DISTRIBUTOR AGREEMENT BETWEEN COMPAQ LATIN AMERICA CORPORATION AND
PINACOR
This Distributor Agreement ("Agreement") is made and entered into this
14th day of September, 1999 ("Effective Date"), by and between Compaq Latin
America Corporation ("Compaq"), a Delaware, U.S.A. corporation, with offices at
▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Pinacor ("Distributor"), a Delaware
corporation, with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇, ▇▇.
ARTICLE I -- DEFINITIONS
Section 1.01. Definitions. The following definitions shall apply to the
terms used in this Agreement unless otherwise indicated:
(a) "Agreement" means this Distribution Agreement as amended or
supplemented from time to time.
(b) "Authorized Reseller" means a reseller who has entered into an
agreement to purchase products from Distributor for the purpose of resale and
who has been registered with Compaq by Distributor. The term "Authorized
Reseller" as used in this Agreement specifically excludes Authorized Compaq
Dealers.
(c) "Compaq Products" means the products described in Exhibit A, as
updated and revised by Compaq from time to time.
(e) "Territory" means the territory listed in Exhibit "B".
ARTICLE 2 -- APPOINTMENT OF DISTRIBUTOR
Section 2.01. Appointment of Distributor. Compaq hereby appoints
Distributor as an Authorized Distributor for Compaq Products in the Territory.
Distributor agrees to purchase Compaq Products from Compaq for the sole purpose
of distributing them in accordance with the terms and conditions of this
Agreement. Distributor shall not ship Compaq Products, either directly or
indirectly, to any location outside of the Territory without the prior written
consent of Compaq.
Section 2.02. Non-exclusive Appointment. Distributor's appointment
hereunder is NONEXCLUSIVE. Compaq reserves the right during the term of this
Agreement and thereafter to solicit, market, or otherwise sell directly or
indirectly Compaq Products or other products in the Territory without obligation
or liability to Distributor.
Section 2.03. Authorized Resellers. (a) Distributor shall sell Compaq
Products only in the Territory and shall register with Compaq the name, address,
and telephone number of each Authorized Reseller.
(b) Compaq may withdraw the registration of an Authorized Reseller upon
thirty (30) days written notice to Distributor at which time Distributor shall
(i) immediately stop reselling Compaq Products to the reseller, (ii) demand the
immediate return of all Compaq Confidential information and Compaq-supplied
sales aids and materials, and (iii) confirm with Compaq its receipt of such
materials from the reseller.
Section 2.04. Automatic Termination. This Agreement shall terminate
automatically without prior notice in the event that:
(a) Distributor represents that its appointment is exclusive either by
registering with a government agency in the Territory or elsewhere or by any
other action that would in any way imply or appear to be a representation of an
exclusive arrangement or that would result in an official governmental or legal
designation of an exclusive arrangement between the Parties, in which case such
registration or representation shall be null and void; or
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(b) This Agreement is deemed by operation of law to be an exclusive
agreement in the Territory or country in which the Distributor is located or is
doing business.
Section 2.05. Independent Contractor. Distributor is an independent
contractor and is not a legal representative or agent of Compaq for any purpose
whatsoever.
ARTICLE 3 - TERM
Section 3.01. Term. (a) The term of this Agreement shall be twelve (12)
months commencing on the Effective Date.
(b) This Agreement will be automatically renewed at the conclusion of
the initial twelve (12) month period for successive twelve (12) month periods
unless one of the Parties indicates by written notice to the other Party not
less than thirty (30) days prior to the end of such twelve (12) month period
that it does not intend to renew. Notwithstanding any of the foregoing, this
Agreement may be terminated by either Party at any time pursuant to Article 15
of this Agreement.
