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EXHIBIT 10.3
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
TECH DATA CORPORATION
AND
PIRANHA INTERACTIVE PUBLISHING, INC.
[Confidential portions of this exhibit have been deleted and filed separately
with the Securities and Exchange Commission]
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SOFTWARE DISTRIBUTION AGREEMENT
THIS AGREEMENT, DATED AS OF THIS 23RD DAY OF SEPTEMBER, 1996 (THE
"EFFECTIVE DATE"), IS BETWEEN TECH DATA CORPORATION, A FLORIDA CORPORATION
("TECH DATA"), WITH ITS PRINCIPAL CORPORATE ADDRESS AT ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ AND PIRANHA INTERACTIVE PUBLISHING, INC. AN ARIZONA
CORPORATION ("PIRANHA"), WITH ITS PRINCIPAL CORPORATE ADDRESS AT ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS
A. Tech Data desires to purchase certain Products from Piranha from time
to time and Piranha desires to sell certain Products to Tech Data in accordance
with the terms and provisions set forth in this Agreement.
B. Piranha desires to appoint Tech Data as its non-exclusive distributor
to market Products within the territory defined below and Tech Data accepts such
appointment on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the Recitals, the mutual covenants
contained in this Agreement and other good and valuable consideration, Tech Data
and Piranha hereby agree as follows:
ARTICLE I. DEFINITIONS, APPOINTMENT AND TERM OF AGREEMENT
1.1 Definitions. The following definitions shall apply to this Agreement.
(a) "Customers" of Tech Data shall include dealers, resellers, value
added resellers, mail order resellers and other entities that
acquire the Products from Tech Data for resale, specifically
excluding End Users.
(b) "DOA" shall mean Product, or any portion thereof, which fails to
operate properly on initial "burn in", boot, or use, as applicable.
(c) "Documentation" shall mean user manuals, training materials,
product descriptions and specifications, brochures, technical
manuals, license agreements, supporting materials and other printed
information relating to the Products, whether distributed in print,
electronic, or video format.
(d) "End Users" shall mean the final retail purchasers or licensees
who have acquired Products for their own use and not for resale,
remarketing or redistribution.
(e) "Non-Sellable Products" shall mean any Product that has been
returned to Tech Data by its Customers that has had the outside
shrink wrapping or other packaging seal broken or any components of
the original package are missing, damaged or modified.
(f) "Products" shall mean, individually or collectively, the sealed
software packages comprised of the computer programs encoded on
media together with manuals, materials and other contents of the
packages associated therewith, if any, as more fully described in
Schedule 5.1 attached hereto.
(g) "Services" means any warranty, maintenance, advertising,
marketing or technical support and any other services performed or
to be performed by Piranha.
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(h) "Territory" shall mean worldwide, subject only to Product
distribution restrictions, if any, set forth in Schedule 5.1.
1.2 Term of Agreement. The term of this Agreement shall commence on the
Effective Date and, unless terminated by either party as set forth in this
Agreement, shall remain in full force and effect for a term of one (1)
year, and will be automatically renewed for successive one (1) year terms
unless prior written notification of termination or non-renewal is
delivered by one of the parties in accordance with the notice provision of
this Agreement.
1.3 Appointment as Distributor. Piranha hereby grants to Tech Data the
non-exclusive right and license to distribute Products during the term of
this Agreement within the Territory, together with any updates or
enhancements to the Products and any new releases related to the Products.
This license includes the right to order, possess and distribute the
Products to Customers and to provide the Products to Customers for use on
demonstration units. Piranha and Tech Data acknowledge and agree that the
license to use the Product is solely between Piranha and the End User and
is governed by the terms of the Piranha's standard use license enclosed
with the Product. This Agreement does not grant Piranha or Tech Data an
exclusive right to purchase or sell Products and shall not prevent either
party from developing or acquiring other vendors or customers or competing
Products. Tech Data will use commercially reasonable efforts to promote
distribution of the Products. Piranha agrees that Tech Data may obtain
Products in accordance with this Agreement for the benefit of subsidiaries
of Tech Data. Wholly owned subsidiaries of Tech Data shall be entitled to
order Products directly from Piranha pursuant to this Agreement.
