EXHIBIT 10.4
▇▇▇▇▇▇
MICRO(R) Content Agreement-Tech Notes I & II
LEADING THE WAY IN WORLDWIDE DISTRIBUTION
THIS AGREEMENT ("Agreement") dated as of September 2, 1999 is by and
between ▇▇▇▇▇▇ Micro Inc. ("Ingram"), a Delaware corporation having an
address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
and Lab Technologies having an address at ▇▇▇▇ ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Reseller").
The parties agree as follows:
1. DELIVERY AND LICENSE. Pursuant to this Agreement, Ingram may provide
Reseller data and information, which may include text, music, video,
drawings and photographs that may be updated from time to time, regarding
Tech Notes I & II (collectively "Content") for use by Reseller including
but not limited to, display via the WORLD WIDE WEB, CD-ROM disk, and other
electronic media. Ingram hereby grants Reseller a nonexclusive, limited,
worldwide license to use and display to End Users the Content. Reseller
may, at its discretion, make minor additions or minor changes to data from
the Content but Reseller is not authorized to alter Content data or the
facts or data structure thereof. Any use, distribution, display or
transmission not expressly authorized in this Section 1 or to other than
Reseller's and users is a material breach of the Agreement and Ingram may
seek all available remedies at law and in equity.
2. USE. Reseller agrees that whether or not Ingram owns all proprietary
rights in materials and data comprising the Content, Ingram owns the
copyright in the selection coordination, enhancement, arrangement, and
computation of the Content, including the fields and data structures
thereof. Reseller will not use, reproduce, display, transmit or
restructure the Content or the selection, coordination, announcement,
arrangement, or compilation of such Content or the fields and data
structures thereof accept as expressly authorized pursuant to Section 1.
3. WARRANTIES. Ingram warrants that it either is the owner of all
applicable rights necessary to provide the Content to Reseller or has
acquired all such necessary rights and permission from the owner(s) of
those rights. Ingram does not warrant that the distribution of the Content
will be uninterrupted or error time. Ingram shall not be responsible for
screening, editing, or monitoring the Content prior to its delivery to
Reseller.
4. NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, INGRAM MAKES NO OTHER WARRANTIES AND RESELLER ACKNOWLEDGES THAT
THE CONTENT IS DISTRIBUTED "AS IS." INGRAM HEREBY SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
CONTENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
5. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED HEREIN, UNDER
NO CIRCUMSTANCES SHALL ▇▇▇▇▇▇ BE LIABLE TO THE RESELLER OR ANY THIRD PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN
IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING
FROM THE USE OR INABILITY TO USE THE CONTENT, OR ANY OTHER PROVISIONS OF
THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO LOSS OF REVENUE, ANTICIPATED
PROFITS OR LOST BUSINESS.
6. INDEMNITY. Each party will defend, indemnify, save and hold harmless
the other party and the officers, directors, agents, affiliates,
distributors, franchises and employees of the other party from any and all
third party claims, demands, liability, cost or expenses, including
reasonable attorney's fees ("Liabilities") resulting from the indemnifying
party's material breach of any duty, representation, or warranty of this
Agreement, except where Liabilities result from the gross negligence or
knowing and willful misconduct of the other party.
7. TERM AND TERMINATION. This Agreement shall be effective from the
Commencement Date for a period of one (1) year and shall automatically
renew on the anniversary unless terminated by written notice of either
party thirty (30) days prior to the expiration. Either party may terminate
this Agreement without cause upon thirty (30) days written notice to the
other party. Ingram may terminate this Agreement immediately for cause
upon written notice which notice will include a ten (10) day opportunity to
cure. Upon termination Reseller shall immediately cease all use and
display of the Content and upon request by Ingram promptly return all
software, materials and documentation embodying or relating to the Content.
8. FEES. Reseller agrees to pay Ingram a one-time License fee of One
Thousand Dollars ($1,000.00) due and payable thirty (30) days after invoice
date.
9. GOVERNING LAW. The validity, construction, and performance of this
Agreement will be governed by the substantive law of the State of
California, not including its law of conflicts of law, if any provision of
this Agreement is held by a court of competent jurisdiction to be illegal,
invalid, unenforceable, or otherwise contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect.
10. ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other unless that assignment
occurs in connection with the acquisition of substantially all of a party's
assets or by reason of a merger or corporation reorganization.
11. INDEPENDENT CONTRACTOR. The parties hereto hereby agree that in the
performance of their respective obligations hereunder, they are, and shall
be, independent contractors and not agents of each other.
12. WAIVER. The failure of either party to enforce or to exercise, at any
time or for any period of time, any term of or any right arising pursuant
to this Agreement does not constitute, and will not be construed as, a
waiver of such term or right, and shall in no way affect that party's right
later to enforce or exercise it.
13. CONFIDENTIAL INFORMATION. Each party acknowledges that confidential
information may be disclosed to the other party
--------------------------------------------------------------------------
Lab Technologies Page 1 September 2, 1999
20-036556 Confidential
during the course of this Agreement. Each party agrees that it shall take
reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information (at all times executing at least
reasonable care), during the period this Agreement is in effect, and for a
period of three (3) years following expiration or termination of this
Agreement to prevent the duplication or disclosure of confidential
information to others than by or to employees or agents who must have
access to the confidential information to perform such party's obligations
hereunder.
14. NOTICES. All notices or other communications required to be given
hereunder shall be in writing and delivered either personally or by mail or
overnight courier to the parties at the address provided to each party
below, unless such address has been changed in accordance with this
provision. All notices so mailed shall be deemed received two (2) days
after postmark date.
15. ENTIRE AGREEMENT. The provisions of this Agreement or other
Agreements authorizing Reseller to use the content constitute the entire
Agreement between the parties as to the subject matter hereof. No
amendment, modification, or waiver of any provision of this Agreement shall
be effective unless it is set forth in writing that refers to the Agreement
and provisions so affected and as secured by authorized representatives of
each party.
--------------------------------------------------------------------------
Agreed as of the Commencement Date stated above.
"Reseller" "Ingram"
Lab Technologies ▇▇▇▇▇▇ Micro Inc.
▇▇▇▇ ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By:
------------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇
------------------------- --------------------------
Title: e-Commerce Manager Title: Vice President, eSolutions
------------------------- --------------------------
Date: October 28, 1999 Date:
------------------------- --------------------------
--------------------------------------------------------------------------
Lab Technologies Page 2 September 2, 1999
20-036556 Confidential
▇▇▇▇▇▇
MICRO(R) ELECTRONIC DATA TRANSFER AGREEMENT
LEADING THE WAY IN WORLDWIDE DISTRIBUTION
THIS AGREEMENT ("Agreement") dated as of September 2, 1999 is by and
between ▇▇▇▇▇▇ Micro Inc. ("Ingram"), a Delaware corporation having an
address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
and Lab Technologies having an address at ▇▇▇▇ ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee").
In consideration of the mutual promises contained herein, Ingram and
Licensee agree as follows:
1. INFORMATION AND SOFTWARE DEFINED. Ingram shall provide to Licensee
product pricing, descriptions and/or availability information in the
form of electronic reports and real time queries, any and all such
agreed upon information and reports and parts thereof when pertain to
the Licensee and set-up documentation hereinafter referred to as the
"Information." Ingram shall also provide one (1) copy of the RPC
software for Licensee's internal use only ("Software").
2. LICENSE TO USE. Ingram hereby grants Licensee a limited, non-exclusive,
non-assignable license to use the Information and Software
for Licensee's internal sales and pricing analysis and/or to provide
real-time price (cost) and availability information to present to the
internet to Licensee's and customers, for use only in price and
availability queries and /or purchases from Ingram and for no other
purpose. All information will be sent via inside line.
Notwithstanding the above, the Licensee may assign its right to use
the Information and Software to a third party, independent consultant
with whom it has contracted, provided that Ingram is notified of
Licensee's intent to sub-license the Information or Software and
Ingram grants such assignment in writing.