ARTICLE 4 -- DUTIES OF THE PARTIES
Section 4.0 1. Duties of Compaq. Compaq shall perform the following
duties:
(a) Provide Distributor technical assistance and information concerning
Compaq Products
(b) Train three (3) of Distributor's employees to perform sales and
marketing services for Compaq Products;
(c) Provide Distributor with an initial quantity, as determined by
Compaq, of sales aids, data sheets, brochures, instruction sheets and other
materials to assist Distributor in the promotion and sale of Compaq Products and
as part of Compaq's and sales training. Compaq will make available to
Distributor additional copies of such materials and additional sales training at
a reasonable cost.
Section 4.02. Duties of Distributor. Distributor shall perform the
following material duties at all times during the term of this Agreement:
(a) Exert its best efforts to market, advertise, promote, sell, and
support Compaq Products;
(b) Purchase Compaq Products from only Compaq, unless Compaq grants in
writing permission to purchase Compaq Products from an other source;
(c) Exert its best efforts to recruit resellers from its reseller
network consistent with the objectives and requirements of Compaq;
(d) Obey all applicable laws, comply with all applicable rules and
regulations, and conduct business in an ethical manner;
(e) Comply with all applicable Distributor authorization requirements,
which may be amended from time to time by Compaq at its sole discretion;
(f) Refuse to sell or otherwise make available Compaq Products to any
unauthorized third party for the purpose of reselling the product to others,
unless Compaq grants in writing permission to make such sales;
(g) Incorporate into Compaq Products only parts and options
manufactured or sold by Compaq and inform Authorized Resellers that parts and
options not manufactured or sold by Compaq are not warranted by Compaq; and
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(h) Report promptly to Compaq any suspected problems relating to Compaq
Products and keep Compaq informed of any customer complaints.
ARTICLE 5 -- ORDERING COMPAQ PRODUCTS
Section 5.01. Ordering Procedures. Distributor shall order Compaq
Products pursuant to procedures established and amended by Compaq from time to
time at its sole discretion, which procedures are herein incorporated by
reference.
Section 5.02. Orders Subject to Acceptance. All orders shall be subject
to acceptance by Compaq and shall be governed solely by the terms and conditions
of this Agreement. No additional or different provisions contained in
Distributor's purchase orders or other business forms or correspondence shall be
of any force whatsoever.
Section 5.03. Product Availability, Delay, and Partial Shipments.
Distributor acknowledges that product availability may be subject to production,
shipping, or other delays. In such event, Distributor agrees that Compaq may, at
its sole discretion, allocate distribution of Compaq Products among Compaq's
customers, notwithstanding the effect such allocation may have on Distributor's
outstanding orders. Compaq may make the shipments of Compaq Products ordered by
Distributor in one or more installments.
Section 5.04. Product Discontinuance. COMPAQ reserves the unilateral
right, without any prior notice, to cease making available any COMPAQ Product to
Distributor.
Section 5.05. Scheduling Compaq Products. Prior to the commencement of
this Agreement and, thereafter, on or before each anniversary of the Effective
Date, Distributor will submit a written forecast to COMPAQ of the COMPAQ
Products required for each of the next twelve (12) months. COMPAQ reserves the
right to supply all or a portion of Distributor's forecast, consistent with
availability, production schedules, product demand and other factors as
determined by COMPAQ in its sole discretion. COMPAQ shall have no liability or
obligation to Distributor for partial or late delivery or for failure to
deliver.
Section 5.06. Sales Out and Inventory Information. Distributor agrees
to provide COMPAQ with a monthly summary by model number, customer name, and
unit serial number of the COMPAQ Products sold at each Authorized Location as
well as Distributor's current inventory position. This information shall be
submitted to COMPAQ in accordance with the procedures specified from time to
time by COMPAQ, including but not limited to, by providing Compaq with access to
Distributor's facilities and files for the purposes of verifying such
information.
Section 5.07. Licenses. (a) Compaq shall be responsible for obtaining
export licenses and other export approvals for shipping Compaq Products from the
United States to the Territory.
(b) Distributor shall be responsible for obtaining import licenses and
other legally required import approvals to import products into the Territory,
unless Compaq, at its sole discretion, elects to assume such responsibilities
from time to time.