ARTICLE II. PURCHASE ORDERS
2.1 Issuance and Acceptance of Purchase Order.
(a) This Agreement shall not obligate Tech Data to purchase any
Products or services except as specifically set forth in a written
purchase order.
(b) Tech Data may issue to Piranha one or more purchase orders
identifying the Products Tech Data desires to purchase from Piranha.
The terms and provisions of this Agreement shall govern all purchase
orders except that purchase order may include other terms and
provisions which are consistent with the terms and provisions of
this Agreement, or which are mutually agreed to by Tech Data and
Piranha. Purchase orders will be placed by Tech Data by fax or
electronically transferred. On or after the date of shipment,
Piranha shall invoice Tech Data for the purchase of the Product.
(c) A purchase order shall be deemed accepted by Piranha unless
Piranha notifies Tech Data in writing within five (5) days after
receiving the purchase order that Piranha does not accept the
purchase order.
2.2 Purchase Order Alterations or Cancellations. Prior to shipment of
Products, Piranha shall accept alterations or cancellation to a
purchase order in order to: (i) change a location for delivery, (ii)
modify the quantity or type of Products to be delivered or (iii)
correct typographical or clerical errors.
2.3 Evaluation or Demonstration Purchase Orders. Piranha shall provide to
Tech Data a reasonable number of demonstration or evaluation products
at no charge.
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2.4 Product Shortages. If for any reason Piranha's production is not on
schedule, Piranha may allocate available inventory to Tech Data and make
shipments based upon a fair and reasonable percentage allocation among
Piranha's customers. Such allocations shall not impact the calculation of
performance rebates.
ARTICLE III. DELIVERY AND
ACCEPTANCE OF PRODUCTS
3.1 Acceptance of Products. Tech Data shall, after a reasonable time to
inspect each shipment, accept Product (the "Acceptance Date") if the
Products and all necessary documentation delivered to Tech Data are in
accordance with the purchase order. Such reasonable time shall not exceed
thirty (30) days. Any Products not ordered or not otherwise in accordance
with the purchase order, (e.g. mis-shipments, overshipments) may be
returned to Piranha at Piranha's expense (including without limitation
costs of regular/ground shipment or storage). Piranha shall refund to Tech
Data within ten (10) business days following notice thereof, all monies
paid in respect to such rejected Products. Tech Data shall not be required
to accept partial shipment unless Tech Data agrees prior to shipment.
3.2 Title and Risk of Loss. FOB Destination. Risk of loss or damage to
Products shall pass to Tech Data at the time that the Products are
delivered to Tech Data warehouse. Piranha and Tech Data agree that no
title or ownership of the proprietary rights to any software code is
transferred by virtue of this Agreement notwithstanding the use of terms
such as "purchase", "sale" or the like within this Agreement. Piranha
retains all ownership rights and title to any software code within the
Products.
3.3 Transportation of Products. Piranha shall deliver the Products clearly
marked on the Product package with serial number (if applicable), product
description and machine readable UPC bar code to Tech Data at the location
shown and on the delivery date set forth in the applicable purchase order
or as otherwise agreed upon by the parties. Charges for regular/ground
transportation of the Products from Piranha to Tech Data's warehouse or
other delivery site that the parties have agreed upon shall be paid by
Piranha. Piranha shall use only those common carriers preapproved by Tech
Data or listed in Tech Data's published routing instructions, unless prior
written approval of Tech Data is received.
ARTICLE IV. RETURNS
4.1 Inventory Adjustment. Piranha agrees to accept return of overstocked
Products as determined by Tech Data, in Tech Data's reasonable discretion.
Such Products may include any ordered under the initial order. Shipments
of Product being returned shall be new, unused and in sealed cartons.
Piranha shall credit Tech Data's account in the amount of the price paid
by Tech Data therefor less any price protection credits (the "Return
Credit").
