ex_10-4.htm


    
      
        

        

      

      Exhibit
10.4

       

      

      
        

      

    

    SERVICES
AND SOFTWARE LICENSE AGREEMENT

    


    GMS
Capital Corp.

    (Hereafter
referred to as “GMS”)

    


    And

    _________________________________________________

    (Hereafter referred to as
“Client”) have agreed as follows:

    


    
      	
              1.  

            	
              DEFINITIONS

            


    

    
      	
              1.1.  

            	
              “ManageThePipe”
      (hereafter referred to as “MTP”) means a turnkey replenishment solution
      provided to client and major retailers comprised of a software (the ManageThePipe software
      or MTPS), a database, a browser interface, the required hardware and
      services, provided by GMS to the
Client;

            


    

    
      	
              1.2.  

            	
              “ManageThePipe software”
      (hereafter referred to as “MTPS”) means the software or computer program
      comprise of a set of instructions or statements, expressed, fixed,
      embodied or stored in any manner, including the source and object code,
      that is used to bring about the specific result as specified in the MTP’s
      or GMS documentation, containing the data from the Client and the retailer
      as provided for and formatted by
GMS;

            


    

    
      	
              1.3.  

            	
              “Retailer” means Client’s
      trading partner who sells or distributes Client’s items to mass
      consumers;

            


    

    
      	
              1.4.  

            	
              “Dedicated Network
      Server” (hereafter referred to as “DNS”) means the server which is
      part of the intranet or network of the Client and linked through the
      Internet or other network to other computers of GMS and the
      Client;

            


    

    


    
      	
              2.  

            	
              NON-EXCLUSIVE
      LICENCE GRANTED

            


    

    
      	
              2.1.  

            	
              Upon
      payment of the fees provided hereafter, GMS hereby grants to Client the
      right to access and use, pursuant to the provisions of this Agreement,
      MTPS on the DNS for the purpose of conducting queries and obtaining
      printed or electronic copies of query results the rights to a backup
      system which may simultaneously or alternatively run within or without the
      DNS, the right to use the documentation provided by GMS and the right to
      copy MTPS for archival or backup purposes.

            


    

    
      	
              2.2.  

            	
              All
      copyrights, trade secrets and other proprietary rights, in MTPS and MTP,
      together with related documentation, shall remain the property of
      GMS.

            


    

    
      	
              2.3.  

            	
              Except
      for archival or backup purposes, Client shall not copy or allow his
      employee, agent or third party to copy MTPS or documentation that is
      subject to the said proprietary
rights.

            


    

    
      	
              2.4.  

            	
              Client
      agrees not to cause or permit the reverse engineering, disassembly or
      decompilation of MTPS, except to the extent required to obtain
      interoperability with other independently created software or as specified
      by law. Client may not give, relicense, rent or lease MTPS or use MTPS for
      third-party training, commercial time-sharing or service bureau use,
      whether for any form of consideration or for
  free.

            


    

    


    
      	
              3.  

            	
              BASIC
      AND TECHNICAL SUPPORT SERVICES

            


    

    
      	
              3.1.  

            	
              Upon
      payment of the fees and subject to the terms and conditions in Schedule A,
      GMS shall provide Client with a copy of MTPS, as well as turnkey
      installation of the software on the DNS. GMS will supply the Client,
      provided license and technical support fees have been paid, the
      following:

            


    

    
      	
              3.1.1.  

            	
              System
      upgrades, including on-going improvements in the developments and
      functionality of MTPS, based on its technical performance only. Features
      upgrades will be invoiced separately to the Client upon
    order.

            


    

    
      	
              3.1.2.  

            	
              Updates
      to changes in Retailer data format used by the
  Client.

            


    

    
      	
              3.2.  

            	
              Upon
      payment of the fees, GMS shall provide Client with supplementary technical
      support services as provided for in Schedule A and B incorporated
      herein.

            


    

    
      	
              3.3.  

            	
              GMS
      will provide consulting and training services agreed to by the parties
      under the terms of this Agreement. All consulting services shall be billed
      on a time and materials basis unless the parties expressly agree otherwise
      in writing.

            


    

    
      	
              3.4.  

            	
              For
      any on-site services requested by Client, Client shall reimburse GMS for
      actual, reasonable travel and out-of-pocket expenses approved in advance
      by Client.

            


    

    


    
      	
              4.  

            	
              ACCESS

            


    

    
      	
              4.1.  