(c) The Parties agree to cooperate to ensure that all necessary
documents and information are expeditiously supplied to the party responsible
for obtaining such licenses and approvals.
(d) The shipment of Compaq Products under any Order shall be dependent
upon the grant of legally required licenses and approvals. Failure or inability
to ship due to the inability to acquire the necessary licenses and approvals
shall not constitute a breach of this Agreement or subject the Parties to
liability as a result thereof.
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ARTICLE 6 -- PRICES AND PAYMENT
Section 6.01. Price. Distributor shall pay Compaq for Compaq Products
at the applicable prices specified in the Compaq Distributor Price List ("Price
List" or "Applicable Price List") in effect on the date an Order is received or
shipped by Compaq, whichever is less.
Section 6.02. Price List. (a) The Price List in force as of the
Effective Date of this Agreement is that contained in Exhibit A.
(b) Compaq shall have the right to amend the Price List at any time.
The Price List will be published and become effective either on the date of
publication or on a later date specified by Compaq and will remain in effect
until a new Price List is published and becomes effective.
(c) The prices contained in the Price List are F.O.B. the shipping
location designated by Compaq and are exclusive of all transportation costs,
export taxes, personal property taxes, value added taxes, customs duties or any
other charges associated with the transportation, exportation, importation, or
sale of Compaq Products. All such costs for each Compaq Product shall be paid by
Distributor pursuant to the then current billing practices of Compaq.
(d) The suggested resale prices for Compaq Products contained in any
price list are suggestions only. Distributor is under no obligation whatsoever
to accept any such suggested prices. Compaq expressly disclaims any intention to
have Distributor adhere to the suggested resale prices.
Section 6.03. Payment and Means of Payment. (a) Payment in full for
each Compaq Product shall be made in US Dollars and is due and payable within
the time period established by Compaq, at Compaq's sole discretion ("Due Date").
(b) Distributor shall, prior to the Effective Date of this Agreement,
arrange credit terms acceptable to Compaq in order to secure payment for Compaq
Products. Distributor shall bear all expenses associated with the origination
and maintenance of any credit arrangement.
Section 6.04. Failure To Make Payments; Interest. If payment is not
received by Compaq by the Due Date, Distributor shall pay an additional
financing charge of the conventional rate plus a spread of 0.5 % for each month
or portion thereof during which payment remains outstanding.
Section 6.05. Right To Stop Shipments. If COMPAQ has given Distributor
notice of termination of this Agreement or if Distributor is delinquent on any
payment for COMPAQ Products, COMPAQ shall have the right to stop all shipments
to Distributor. The order for any such stopped shipment shall be considered to
have been cancelled by Distributor.
Section 6.06. Right to Setoff. Compaq shall have the right to setoff
off or apply any and all amounts owed by Distributor, its subsidiaries and
affiliates, against any and all amounts owed or which may subsequently be owing
by Compaq to Distributor, its affiliates, subsidiaries, or their successor in
interest.
Section 6.07. Litigation To Collect Sums Owed. In the event that it
becomes necessary for Compaq to institute litigation or other proceedings to
collect sums owed by Distributor, Distributor shall be responsible for
reasonable attorneys' fees, fees, and other costs incurred by Compaq in
connection with such action, and agrees to indemnity Compaq against any expenses
or attorneys' fees pertaining thereto.
Section 6.08. Price Protection. When the adoption of a new Applicable
Price List results in the reduction of the price of any COMPAQ Product, COMPAQ
may provide Distributor price protection for such products pursuant to written
policies or procedures established by COMPAQ from time to time at its sole
discretion.
ARTICLE 7 -- CANCELLATION CHARGES
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Section 7.01. Cancellation Charges. Compaq shall have the right to
impose a cancellation charge for any order that is canceled or deferred by
Distributor at a rate, not to exceed five (5) percent of such order, to be
established by Compaq at its sole discretion. Compaq may waive any cancellation
charge. A waiver by Compaq of a cancellation charge in one or more instances
shall not constitute a waiver by Compaq of its right to impose a cancellation
charge in a subsequent instance.