4.2 Defective Products/Dead on Arrival (DOA). Tech Data shall have the right
to return to Piranha for credit any DOA Product that is returned to Tech
Data within sixty (60) days after the initial delivery date to the End
User and any Product that fails to perform in accordance with Piranha's
product warranty. Piranha shall bear all costs of regular/ground shipping
and risk of loss of DOA and in-warranty Products to Piranha's location and
back to Tech Data or Tech Data's Customer. If Piranha delivers defective
and DOA Product of more than [*] percent ([*]%) in any fiscal quarter of
Tech Data, Piranha shall issue an additional [*] percent ([*]%) discount
credit to Tech Data's account for all Products purchased during any such
quarter.
4.3 Obsolete or Outdated Product. Tech Data shall have the right to return for
full credit, without limitation as to the dollar amount, all Products that
become obsolete or Piranha discontinues, updates, revises or are removed
from Piranha's current price list, provided Tech Data returns
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Exchange Commission.
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such Products within one hundred fifty (150) days after Tech Data receives
written notice from Piranha that such Products are obsolete, superseded by
a newer version, discontinued or are removed from Piranha's price list.
4.4 Miscellaneous Returns.
(a) Bad Box. Tech Data shall return for credit Products which have
boxes that are or become damaged. Piranha will supply to Tech Data,
at no charge, any and all material(s) which are missing in the
original Product package.
(b) Non-Sellable. Tech Data may return Non-Sellable Product to
Piranha for credit.
ARTICLE V. PAYMENT TO VENDOR
5.1 Charges, Prices and Fees for Products. Charges, prices, quantities and
discounts, if any, for Products shall be determined as set forth in
Schedule 5.1, or as otherwise mutually agreed upon by the parties in
writing, and may be confirmed at the time of order. In no event shall
charges exceed Piranha's then current established charges. Tech Data shall
not be bound by any of Piranha's suggested prices.
5.2 Payment. Except as otherwise set forth in this Agreement, any undisputed
sum due to Piranha pursuant to this Agreement shall be payable as follows:
[*]% prepay, 2%-10, net sixty (60) days after the invoice receipt. Piranha
shall invoice Tech Data no earlier than the applicable shipping date for
the Products covered by such invoice. Products which are shipped from
outside the United States shall not be invoiced to Tech Data prior to the
Products being placed on a common carrier within the United States for
final delivery to Tech Data. The due date for payment shall be extended
during any time the parties have a bona fide dispute concerning such
payment. Notwithstanding anything herein to the contrary, for the initial
order under this Agreement, or any initial order of a new Product, payment
shall be made by Tech Data upon resale of the Products.
[*]
5.3 Invoices. A "correct" invoice shall contain (i) Piranha's name and invoice
date, (ii) a reference to the purchase order or other authorizing
document, (iii) separate descriptions, unit prices and quantities of the
Products actually delivered, (iv) credits (if applicable), (v) shipping
charges (if applicable) (vi) name (where applicable), title, phone number
and complete mailing address as to where payment is to be sent, and (vii)
other substantiating documentation or information as may reasonably be
required by Tech Data from time to time.
5.4 Taxes. Tech Data shall be responsible for franchise taxes, sales or use
taxes or shall provide Piranha with an appropriate exemption certificate.
Piranha shall be responsible for all other taxes, assessments, permits and
fees, however designated, which are levied upon this Agreement or the
Products, except for taxes based upon Tech Data's income. Piranha shall be
responsible for any V.A.T. tax which may be imposed upon any sale of
Products to Tech Data; Tech Data shall be responsible for any V.A.T. tax
which may be imposed on any sale of Products by Tech Data to Tech Data's
Customers. No taxes of any type shall be added to invoices without the
prior written approval of Tech Data.
5.5 Fair Pricing and Terms. Piranha represents that the prices charged and the
terms offered to Tech Data are and will be at least as beneficial to Tech
Data as those charged or offered by Piranha to any of its other like
distributors in the territory. If Piranha offers price discounts, payment
discounts, promotional discounts or other special prices to its other like
distributors in
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Exchange Commission.
