesses
Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx.
13. Modifications
No revision or modification hereof will be effective unless it is in
writing and signed by both parties.
14. Indemnity Clause
ROBOCOM will protect and save harmless and defend at its own expense
Xxxxxxx from and against any and all claims of infringements of patents,
trade marks or industrial designs copyrights or other property rights
affecting the Products. Xxxxxxx agrees to give ROBOCOM prompt notice of any
such claim that is made against Xxxxxxx 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:
1. Procure for Xxxxxxx the right to continue to use the Software or
infringing part thereof; or
2. Modify or amend the Software or infringing part thereof so that it
becomes non-infringing; or
3. Replace the Software or infringing part thereof by other software of
similar acceptable capability; or
4. Pay Xxxxxxx 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
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Distributor Agreement December, 1995
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third parties.
5. The conditions of the indemnity clause identified herein apply only to
ROBOCOM's supplied RIMS applications code.
15. 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:
If to Xxxxxxx:
Xxxxxxx International Holding LTD
Xxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxxxxxxxxx
XX000XX
England
Attention: Company Secretary
If to ROBOCOM:
ROBOCOM Systems, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx
Xxx Xxxx
00000
XXX
Attn: Company Secretary
16. No Assignment
Xxxxxxx may not assign any rights or delegate any duties under this
Agreement without ROBOCOM's prior written consent, and any attempt to do so
without consent will be void.
17. 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
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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.
18. Force Majeure
Neither party will be liable to the other or be deemed in breach of any
obligation hereunder if its performance is prevented or delayed by any
strike, labor difficulty, riot, storm, act of government, fire, act of God,
material shortage, or any other cause, whether similar or dissimilar,
beyond the reasonable control of such party or its supplier, provided that
such party gives the other party prompt written notice of such condition
and uses its best efforts to resume performance as soon as the condition
has abated.
IN WITNESS WHEREOF, the parties hereunto have signed this Agreement this 30 day
of January 1996.
Xxxxxxx International Holdings LTD ROBOCOM Systems, Inc.
/s/ X. XXXXXXXXX /s/ XXXXX XXXXX
---------------------------------- -----------------------------------
Signature Signature
Xxxxx Xxxxxxxxx Xxxxx Xxxxx
---------------------------------- -----------------------------------
Typed Name Typed Name
Director Executive Vice President
---------------------------------- -----------------------------------
Title Title
* * *
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Distributor Agreement December, 1995
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EXHIBIT ONE
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Distributor Agreement December, 1995
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International RIMS(C) Pricing, 1996
RIMS.2001(C)
International RIMS Pricing, 1996
RIMS.2001(C)
USERS SITE ONE (1) SITE TWO (2) and up
----- ------------ -------------------
16 $* $*
24 * *
32 * *
64 * *
64+ * *
Users defined as the total number of Fixed Terminals and RF Terminals.
Client Server to be announced.
*
All License Fee Transactions will be at 1.5 Dollars ($) per Pound ((pound))
Sterling, until such time the exchange rates vary (plus or minus) by ten percent
(10%). At such time a new transaction rate will be established.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. FILED SEPARATELY
WITH THE COMMISSION.
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Distributor Agreement December, 1995
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EXHIBIT TWO
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Distributor Agreement December, 1995
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Date: December 21, 1995
COMPUTER PROGRAM END-USER
LICENSE AGREEMENT
(Nonexclusive; Object Code Only)
between
ROBOCOM SYSTEMS INC. (Licensor) of 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 and
Xxxxxxx International Holding LTD (Licensee) of Xxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xx000XX, Xxxxxxx.
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 herein,
Licensor grants you a nonexclusive license to use the package of computer
programs and data in machine-readable form and related materials, including
documentation and listings, identified in Appendix A, Paragraph 1 which
together constitute the "Licensed Program," subject to the following terms
and conditions.