ARTICLE 8 -- TITLE AND RISK OF LOSS OR DAMAGE
Section 8.01. Title. Title and risk of loss or damage to each Compaq
Product shall pass to Distributor upon delivery to Distributor or to
Distributor's designated agent or customs broker, whichever occurs first. Compaq
will use a customs broker of its choice as Distributor's designated agent in the
absence of written instructions to the contrary from the Distributor.
Distributor may amend its delivery instructions upon thirty (30) days written
notice to Compaq.
ARTICLE 9 --SECURITY INTEREST
Section 9.01. Security Interest. Compaq reserves a purchase money
security interest in the Compaq Products shipped to Distributor under this
Agreement, in the proceeds thereof, in the amount of the Compaq Products'
purchase prices, and in the accounts receivable for such Compaq Products.
Distributor expressly grants Compaq the right to file in Distributor's name any
document required to perfect such purchase money security interest. Distributor
agrees to sign any documents required to permit Compaq to perfect any such
purchase money security interest.
ARTICLE 10 - SERVICE AUTHORIZATION / SPARE PARTS
Section 10.0 1. Service and Spare Parts Authorization. The parties
agree that this Agreement does not grant Distributor authorization to perform
service on COMPAQ Products or to purchase or sell spare parts for COMPAQ
Products. The aforementioned authorization, if any, shall be governed by a
separate authorized warranty service provider agreement to be a ▇▇▇▇ to by the
parties.
ARTICLE 11 -- LIMITED WARRANTY
Section 11.01. Limited Warranty, The applicable Compaq limited warranty
statement is included with each Compaq Product shipped to Distributor.
Distributor shall not make any other warranty, whether written or oral, with
respect to Compaq Products.
Section 11.02. Third Party Warranty. Compaq may offer Compaq Products
to distributor for which the warranty may be provided by both Compaq and a third
party. In such instances, Distributor will be notified as to how to respond to a
request for warranty services.
Section 11.03. Warranty Service, Distributor agrees to send defective
products that are discovered by Distributor prior to sale to a COMPAQ authorized
service provider for service,
Section 11.4. Limitations of Warranty. EXCEPT FOR THE WARRANTY SET
FORTH IN THE COMPAQ LIMITED WARRANTY STATEMENT, COMPAQ MAKES NO WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO THE PERFORMANCE OF COMPAQ PRODUCTS. ALL IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ELSEWHERE IN THIS AGREEMENT,
THE LIABILITY OF COMPAQ FOR DAMAGES CAUSED BY DEFECTIVE COMPAQ PRODUCTS IS
LIMITED TO THE TERMS OF THE LIMITED WARRANTY STATEMENT. COMPAQ SHALL HAVE THE
RIGHT TO CHANGE ITS LIMITED WARRANTY AT ANY TIME WITHOUT FURTHER NOTICE OR
OBLIGATION TO DISTRIBUTOR OR ANY OTHER PERSON BY REASON OF SUCH CHANGE.
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ARTICLE 12 -- TRADEMARKS AND RELATED MATTERS
Section 12.0 1. Use of Trademarks and Trade Names. No rights are
granted to Distributor to use trademarks and trade names of Compaq, its parent
or related companies ("Trademarks") or trademarks or trade names of third
parties used in connection with the Compaq Products, except to identify Compaq
Products purchased from Compaq pursuant to this Agreement and to do so only in
the Territory. Distributor shall provide to Compaq, for prior review and written
approval, all promotional, advertising and other materials and activity using or
displaying Trademarks or referring to Distributor as an "Authorized Compaq
Distributor," unless such materials and activity are within the guidelines set
forth by Compaq. Distributor agrees to change or correct, at Distributor's
expense, any such material or activity which Compaq, in its sole judgment,
determines to be inaccurate, objectionable, misleading or a misuse of such
trademarks or trade names.