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the territory, Tech Data shall also be entitled to participate and receive
notice of the same no later than other like distributors in the territory.
5.6 Price Adjustments.
(a) Price Increases. Piranha shall have the right to increase prices
from time to time, upon written notice to Tech Data not less than
sixty (60) days prior to the effective date of such increase. All
orders placed prior to the effective date of the increase, for
shipment within sixty (60) days after the effective date, shall be
invoiced by Piranha at the lower price.
(b) Price Decreases. Piranha shall have the right to decrease prices
from time to time, upon written notice to Tech Data not less than
thirty (30) days prior to the effective date of such decrease.
Piranha shall grant to Tech Data, its subsidiaries and Tech Data's
Customers a price credit for the full amount of any Piranha price
decrease on all Products on order, in transit and in their inventory
on the effective date of such price decrease. Tech Data shall,
within sixty (60) days after receiving written notice of the
effective date of the price decrease, provide a list of all Products
for which it claims a credit, and within 120 days, will provide a
list of all Products for which its Customers claim price protection
credits. Piranha shall have the right to a reasonable audit at
Piranha's expense.
5.7 Advertising.
(a) Cooperative Advertising. Piranha offers a [*] percent ([*]%)
co-op program as set forth in Schedule 5.7, and may offer additional
advertising credits, or other promotional programs or incentives to
Tech Data as it offers to its other distributors or customers. Tech
Data shall have the right, at Tech Data's option, to participate in
such programs. Attached as Schedule 5.7 is a copy of Piranha's co-op
policy.
(b) Advertising Support. Piranha shall provide at no charge to Tech
Data and the Customers of Tech Data, marketing support, and
advertising materials in connection with the resale of Products as
are currently offered or that may be offered by Piranha. Tech Data
reserves the right to charge Piranha for advertising, marketing and
training services which have been preapproved by the parties in
writing.
(c) Prior to receipt of the initial purchase order, Piranha shall
pay Tech Data for all launch funds expenditures that Piranha and
Tech Data have agreed to in writing related to the Products.
ARTICLE VI. WARRANTIES, INDEMNITIES
AND OTHER OBLIGATIONS OF VENDOR
6.1 Warranty. Piranha hereby represents and warrants that Piranha has all
right, title, ownership interest and/or marketing rights necessary to
provide the Products to Tech Data. Piranha further represents and warrants
that it has not entered into any agreements or commitments which are
inconsistent with or in conflict with the rights granted to Tech Data in
this Agreement; the Products are new and shall be free and clear of all
liens and encumbrances; Tech Data and its Customers and End Users shall be
entitled to use the Products without disturbance; the Products have been
listed with Underwriters' Laboratories or other nationally recognized
testing laboratory whenever such listing is required; the Products meet
all FCC requirements; the Products do and will conform to all codes, laws
or regulations; and the Products conform in all respects to the Product
warranties. Piranha agrees that Tech Data shall be entitled to pass
through to Customers of Tech Data and End Users of the Products all
Product warranties granted by Piranha in the enduser license agreement
provided with each product, as attached. Tech Data
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Exchange Commission.
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shall have no authority to alter or extend any of the warranties of
Piranha expressly contained or referred to in this Agreement without prior
approval of Piranha. Piranha has made express warranties in this Agreement
and in the End User license agreement. EXCEPT AS SET FORTH HEREIN OR
THEREIN, PIRANHA DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE
TERMINATION OR EXPIRATION OF THIS AGREEMENT.
6.2 Proprietary Rights Indemnification. Piranha hereby represents and warrants
that the Products and the sale and use of the Products do not infringe
upon any copyright, patent, trade secret or other proprietary or
intellectual property right of any third party, and that there are no
suits or proceeding, pending or threatened alleging any such infringement.