            	
              The
      license of MTPS will grant access to users based on the number of user
      access licenses purchased. Each user shall have its own personal
      identification number and password to access
  MTPS.

            


    

    
      	
              4.2.  

            	
              Client
      shall provide, at his own expense, GMS with unrestricted and unlimited
      access to the installed MTPS on the DNS in order to allow GMS to perform
      the services. In the case of direct physical access, such access shall be
      within reason during normal business hours and with 24 hours advanced
      notice outside of normal business
hours.

            


    

    
      
        

      

      
        GMS
Retail Systems Inc.

      

      360
St-Jacques West, suite 1815, Mtl, PQ Canada H2Y 1P5

      Tel:
(514) 287-0103 Fax: (514) 940-3217 E-mail:
info@managethepipe.com



    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

      

      
        
          

        

      

    

    
      	
              5.  

            	
              CONFIDENTIALITY
      UNDERTAKINGS BY BOTH PARTIES

            


    

    
      	
              5.1.  

            	
              For
      the purposes of this Agreement, “Confidential Information” shall mean
      information received by the parties’ employees or agents that is not
      generally known to the receiving party, or which would logically be
      considered confidential and/or “Proprietary” by the disclosing party. In
      the case of GMS, "Confidential Information", includes proprietary
      information relating to or derived from the design of MTPS and MTP
      systems; MTPS, research, development, plans and processes related thereto,
      as well as all business strategies, architecture, business practices and
      processes, pricing under this agreement including for license and
      services, and plans for the future of GMS. In the case of the Client,
      "Confidential Information" includes proprietary information relating to or
      derived from the Client's data or from data received from Retailers,
      identification numbers and passwords, and all confidential information
      relating to the Client's business, products, business strategies, business
      practices and processes, as well as research, development, and plans for
      the future.

            


    

    
      	
              5.2.  

            	
              During
      the term of this Agreement and thereafter for a period of five years after
      disclosure of the Confidential Information or for a period of two years
      after termination of this Agreement, whichever is earlier all confidential
      information shall remain in confidence by the parties’ employees and
      agents and shall not be disclosed to or through any third party and shall
      be protected with the same degree of care as the parties normally use in
      the protection of their own confidential and proprietary Information. The
      parties further agree not to use confidential and/or proprietary
      information received from the other party for any purpose, except as is
      necessary for the parties to fulfill their business obligations under this
      Agreement.

            


    

    
      	
              5.3.  

            	
              The
      restrictions herein shall not apply with respect to confidential
      information 1- which is already available to the public, 2- becomes
      available to the public through no fault of one of the parties employees
      or agents, or 3- is already known to one of the parties as shown by
      written records in such party’s possession at the time that the
      confidential information was received from the other
  party.

            


    

    
      	
              5.4.  

            	
              Nothing
      in this Agreement shall be construed to grant Client a license to any
      Confidential Information disclosed or to any patents, patent applications
      or copyrights derived from the Confidential Information disclosed. Client
      specifically agrees and understands that the MTPS and all products, trade
      secrets or any of the ideas and expressions related to MTPS and MTP and
      all physical embodiments thereof and material developed in relation
      thereto by GMS are and shall remain the property of GMS. Software
      developed independently by Client for its own internal use in processing
      and integrating data received through the ManageThePipe remain the
      property of Client. Such software shall remain confidential under the
      terms of this Agreement.

            


    

    


    
      	
              6.  

            	
              TERMS
      AND CONDITIONS

            


    

    
      	
              6.1.  

            	
              Services
      will be invoiced according to the current posted price schedule at the
      time of invoicing

            


    

    
      	
              6.2.  

            	
              Travel
      and other expenses will be invoiced where
  applicable.

            


    

    
      	
              6.3.  

            	
              Invoices
      are due payable upon receipt. All unpaid sums shall bear interest of 1%
      per month or 12% per year calculated on a daily basis until payment is
      made as of the date of invoicing subject that any sum paid within 30 days
      of the invoicing date shall bear no
interest.

            


    

    
      	
              6.4.  

            	
              Price
      schedule may change from time to time. GMS will provide 30 days prior
      notice of all changes in posted price
schedule.

            


    

    
      	
              6.5.  

            	
              The
      fee schedule does not include
taxes.

            


    

    


    
      	
              7.  

            	
              TERM
      AND TERMINATION

            


    

    
      	
              7.1.  

            	
              This
      agreement shall commence as of the date it is signed by all parties. If
      not otherwise specified, this Agreement and each Application license
      granted under this Agreement shall continue in perpetuity unless
      terminated under this Agreement.