Section 12.02. Goodwill. Distributor recognizes Compaq's, its parent's
or related companies' ownership of and title to the Trademarks and the goodwill
attaching thereto, and agrees that any goodwill which accrues because of
Distributor's use of the Trademarks shall vest in and become the property of
Compaq. Distributor agrees not to contest or take any action to contest the
Trademarks or to use, employ or attempt to register any trademark which is
confusingly or deceptively similar to the Trademarks.
Section 12.03. Use of Similar Trademarks. Distributor shall promptly
notify Compaq if any person other than an Authorized Compaq Distributor is using
a trademark similar to the Trademarks and, at the expense of Compaq, shall, if
requested, join in any action Compaq may deem advisable to protect its
Trademarks.
ARTICLE 13 - PATENTS AND COPYRIGHTS
Section 13.01. Defense Against Suits. Compaq will defend Distributor
against a claim that Compaq Products infringe any patent or copyright and will
pay resulting costs, damages and attorneys' fees finally awarded by a court,
provided that (i) Distributor promptly notifies Compaq in writing of the claim;
and (ii) Compaq has sole control of the defense and all related settlement
negotiations.
Section 13.02. Replacement or Modification of Products To Make them
Non-Infringing. If the Compaq Products or the operation thereof become, or in
opinion of Compaq are likely to become, the subject of such a claim, Distributor
will permit Compaq, at the sole option and expense of Compaq, either to procure
the right for the Distributor to continue marketing and using the Compaq
Products or to replace or modify them so that they become non-infringing. If
neither of the foregoing alternatives is available on terms which are
reasonable, in the sole judgment of Compaq, Distributor will return the Compaq
Products upon written request by Compaq and Compaq agrees to grant Distributor a
credit equal to the price paid by Distributor to Compaq for the returned Compaq
Products.
Section 13.03. Non-Compaq Products. Compaq, its parent or related
companies, shall have no liability for any claim based upon the combination,
operation or use of any Compaq Product supplied hereunder with equipment, data
or programming not supplied by Compaq, or based upon any alteration or
modification of the Compaq Products.
Section 13.04. Entire Obligation of Compaq. The foregoing states the
entire obligation of Compaq, its parent or related companies, to Distributor
with respect to infringement of patents and copyrights.
ARTICLE 14 -- CONFIDENTIAL INFOR ATION
Section 14.01. Confidential Information. Confidential information shall
mean all information designated "Compaq Confidential" and disclosed to
Distributor which relates to the present or future development and business
activities of Compaq, including, but not limited to, all sales, promotional,
advertising, and support programs. Distributor shall hold such confidential
information in trust and confidence for Compaq and shall not use it except in
furtherance of the relationship set forth in this Agreement, nor publish,
disclose or disseminate it, except as may be authorized by Compaq in writing
Upon expiration or termination of this
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Agreement, Distributor shall promptly deliver to Compaq all written or
descriptive matter containing any such confidential information.
ARTICLE 15 -- TERMINATION
Section 15.01. Right To Terminate for Any Reason. Either Party shall
have the right to terminate this Agreement at any time, for any reason or no
reason whatsoever, at such Party's sole discretion, said termination to be
effective thirty (30) days from the date written notice of termination is
received by the non-terminating Party.
Section 15.02. Immediate Termination. (a) Upon the occurrence of any
of the following enumerated circumstances, termination of this Agreement by
Compaq shall be effective immediately upon receipt by Distributor of written
notice of termination:
(i) A receiver, liquidator, trustee or similar administrator is
appointed to take charge of all or substantially all of Distributor's assets;
(ii) Distributor is adjudged or becomes bankrupt or insolvent, is
unable to pay its debts as they become due, or makes an assignment for the
benefit of its creditors;
(iii) Any judicial proceedings are commenced by or on behalf of
Distributor pursuant to any bankruptcy, insolvency or debtor relief law;
(iv) Distributor voluntarily or involuntarily undertakes to dissolve or
wind up its affairs;
(v) Distributor defaults in any payment due to Compaq and such default
continues for a period of thirty (30) days after the Due Date;
(vi) Distributor makes any false or misleading representations in
connection with the business relationship of the parties or engages in fraud,
criminal or negligent conduct in connection with the business relationship of
the parties;
(vii) Any competitor of Compact purchases or otherwise acquires an
interest of any sort or size in Distributor; or
(viii) Distributor breaches any other material term of this Agreement.