Piranha shall indemnify and hold Tech Data, Tech Data's subsidiaries and
their respective, officers, directors, employees and agents harmless from
and against any and all actions, claims, losses, damages, liabilities,
awards, reasonable costs and expenses, which they or any of them incur or
become obligated to pay resulting from or arising out of any breach or
claimed breach of the foregoing warranty. Tech Data shall inform Piranha
of any such suit or proceeding filed against Tech Data and shall have the
right, but not the obligation, to participate in the defense of any such
suit or proceeding at Tech Data's expense. Piranha shall, at its option
and expense, either (i) procure for Tech Data, its Customers and End Users
the right to continue to use the Product as set forth in this Agreement,
or (ii) replace, to the extent Products are available, or modify the
Product to make its use non-infringing while being capable of performing
the same function without degradation of performance. Piranha shall have
no liability under this Section 6.2 for any infringement based on the use
of any Product, if the Product is used in a manner or with equipment for
which it was not reasonably intended. Piranha's obligations under this
Section 6.2 shall survive termination or expiration of this Agreement.
6.3 Indemnification.
(a) Vendor. Piranha shall be solely responsible for the design,
development, supply, production and performance of the Products.
Piranha agrees to indemnify and hold Tech Data, its subsidiaries and
their officers, directors and employees harmless from and against
any and all claims, damages, costs, expenses (including, but not
limited to, reasonable attorney's fees and costs) or liabilities
that may result, in whole or in part, from any warranty or product
liability claim, or any claim for infringement, or for claims for
violation of the warranties contained in Sections 6.1 and 6.2 of
this Agreement.
(b) Tech Data. Tech Data agrees to indemnify and hold Piranha, its
officers, directors and employees harmless from and against any and
all claims, damages, costs, expenses (including, but not limited to,
reasonable attorneys' fees and costs) or liabilities that may
result, in whole or in part, from Tech Data's gross negligence or
willful misconduct in the distribution of the Products pursuant to
this Agreement, or for representations or warranties made by Tech
Data related to the Products in excess of the warranties of Piranha.
6.4 Insurance.
(a) The parties shall be responsible for providing Workers'
Compensation insurance in the statutory amounts required by the
applicable state laws.
(b) Without in any way limiting Piranha's indemnification obligation
as set forth in this Agreement, Piranha shall maintain Commercial
General Liability and/or Comprehensive General Liability Insurance
in such amounts as is reasonable and standard for the industry.
Either policy form should contain the following coverages: Personal
and Advertising Injury, Broad Form Property Damage, Products and
Completed Operations, Contractual Liability, employees as Insured
and Fire Legal Liability.
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(c) Piranha will provide evidence of the existence of insurance
coverages referred to in this Section 6.4 by certificates of
insurance which should also provide for at least thirty (30) days
notice of cancellation, non-renewal or material change of coverage
to Tech Data. The certificates of insurance shall name Tech Data
Corporation as an additional insured for the limited purpose of
claims arising pursuant to this Agreement.
6.5 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF THE OTHER PARTY ARISING
FROM THE PERFORMANCE OR BREACH OF ANY TERMS OF THIS AGREEMENT.
6.6 ECCN/Export. Piranha agrees to provide Tech Data, upon signing this
Agreement and at any time thereafter that Piranha modifies or adds
Products distributed or to be distributed by Tech Data, with the Export
Control Classification Number (ECCN) for each of Piranha's Products, and
information as to whether or not any of such Products are classified under
the U.S. Munitions List.
6.7 Financial Statements.
Piranha and Tech Data agree that for the term of this Agreement, both
parties shall provide financial statements annually and semi annually as
follows:
a. Within one hundred and eighty (180) days after the end of each
party's fiscal year, audited financial statements for the fiscal
year prepared by an independent certified public accountant.
b. Within sixty (60) days after the end of each party's second
fiscal quarter, semi-annual unaudited financial statements, prepared
by an authorized representative.
Such financial statements shall include profit and loss statement, balance
sheets and such other accounting data as may be requested by either party
and be acknowledged by each party's authorized representative in writing
as true and correct.