            


    

    
      	
              7.2.  

            	
              During
      the first six months, either party may terminate this Agreement upon
      thirty (30) days prior written notice to the other party. After the first
      six months, this Agreement is automatically renewed for three years
      periods. At the end of any three year period, either party may terminate
      this Agreement upon 90 days prior written notice to the other party.
      However, termination shall not relieve their obligations in Article 2, 5,
      7 and 9.

            


    

    
      	
              7.3.  

            	
              GMS
      may terminate this Agreement by written notice to Client, effective
      immediately if:

            


    

    
      	
              7.3.1.  

            	
              Client
      commits any default or breach under this
  agreement;

            


    

    
      	
              7.3.2.  

            	
              Client
      fails to pay any moneys due on the due date or neglects or fails to
      perform or observe any other provision of this Agreement, which is not
      cured within thirty (30) days following written notice from GMS;
      or

            


    

    
      	
              7.3.3.  

            	
              Client
      becomes insolvent or voluntarily
bankrupt;

            


    

    
      
        

      

      
        GMS
Retail Systems Inc.

      

      360
St-Jacques West, suite 1815, Mtl, PQ Canada H2Y 1P5

      Tel:
(514) 287-0103 Fax: (514) 940-3217 E-mail: info@managethepipe.com

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

        

      

    

    
      
        

      

    

    
      	
              7.3.4.  

            	
              An
      involuntary petition in bankruptcy against Client is not dismissed within
      ninety (90) calendar days of
filing;

            


    

    
      	
              7.3.5.  

            	
              A
      receiver, assignee or other liquidating officer is appointed for all or
      substantially all of Client’s
business;

            


    

    
      	
              7.3.6.  

            	
              Client
      makes an assignment for the benefit of creditors;
  or

            


    

    
      	
              7.3.7.  

            	
              Client
      ceases to carry on business in the normal
  course.

            


    

    
      	
              7.4.  

            	
              Upon
      termination of this Agreement by either party for any reason, Client shall
      immediately cease using MTPS and return to GMS the original and all copies
      of the software or related materials licensed pursuant to this Agreement
      and shall delete or destroy any electronic copies made of such materials,
      which cannot be returned to GMS. Client shall certify in writing its
      compliance with this provision. To that effect, Client authorizes GMS to
      examine the DNS remotely or physically and to remove the said property
      provided GMS make sure that Client’s property is not damaged by doing so
      and take all necessary measure to protect Client’s property. Upon
      termination of this Agreement, GMS shall be entitled to retain all monies
      paid to it by Client and shall be entitled to claim and receive all monies
      owing to it by Client, without prejudice to any other rights and remedies
      which GMS may have as a result of said
  termination.

            


    

    


    
      	
              8.  

            	
              WARRANTIES

            


    

    
      	
              8.1.  

            	
              INTELLECTUAL
      PROPERTY WARRANTY GMS warrants that it has the right to provide the Client
      with a copy of and use of MTPS and, where applicable, to grant the Client
      the license to use the Software. GMS will defend and indemnify Client
      against any, cost, expense (including reasonable attorneys fees incurred
      as a result of any third party claim that MTPS infringe a copyright,
      patent, trade secret or other intellectual property right, provided that:
      (a) Client notifies GMS in writing within thirty (30) days of the claim;
      (b) GMS has sole control of the defense and all related settlement
      negotiations; and (c) Client provides GMS with the assistance, information
      and authority necessary to perform GMS's obligations under this Section.
      GMS will reimburse Client's reasonable out-of-pocket expenses incurred in
      providing such assistance. GMS shall have no liability for any claim of
      infringement based on use of a superseded or altered release of MTPS if
      the infringement would have been avoided by the use of a current unaltered
      release of MTPS provided that GMS has provided such release prior to the
      date of alleged infringement without charge to Client. If MTPS is held or
      believed by GMS to infringe, GMS shall have the option, at its expense, to
      (a) modify MTPS to be non-infringing; or (b) obtain for Client a license
      to continue using MTPS. If it is not commercially reasonable to perform
      either of the above options, then GMS may terminate the license for the
      infringing Applications and refund the license fees paid for MTPS,
      prorated over a two (2) year term from the date of this Agreement. This
      section states GMS's entire liability and Client's exclusive remedy for
      infringement

            


    

    
      	
              8.2.  