(b) If for any reason such circumstances are found not to exist,
termination shall nevertheless be effective thirty (30) days from the date of
receipt by Distributor of Compaq's written notice of termination pursuant to
Section 15.0 1.
Section 15.03. Change in Status. In the event of any merger,
consolidation, change in key management, or reorganization of Distributor, or
any change of control, directly or indirectly, of Distributor, or transfer of
any substantial part of Distributor's business, whether by transfer of stock,
sale of assets, merger, consolidation or otherwise, Distributor shall notify
Compaq in writing not more than ten (10) days after such change in status, and
Compaq shall have the right, in its sole discretion, to terminate this Agreement
effective immediately upon written notice to Distributor in the event of such
change in status.
Section 15.04. Consequences of Termination. UNDERSTANDING FULLY THE
RISK THAT THIS AGREEMENT MAY BE TERMINATED AT ANY TIME FOR ANY REASON OR FOR NO
REASON WHATSOEVER, the Parties agree that in the event of termination that
terminating Party shall not under any circumstances be liable by reason of such
termination for damages or otherwise, whether for the loss of present or
prospective commissions or lost profits, or for expenditures, investments,
opportunities foregone, or for the inability to fulfill customers' contracts, or
otherwise.
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Section 15.05. Repurchase of Inventory. (a) If Compaq terminates this
Agreement, Compaq may, at its sole option, repurchase some or all of the Compaq
Products in Distributor's inventory at prices to be agreed upon by Compaq and
Distributor, but in no event greater than the price invoiced to and actually
paid by the Distributor less any credits received by Distributor with respect to
such products. In the event the factory box seal of a Compaq Product has been
broken, the price to be paid by Compaq shall not exceed 50% of the price
invoiced to and actually paid by Distributor.
(b) If Distributor terminates this Agreement, Compaq may, at its sole
discretion, accept return of some or all of the Compaq Products in Distributor's
inventory. If Compaq chooses to accept such returns, Distributor will be
reimbursed the price invoiced to and actually paid by the Distributor less (i)
any credits received by Distributor with respect to such products, (ii) a
fifteen (15) percent handling charge, and (iii) any return shipment charges paid
by Compaq.
Section 15.06. Acceleration of Due Date. Termination of this Agreement
shall automatically accelerate the Due Date such that all outstanding invoices
shall be due and payable as of the effective date of termination.
Section 15.07. Rejection of Orders. (a) Upon notice of termination of
this Agreement, Compaq may reject all or part of any orders received from
Distributor after the date of notice of termination. Compaq may also, in its
sole discretion, refuse to fill any orders received prior to notice of
termination. Any Compaq Products to be shipped to Distributor prior to the
effective date of termination shall be paid for by Distributor by certified or
cashier's check prior to the shipping date.
Section 15.08. Promotional Allowances. Upon the date of notice of termination:
(a) All promotional allowances available to Distributor for use which
are not already subject to valid and existing claims submitted by Distributor
and received by Compaq shall no longer be available for use by Distributor;
(b) Distributor shall no longer be entitled to accrue additional
promotional allowances; and
(c) Distributor's rights under any inventory-return or price protection
policy that may have been established by Compaq shall terminate.