6.8 Vendor Reports. Piranha shall, if requested, render monthly reports to
Tech Data setting forth the separate Products, dollars invoiced for each
Product, and total dollars invoiced to Tech Data for the month, and such
other information as Tech Data may reasonably request.
6.9 Tech Data Reports. Tech Data shall, if requested, render monthly sales out
reports on Tech Data's BBS system. Information provided will include:
month and year sales activity occurred, internal product number (assigned
by Tech Data), written description, state and zip-code of Customer's
location, unit cost (distributor's cost at quantity 1), quantity and
extended cost (cost times quantity). A monthly inventory report will be
provided on a paper format once a month.
6.10 Trademark Usage. Tech Data is hereby authorized to use trademarks and
trade names of Piranha and third parties licensing Piranha, if any, used
in connection with advertising, promoting or distributing the Products.
Tech Data recognizes Piranha or other third parties may have rights or
ownership of certain trademarks, trade names and patents associated with
the Products. Tech Data will act consistently with such rights, and Tech
Data shall comply with any reasonable, written guidelines when provided by
Piranha or third parties licensing Piranha related to such trademark or
trade name usage. Tech Data will notify Piranha of any infringement of
which Tech Data has actual knowledge. Tech Data shall discontinue use of
Piranha's trademarks or trade names upon termination or expiration of this
Agreement, except as may be necessary to sell or liquidate any final
inventories of Product.
ARTICLE VII. TERMINATION
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7.1 Termination.
(a) Termination With or Without Cause. Either party may terminate
this Agreement, without cause, upon giving the other party thirty
(30) days prior written notice. In the event that either party
materially or repeatedly defaults in the performance of any of its
duties or obligations set forth in this Agreement, and such default
is not substantially cured within thirty (30) days after written
notice is given to the defaulting party specifying the default, then
the party not in default may, by giving written notice thereof to
the defaulting party, terminate this Agreement or the applicable
purchase order relating to such default as of the date specified in
such notice of termination.
(b) Termination for Insolvency or Bankruptcy. Either party may
immediately terminate this Agreement and any purchase orders by
giving written notice to the other party in the event of (i) the
liquidation or insolvency of the other party, (ii) the appointment
of a receiver or similar officer for the other party, (iii) an
assignment by the other party for the benefit of all or
substantially all of its creditors, (iv) entry by the other party
into an agreement for the composition, extension, or readjustment of
all or substantially all of its obligations, or (v) the filing of a
petition in bankruptcy by or against a party under any bankruptcy or
debtors' law for its relief or reorganization which is not dismissed
within ninety (90) days.
7.2 Rights Upon Termination or Expiration.
(a) Termination or expiration of this Agreement shall not affect
Piranha's right to be paid for undisputed invoices for Products
already shipped and accepted by Tech Data or Tech Data's rights to
any credits or payments owed or accrued to the date of termination
or expiration. Tech Data's rights to credits upon termination or
expiration shall include credits against which Tech Data would, but
for termination or expiration, be required under this Agreement to
apply to future purchases.
(b) Piranha shall accept purchase orders from Tech Data for
additional Products which Tech Data has contractually obligated
itself, prior to termination to furnish to its Customers and does
not have in its inventory upon the termination or expiration of this
Agreement; provided Tech Data notifies Piranha of any and all such
transactions in writing within sixty (60) days following the
termination or expiration date.
(c) Upon termination or expiration of this Agreement, Tech Data
shall discontinue holding itself out as a distributor of the
Products.