            	
              PERFORMANCE WARRANTY GMS
      warrants for a period of one (1) year from the Commencement Date that each
      MTPS license will perform substantially as described in the Documentation
      (unless modified by a party other than GMS in which case this warranty is
      void.) GMS warrants for a period of one (1) year from the delivery of any
      Upgrade, Patch or Enhancement (as defined under this Agreement) that such
      Upgrade, Patch or Enhancement will perform substantially as described in
      the Documentation therefore if any.

            


    

    
      	
              8.3.  

            	
              MEDIA WARRANTY GMS
      warrants the tapes, diskettes or other media to be free of material
      defects in materials and workmanship under normal use for ninety (90) days
      from the Commencement Date.

            


    

    
      	
              8.4.  

            	
              SERVICES WARRANTY GMS
      warrants that its Technical Support, training and consulting services will
      be performed consistent with generally accepted industry standards. This
      warranty shall be valid for ninety (90) days from performance of
      service.

            


    

    
      	
              8.5.  

            	
              OTHER WARRANTY. Hardware
      and software manufactured and sold by third parties are covered by these
      manufacturers and third parties and are not subject to any warranty by
      GMS.

            


    

    
      	
              8.6.  

            	
              DISCLAIMERS The
      warranties above are exclusive and in lieu of and GMS disclaims all other
      warranties, whether express or implied, including the implied warranties
      of merchantability and fitness for a particular purpose. In no event shall
      GMS be liable for any indirect, incidental, special or punitive damages
      occurring out of or in connection with the delivery, use or performance,
      or failure thereof, of the service, Software or ManageThePipe software,
      the Retailer or Client Database. GMS does not warrant that the service,
      Software or ManageThePipe software will perform uninterrupted or error
      free, that any deficiency can or will be corrected, or that the functions
      or performance of the service, Software or ManageThePipe software will
      meet Client’s requirements. Client is solely responsible for the
      formulation of all searches on ManageThePipe and the results
      obtained.

            


    

    
      	
              8.7.  

            	
              The
      information provided through the service or contained in MTPS shall be
      obtained from sources considered by GMS to be reliable, but the accuracy,
      currency and completeness thereof are not guaranteed and GMS shall have no
      liability for any inaccuracies, errors or omissions with respect to the
      information provided through the service or contained in MTPS regardless
      of the source or cause of any such error or
  omission.

            


    

    
      
        

      

      
        GMS
Retail Systems Inc.

      

      360
St-Jacques West, suite 1815, Mtl, PQ Canada H2Y 1P5

      Tel:
(514) 287-0103 Fax: (514) 940-3217 E-mail:
info@managethepipe.com



     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    
      

      
        

      

    

     

    
      	
              8.8.  

            	
              If
      the service, Software or ManageThePipe software provided by or operated or
      distributed by GMS malfunctions or fails to perform properly or at all,
      and the malfunction or failure is a cause of inadequate results obtained
      by the Client, then Client’s exclusive remedy and the total liability of
      GMS shall be limited to providing sufficient access to reiterate the query
      during which the malfunction, failure or negligence
    occurred.

            


    

    
      	
              8.9.  

            	
              In
      no event will GMS’s cumulative liability for any claim arising out of or
      in connection with this Agreement, exceed the amounts paid by Client to
      GMS in the previous 12 month period preceding the date of occurrence of
      the event leading to said claim.

            


    

    


    
      	
              9.  

            	
              GENERAL

            


    

    
      	
              9.1.  

            	
              GMS
      may from time to time, and in its sole discretion, change the content or
      format of MTPS in accordance with general changes made to its standard
      service offering. The terms, conditions and fees applicable to use of MTPS
      may be changed from time to time upon reasonable notice to Client if any
      increase in fees shall be reasonably justified by
  GMS.

            


    

    
      	
              9.2.  

            	
              This
      Agreement and any rights arising out of this Agreement may not be assigned
      in whole or in part by Client without the written consent of GMS. Such
      consent will not be unreasonably withheld. In the event of a change of
      ownership of the Client, this agreement can be assigned to the new
      owner.

            


    

    
      	
              9.3.  

            	
              This
      Agreement constitutes the entire Agreement between the parties hereto
      pertaining to the subject-matter hereof and supersedes all prior
      agreements, understandings, representations, negotiations and discussions,
      whether oral or written, of the parties hereto, and there are no
      warranties, representations or other agreements between the parties hereto
      in connection with the subject-matter hereof except as specifically set
      forth herein. No waiver, alteration or amendment of this Agreement or any
      Schedule shall be effective unless in writing and authorized in writing by
      an authorized representative of GMS. The terms and conditions in this
      Agreement shall prevail notwithstanding any variance with the terms and
      conditions of any order submitted by
GMS.