2. Scope of Rights.
You may:
a. Install the Licensed Program in your own facility at the location
specified in Appendix A;
b. Use and execute the Licensed Program on the computer specified by
type/model and serial (or plant number) in Appendix A for purposes of
serving the internal needs of your business:
c. 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
d. Make copies of the Program in machine-readable, object code form, for
nonproductive backup purposes only, provided that Licensors
proprietary legend is included.
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Distributor Agreement December, 1995
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3. Fees and Payments.
The license fee for the Licensed Program is specified in Appendix A. Total
contract value including hardware, software and terms of payment are
specified in Appendix B.
You are solely responsible for payment of any taxes (including sales or use
taxes, intangible taxes, and property taxes) resulting from your acceptance
of this license and your possession and use of the Licensed Program,
exclusive of taxes based on Licensor's income. Licensor reserves the right
to have you pay any such taxes as they fall due to Licensor for remittance
to the appropriate authority. You agree to hold harmless Licensor from all
claims and liability arising from your failure to report or pay such taxes,
exclusive of both taxes based on Licensor's income and any occupational and
business license taxes imposed by Delaware law on the Licensor.
4. Support.
Licensor shall support the Licensed Program in the manner specified in
Appendix A. However, Licensor offers support only for the two most current
version 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 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. Except as agreed otherwise in writing, Licensor assumes no
responsibility under this Agreement for obtaining or providing such
equipment. 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.
Except as agreed otherwise in writing, Licensor assumes no responsibility
under this Agreement for converting your data files for use with the
Licensed Program.
6. Proprietary Protection and Restrictions.
Licensor shall 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
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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 your 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 time-sharing 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 Licensors 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 shall 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 shall not limit its right to
seek further remedies.
If a 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 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.
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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 ninety (90) days 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 shall
apply only to the most current 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 shall attempt through
reasonable effort to correct or cure any reproducible defect by issuing
corrected instructions, a restriction, or a bypass. Licensor shall 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
MERCHANTABILITY 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, shall 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
shall not apply to the indemnification provided in Section 6 hereof. Licensor
shall have no liability for loss of data or documentation, it being understood
that you are responsible for reasonable backup precautions.
In no event shall 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 or have
proven ineffective.
8. Term of Agreement; Termination.
Your license of the Licensed Program shall become effective upon delivery
of the Licensed Program to you and shall 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
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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 your 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 shall be governed by ant construed in accordance with the
laws of the State of New York.
No modification of this Agreement shall 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 shall 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 shall be null and void and shall be deemed
severed from this Agreement and all the remaining terms of this Agreement
shall 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.
Accepted and Approved:
Robocom Systems Inc. Xxxxxxx International Holding, LTD
By: _____________________________ By: _____________________________
Title: __________________________ Title ___________________________
Date: ___________________________ Date: ___________________________
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Robocom Systems Inc. & Xxxxxxx International Holdings LTD Page 16
Distributor Agreement December, 1995
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EXHIBIT THREE
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Robocom Systems Inc. & Xxxxxxx International Holdings LTD Page 17
Distributor Agreement December, 1995
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CONFIDENTIALITY AGREEMENT
BETWEEN FIRMS
AGREEMENT and acknowledgment between ROBOCOM Systems Inc. (Company), and
Xxxxxxx International Holdings LTD.
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) in the United Kingdom, Ireland, Sweden, Denmark, Norway and
Germany.
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 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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Agreement Between: Page 18
Xxxxxxx International Holdings LTD and ROBOCOM Systems, Inc.
December, 1995
Distributor Agreement December, 1995
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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 date of this agreement, or becomes common knowledge
within the industry thereafter.
Agreed and Accepted: Agreed and Accepted:
ROBOCOM Systems Inc. Xxxxxxx International Holdings LTD
_______________________________ __________________________________
Signature Signature
by: Xxxxxxxx Xxxxx by: Xxxxx Xxxxxxxxx
Title :Executive Vice President Title: ___________________________
Date: _________________________ Date: ____________________________
***********
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Agreement Between: Page 19
Xxxxxxx International Holdings LTD and ROBOCOM Systems, Inc.
December, 1995