7.3 Repurchase of Products Upon Termination or Expiration. Upon the effective
date of termination or expiration of this Agreement for any reason,
Piranha agrees to repurchase all Products in Tech Data's inventory or
which are returned to Tech Data within sixty (60) days following the
effective date of termination or expiration. Piranha will repurchase the
Products at the original purchase price, less any deductions for price
protection. The repurchase price shall not be reduced by any deductions or
offsets for early pay or prepay discounts. Such returns shall not reduce
or offset any co-op payments or obligations owed to Tech Data. Tech Data
shall submit to Piranha, within sixty-five (65) days after the termination
or expiration date, the quantity of Product that Tech Data will be
returning to Piranha for repurchase. Piranha will issue a Return Material
Authorization (RMA) to Tech Data for all such Products; provided, however,
that Piranha shall accept returned Products in accordance with this
Section absent an RMA if Piranha fails to issue said RMA within five (5)
business days of Tech Data's request. Piranha shall credit any outstanding
balances owed to Tech Data. If such credit exceeds amounts due from Tech
Data, Piranha shall remit in the form of a check to Tech Data the excess
within ten (10) business days of receipt of the Product. Customized
Products shall not be eligible for repurchase pursuant to this Section.
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7.4 Survival of Terms. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed
shall survive any such termination or expiration, or (ii) remain to be
performed or by their nature would be intended to be applicable following
any such termination or expiration. The termination or expiration of this
Agreement shall not affect either party's warranties, indemnifications,
obligations relating to returns, co-op advertising payments, payments,
credits or any other matters set forth in this Agreement that should
survive termination or expiration in order to carry out their intended
purpose, all of which shall survive the termination or expiration of this
Agreement.
ARTICLE VIII. MISCELLANEOUS
8.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be
binding on the parties and their respective successors and assigns.
Neither party shall have the power to assign this Agreement without the
prior written consent of the other party, which shall not be unreasonably
withheld.
8.2 Counterparts. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
parties.
8.3 Headings. The Article and Section headings used in this Agreement are for
reference and convenience only and shall not affect the interpretation of
this Agreement.
8.4 Relationship of Parties. Tech Data is performing pursuant to this
Agreement only as an independent contractor. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between Tech Data and Piranha. Neither party shall act or represent
itself, directly or by implication, as an agent of the other party.
8.5 Confidentiality. Each party acknowledges that in the course of performance
of its obligations pursuant to this Agreement, it may obtain certain
information specifically marked as "confidential" and/or "proprietary".
Each party hereby agrees that all such information communicated to it by
the other party, its subsidiaries, or Customers, whether before or after
the Effective Date, shall be and was received in strict confidence, shall
be used only for purposes of this Agreement, and shall not be disclosed
without the prior written consent of the other party, except as may be
necessary by reason of legal, accounting or regulatory requirements beyond
either party's reasonable control. The provisions of this Section shall
survive the term or termination of this Agreement for any reason for a
period of one (1) year after termination or expiration.
8.6 Arbitration. Any disputes arising under this Agreement shall be submitted
to arbitration in accordance with such rules as the parties jointly agree.
If the parties are unable to agree on arbitration procedures, arbitration
shall be conducted in Pinellas County, Florida in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Any
such award shall be final and binding upon both parties.
8.7 Notices. Wherever one party is required or permitted to give notice to the
other pursuant to this Agreement, such notice shall be deemed given when
actually delivered by hand, by telecopier, via overnight courier or when
mailed by registered or certified mail, return receipt requested, postage
prepaid, and addressed as follows:
In the case of Vendor: In the Case of Tech Data:
Piranha Interactive Publishing, Inc. Tech Data Corporation
1839 West Drake ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ V.P. of Marketing Operations
V.P., General Counsel cc: ▇▇▇▇▇ ▇▇▇▇▇▇
Contracts Administration
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective.
8.8 Force Majeure. The term "Force Majeure" shall be defined to include fires
or other casualties or accidents, acts of God, severe weather conditions,
strikes or labor disputes, war or other violence, or any law, order,
proclamation, regulation, ordinance, demand or requirement of any
governmental agency.
(a) A party whose performance is prevented, restricted or interfered
with by reason of a Force Majeure condition shall be excused from
such performance to the extent of such Force Majeure condition so
long as such party provides the other party with prompt written
notice describing the Force Majeure condition and immediately
continues performance whenever and to the extent such causes are
removed.
(b) If, due to a Force Majeure condition, the scheduled time of
delivery or performance is or will be delayed for more than ninety
(90) days after the scheduled date, the party not relying upon the
Force Majeure condition may terminate, without liability to the
other party, any purchase order or portion thereof covering the
delayed Products.