            


    

    
      	
              9.4.  

            	
              GMS
      shall not be liable for any default or delay resulting from circumstances
      beyond its reasonable control or in case of Force
  majeure.

            


    

    
      	
              9.5.  

            	
              Since
      unauthorized use or disclosure of the Software, the service or MTPS could
      result in the violation of the copyright, proprietary rights, and/or trade
      secrets interests that are embodied in same, if Client breaches any of
      Client’s obligations with respect to limited use of same GMS will be
      entitled to all remedies available at law to protect its interests
      therein, including but not limited to injunctive relief as well as money
      damages.

            


    

    
      	
              9.6.  

            	
              GMS
      may utilise electronic means to provide Client with notice of changes to
      the applicable terms and conditions or applicable fees set out in this
      Agreement. GMS may also propose the formation of new agreements through
      electronic means. The assent to such contracts through electronic means by
      Client or any user utilising Client’s identification and associated
      password shall be equivalent to Client’s written signature, and Client
      agrees to be bound to such
agreement.

            


    

    
      	
              9.7.  

            	
              The
      terms of this Agreement shall be construed according to the laws and shall
      be subject to the exclusive jurisdiction of the courts of the Province of
      Quebec, Canada. Client agrees to commence any action relating to or
      arising from this Agreement in such
courts.

            


    

    
      	
              9.8.  

            	
              Any
      terms which by their nature are intended to survive the termination of
      this Agreement shall continue in full force and effect after termination,
      which terms shall include, but not be limited to Article 5
      (Confidentiality), Article 8 (Disclaimer of Warranties; Limitation of
      Liability) and Article 9 (General).

            


    

    
      	
              9.9.  

            	
              The
      invalidity or unenforceability of any provision or covenant in this
      Agreement shall not affect the validity or enforceability of any other
      provision or covenant herein contained, and this Agreement shall be
      construed as if such invalid or unenforceable provision or covenant were
      omitted.

            


    

    
      	
              9.10.  

            	
              The
      waiver by either party of any default of breach of this Agreement shall
      not constitute a waiver of any other or subsequent default or breach.
      Except for actions for nonpayment or breach of GMS's proprietary rights in
      MTPS, no action, regardless of form, arising out of this Agreement may be
      brought by either party more than two years after the cause of the action
      has accrued.

            


    

    
      	
              9.11.  

            	
              All
      notices, including notices of address change, required to be sent
      hereunder shall be in writing and shall be deemed to have been given when
      mailed by registered mail to the following
  address:

            


    

    


    
      	
              GMS
      Capital Corp.

            	 
      	
              Client

            
	
              360
      St-Jacques O, suite 1815

            	 
      	
              Street

            
	
              Montreal,
      PQ 2Y 1P5

            	 
      	
              City

            
	
              (514)
      287-0103

            	 
      	
              Telephone

            
	
              (514)
      940-3217

            	 
      	
              Fax

            
	
              info@managethepipe.com

            	 
      	
              Email

            


    

    


    
      
        
        

      

      
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              9.12.  

            	
              The
      parties hereby confirm their express will that this Agreement and all
      documents relating thereto be drawn up in English only, but without
      prejudice to any such documents or instruments which may from time to time
      be drawn up in French only, or in both French and English. Les parties aux
      présentes confirment leur volonté que le présent contrat de même que tous
      autres documents s’y rapportant soient rédigés en anglais seulement, mais
      sans préjudice cependant à tous tels documents qui pourront à l’occasion
      être rédigés en français seulement ou à la fois en français et en
      anglais.

            


    

    


    
      	 
      	
              GMS

            	 
      	 
      	
              CLIENT

            
	 
      	
              GMS
      CAPITAL CORP.

            	 
      	 
      	 
      
	
              PER
      :

            	 
      	 
      	
              PER
      :

            	 
      
	
              TITLE
      :

            	 
      	 
      	
              TITLE
      :

            	 
      
	
              DATE
      :

            	 
      	 
      	
              DATE
      :

            	 
      


    

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
          

        

        
          GMS
Retail Systems Inc.

        

        360
St-Jacques West, suite 1815, Mtl, PQ Canada H2Y 1P5

        Tel:
(514) 287-0103 Fax: (514) 940-3217 E-mail: info@managethepipe.com

         

         

         

         

        5