3. TERM AND TERMINATION. The term of this Agreement shall commence on
the date indicated above and shall continue until Licensee ceases to
be a customer of Ingram, subject to ▇▇▇▇▇▇'▇ right to terminate this
Agreement at any time upon thirty (30) days written notice, or
immediately upon Licensee's breach of this Agreement. Upon
termination, Licensee agrees to immediately return all information
and/or Software, including any copies thereof regardless of form, to
Ingram, or if Ingram so requests, to certify to Ingram that all
Information and Software and copies have been destroyed.
4. COPYRIGHTS. Licensee acknowledges that the Information and Software
are the property of Ingram and that the granting of a license to use
the Information and Software hereunder shall in no way constitute or
be construed as a grant of any proprietary interests or copyrights in
the Information or Software. Licensee agrees that it will not copy,
scan, duplicate or reproduce any of the Information or Software in any
manner whatsoever, except that Licensee shall be permitted to create
additional copies of the Information for its internal use only and as
permitted under Section 2.
5. NON-DISCLOSURE. Licensee agrees to hold in confidence and not to
directly or indirectly use, reveal, report, publish, disclose or
transfer to any other person or entity any of the Information, or
utilize any of the Information or Software for any purpose at any time
except as permitted under Section 2. Licensee shall have the right to
disclose the Information and Software to employees of Licensee and any
Ingram authorized independent contractor to the extent necessary to
perform tasks directly related to the permitted uses; provided,
however, that the Licensee shall take steps to ensure that such
persons conduct themselves so as to preserve the confidentiality of
the Information and Software, whether or not such Information and
Software is marked as confidential. The obligations stated in this
Paragraph 5 shall survive the termination of this Agreement for a
period of two (2) years.
6. REMEDY IN EVENT OF UNAUTHORIZED DISCLOSURE OF USE. Because of the
unique and proprietary nature of the Information and Software, it is
understood and agreed that ▇▇▇▇▇▇'▇ remedies at law for breach by
Licensee of its obligations under this Agreement will be inadequate
and that Ingram shall, in the event of such breach by Licensee, be
entitled to equitable relief (including, without limitation,
injunctive relief and specific performance) without any requirement to
post a bond as a condition for such relief, in addition to all other
remedies under this Agreement or available at law.
7. DISCLAIMER OF LIABILITY. INGRAM MAKES NO WARRANTY, EITHER EXPRESS OR
IMPLIED ON THE SOFTWARE OR INFORMATION. ALL INFORMATION AND SOFTWARE
ARE PROVIDED TO LICENSEE "AS IS." INGRAM HEREBY DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS AND IMPLIED, RELATING TO THE SOFTWARE AND
INFORMATION INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF
MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
8. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ▇▇▇▇▇▇ BE
LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE
OR INABILITY TO USE THE SOFTWARE OR INFORMATION, OR ANY OTHER
PROVISIONS OF THIS AGREEMENT,
--------------------------------------------------------------------------
Lab Technologies Page 1 September 23, 1999
20-036556 Confidential
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, ANTICIPATED PROFITS OR LOST
BUSINESS.
9. INDEMNIFICATION. Licensee shall indemnify, defend and hold harmless
Ingram from and against any claims, actions, damages, demands,
liabilities, costs and expenses (including reasonable attorney's fees)
resulting from any act or omission of Licensee or Licensee's
independent contractor under this Agreement.
10. ADDITIONAL PROVISIONS. This Agreement shall be governed by the laws
of the State of California. This Agreement contains the full and
complete understanding of the parties with respect to the subject
matter hereof and supersedes all prior representations or
understanding, whether oral or written. Notwithstanding the
termination or expiration of any other agreement between the parties,
the obligations created hereunder shall continue indefinitely. As
information and Software shall only be used within the fifty United
States, export is not permitted.
Agreed as of the date first written above.
"Reseller" "Ingram"
Lab Technologies ▇▇▇▇▇▇ Micro Inc.
▇▇▇▇ ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
By: By:
------------------------- --------------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇
------------------------- --------------------------
Title: Title: Vice President, eSolutions
------------------------- --------------------------
Date: October 28, 1999 Date:
------------------------- --------------------------
--------------------------------------------------------------------------
Lab Technologies Page 2 September 23, 1999
20-036556 Confidential