Section 15.09. Actions bv Distributor Upon Termination. Upon the
effective date of termination of this Agreement:
(a) Distributor shall promptly return all advertising, promotional,
technical, sales, or other materials supplied by Compaq;
(b) Distributor shall cease holding itself out as an authorized seller
of Compaq Products,
(c) Distributor shall notify and arrange for all publishers and others
who may identify, list, or publish Distributor's name as a Distributor of Compaq
Products to discontinue such listings as soon as practicable; and
(d) Distributor shall no longer sell Compaq Products to its customers
without the prior written consent of Compaq.
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ARTICLE 16 -- INDEMNIFICATION
Section 16.01. Indemnification. Distributor agrees to indemnity against
and hold Compaq harmless from any and all claims by any other party resulting,
directly or indirectly, from Distributor's acts, omissions, misrepresentations,
or negligence, regardless of the form of action.
ARTICLE 17 -- LIMITATION OF REMEDIES/LIABILITY
Section 1.7.01. Limitation of Remedies. (a) In all situations
involving the performance or nonperformance of Compaq Products, Distributor's
remedy is set forth in Article I I of this Agreement.
(b) In the event of the failure, or threatened failure, of a Party to
fulfill any of its obligations hereunder, the other Party shall be entitled to
seek injunctive relief, to request that such obligation be fulfilled and, if
that does not occur promptly thereafter, to terminate this Agreement, and where
appropriate, bring an action for any monies due hereunder. Without limitation,
Compaq shall have the right to seek enforcement of its rights regarding patents,
copyrights, trademarks or trade names and enforcement of Distributor's
obligation to cease representing itself as an Authorized Compaq Distributor.
(c) Neither Party shall have any liability for indirect, special or
consequential damages in connection with this Agreement, even if advised of the
possibility of such damages, or for any claim by any third party except as
expressly stated in this Agreement. The foregoing limitation of liability will
not apply to claims concerning enforcement of Compaq's rights regarding
copyrights, trademarks or trade names and enforcement of Distributor's
obligation to cease representing itself as an Authorized Compaq Distributor.
ARTICLE 18 -- GENERAL PROVISIONS
Section 18.01. Non-Assignability. Distributor shall not assign any
right or interest herein nor delegate any duty or obligation without the prior
written consent of Compaq. Any attempt to assign any of the rights, duties, or
obligations of this Agreement without such consent is null and void.
Section 18.02. Entire Agreement. The entire understanding between the
Parties is incorporated herein and supersedes all prior discussions and
agreements between the Parties relating to the subject matter hereto. This
Agreement can be modified only by a written amendment executed by Distributor
and Compaq, and shall not be supplemented or modified by any course of dealing
or trade usage. Variance from or addition to the terms and conditions of this
Agreement in any order, or other written notification from Distributor will be
of no effect.
Section 18.03. Titles and Captions. All article and section titles or
captions in this Agreement are for convenience only. They shall not be deemed
part of this Agreement and in no way define, limit, extend, or describe the
scope or intent of any of its provisions.
Section 18.04. Survival of Obligations and Duties. Any obligations and
duties which by their nature extend beyond the expiration or termination of this
Agreement shall survive any expiration or termination and remain in effect.
Section 18.05. Invalidity of Provisions. If any provision or provisions
of this Agreement shall be held to be invalid, illegal or unenforceable, such
provision shall be enforced to the fullest extent permitted by applicable law
and the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 18.06. Contingencies Beyond a Party's Control. Neither Party
shall be liable for failure to fulfill its obligations under this Agreement if
such failure is caused by the occurrence of any contingency beyond its
reasonable control.
Section 18.07. Expiration of Claims. No action, except those regarding
claims by third parties, or claims with respect to patents, copyrights,
trademarks or trade names and enforcement of Distributor's obligation
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to cease representing itself as an Authorized Compaq Distributor, regardless of
form, arising out of this Agreement may be brought by either party more than two
(2) years after the cause of action has arisen, or, in the case of non-payment,
more than two (2) years from the date the last payment was due.