8.9 Return Material Authorization Numbers. For Products eligible for return
under this Agreement, Piranha is required to issue a Return Material
Authorization Number ("RMA") to Tech Data within five (5) business days of
Tech Data's request; however, if the Return Material Authorization is not
received within five (5) business days, Piranha shall accept undisputed
returned Products absent a Return Material Authorization Number. All RMA
numbers shall expire sixty (60) days after date of issue.
8.10 Credits to Tech Data. In the event any provisions of this Agreement or any
other agreement between Tech Data and Piranha require that Piranha grant
credits to Tech Data's account, and such undisputed credits are not
received within thirty (30) days, then all such undisputed credits shall
become effective immediately upon notice to Piranha. In such event, Tech
Data shall be entitled to deduct any such undisputed credits from the next
monies owed to Piranha. In the event that undisputed credits exceed any
balances owed by Tech Data to Piranha, then Piranha shall, upon request
from Tech Data, issue a check payable to Tech Data within thirty (30) days
of such notice. Tech Data shall have the right to set off against any
amounts due to Piranha under this Agreement or any invoices issued by
Piranha related to this Agreement any and all amounts due to Tech Data
from Piranha, whether or not arising under this Agreement.
8.11 Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void, then
both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its
intent.
8.12 Waiver. A waiver by either of the parties of any covenants, provisions or
agreements to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant, condition or agreement herein contained.
8.13 Remedies. All remedies set forth in this Agreement shall be cumulative and
in addition to and not in lieu of any other remedies available to either
party at law, in equity or otherwise, and may be enforced concurrently or
from time to time.
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8.14 Entire Agreement. This Agreement, including any Exhibits and documents
referred to in this Agreement or attached hereto, constitutes the entire
and exclusive statement of Agreement between the parties with respect to
its subject matter and there are no oral or written representations,
understandings or agreements relating to this Agreement which are not
fully expressed herein. The parties agree that the terms and provisions of
this Agreement shall prevail over any contrary or additional terms in any
purchase order (unless agreed to in writing by both parties), sales
acknowledgment, confirmation or any other document issued by either party
effecting the purchase and/or sale of Products.
8.15 Governing Law. This Agreement shall have Florida as its situs and shall be
governed by and construed in accordance with the laws of the State of
Florida, without reference to choice of laws.
8.16 Time of Performance. Time is hereby expressly made of the essence with
respect to each and every term and provision of this Agreement.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
PIRANHA INTERACTIVE TECH DATA CORPORATION
PUBLISHING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________ ___________________________
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President Title: Senior Vice President
Sales and Marketing
Date: 8/22/96 Date: 9/23/96
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SCHEDULE 5.7
CO-OP GUIDELINES
To increase the effectiveness of advertising and sales promotions Tech Data has
developed the following advertising requirements:
HOW CO-OP IS EARNED:
- Co-op dollars will be at least [*]% of the purchases made by Tech Data, net of
returns.
- Co-op dollars will be accrued on a monthly basis.
HOW CO-OP IS SPENT:
- Tech Data will obtain vendor's prior written approval for all co-op
expenditures.
- Tech Data will be reimbursed for 100% of the cost for approved ads or
promotions that feature vendor products.
- Co-op dollars will be used within the 12 months immediately following the
month in which they are earned.
HOW CO-OP IS CLAIMED:
- Claims for co-op will be submitted to vendor within 60 days following the
event date.
- Claims for co-op will be submitted with a copy of vendor prior approval and
proof of performance.
- Payment must be remitted within 30 days of the claim date, or Tech Data
reserves the right to deduct from the next invoice.
CO-OP REPORTING:
- Vendor will submit a monthly co-op statement outlining (i) co-op earned, (ii)
co-op used and (iii) co-op claims paid.
Accepted:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Date: 8/22/96
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[*] Confidential portion deleted and filed separately with the Securities and
Exchange Commission.