Section 18.08. Addresses and Notices. Notices required or permitted
hereunder shall be in writing and deemed given and received when properly posted
by registered or certified mail, postage prepaid, first class, in an envelope
properly addressed (i) if to Compaq, to ▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: Vice President and General Manger, Compaq Latin America; or (ii) if
to Distributor, to the address set forth in the introduction of this Agreement,
or to such other address as Distributor or Compaq specifies in writing to the
other party.
Section 18.09. Waiver. Any waiver of any kind by Compaq of a breach of
this Agreement (i) must be in writing, (ii) Shall be effective only to the
extent set forth in such writing, and (iii) Shall not operate or be construed as
a waiver of any subsequent breach by Distributor. Any Compaq delay or omission
in exercising any right, power, or remedy pursuant to a breach or default by
Distributor shall not impair any right, power or remedy which Compaq may have.
Section 18. 10. Governing Law. This Agreement is governed by the laws
of Texas.
Section 18.11. Re-export of U.S. Goods. Compaq Products purchased or
received under this Agreement as well as all information disclosed by Compaq are
subject to United States export regulations. Distributor may not reexport such
goods or information without first obtaining written permission from Compaq
which shall be conditioned on Distributor first obtaining the required United
States export license.
Section 18.12. Re-export of U.S. Technical Data. Distributor hereby
gives assurances to Compaq that it shall not export, re-export or otherwise
disclose, directly or indirectly, either technical data received from Compaq or
the direct product of such technical data to any person or destination when such
export, reexport or disclosure is prohibited by the laws of the United states or
regulations of a Department of the United States.
Section 18.13. Familiarity with Foreign Corrupt Practices Act. (a)
Distributor is familiar with the Foreign Corrupt Practices Act ("FCPA") and its
purposes and is aware that the FCPA prohibits the payment or giving of anything
of value, either directly or indirectly, by a U.S. company to an official of a
foreign government for the purpose of influencing an act or decision in his
official capacity, or inducing him to use his influence with the foreign
government, to assist the U.S. company in obtaining or retaining business for or
with, or directing business to, any person. Distributor represents that it will
not take any action which would constitute a violation of the FCPA.
(b) If Compaq learns or has reason to believe that Distributor has
violated the FCPA or any other applicable United States law or regulation in
connection with this Agreement, it shall have the right to terminate the
Agreement immediately notwithstanding any provision in this Agreement to the
contrary. Distributor agrees to indemnify and hold harmless Compaq for any
action taken by Distributor in connection with this Agreement that violates the
FCPA or any other applicable United States law or regulation.
Section 18.14. Attorneys' Fees. In any action or proceeding between the
Parties hereto, or brought to enforce the terms of this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover it
attorneys' fees and costs.
Section 18.15. Language of this Agreement. The Parties have requested
that this Agreement and the documents relating hereto be drawn up in the English
language.
Section 18.16. Counterparts. This Agreement may be executed in
counterparts, all of which taken together shall constitute one agreement binding
on all the Parties notwithstanding that both Parties may not be signatories to
the original or same counterpart.
Section 18.17. Confidentiality of Agreement. This Agreement is Compaq
Confidential.
10
Section 18.18. Authority To Sign. The individuals signing this
Agreement hereby represent and warrant that they are empowered and authorized to
sign on behalf of and bind the Party for whom they have signed.
ARTICLE 19 -- COMPAQ POLICY
Section 19.0 1. Compaq Policy. Compaq does not entertain complaints
from its Distributors about any other Distributor's pricing practices. In
executing this Agreement, Distributor recognizes this policy and will cooperate
in complying with this policy.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT AND AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS
PINACOR
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Vice President Pinacor Purchasing
COMPAQ LATIN AMERICA CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and General Manager
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EXHIBIT "B"
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CPU's OPTIONS
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Argentina All Latin America
Bolivia
Brazil
Caribbean
Central America
Chile
Colombia
Ecuador
Mexico
Paraguay
Peru
Puerto Rico
Uruguay
Venezuela