EXHIBIT 10(K)
TOSHIBA AMERICA INFORMATION SYSTEMS, INC
TELECOMMUNICATIONS MASTER DEALER AGREEMENT
An AGREEMENT made as of April 1, 1998 by and between the Telecommunication
Systems Division of Toshiba America Information Systems, Inc., (hereinafter
("TAIS"), a California Corporation, and
COMMUNICATIONS WORLD INTERNATIONAL, INC.
(Hereinafter "MASTER DEALER").
WITNESSETH:
WHEREAS, TAIS is desirous of obtaining competent, ethical, aggressive marketing
coverage in certain geographic areas that may or may not otherwise be serviced
by TAIS' own marketing network; and,
WHEREAS, MASTER DEALER has represented that it is able and willing to provide
such marketing coverage in the geographic areas specified herein through a
network of third-party marketers that MASTER DEALER has established and/or will
be establishing and without reliance on TAIS' existing dealers.
TAIS and MASTER DEALER, in consideration of the mutual promises made below,
hereby agree as follows:
1. GENERAL. This Agreement governs all transactions hereafter entered into
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between TAIS and MASTER DEALER concerning TOSHIBA-brand telecommunications
equipment and accessories marketed by TAIS's Telecommunication Systems
Division.
2. APPOINTMENT. Subject to the terms set forth herein, TAIS hereby appoints
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the MASTER DEALER, and the MASTER DEALER accepts the appointment by TAIS,
to be a non-exclusive, independent dealer of such Products (hereinafter
referred to as AUTHORIZED PRODUCTS) as are set forth on the attached
Schedule "A" (hereinafter referred to as "AUTHORIZED PRODUCTS" list).
MASTER DEALER shall be authorized to purchase for resale additional
products, provided that TAIS shall first sign an appropriately revised
Schedule "A" to this Agreement.
3. PRODUCT DEVELOPMENT. TAIS reserves the right, in its sole and absolute
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discretion, to make modifications, improvements or changes to AUTHORIZED
PRODUCTS or to discontinue the sale or distribution of any AUTHORIZED
PRODUCTS unilaterally, at any time, and without incurring any liability
whatsoever to MASTER DEALER or others.
4. DEALER NETWORK.
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(a) MASTER DEALER shall establish and maintain a network of dealers (or
similar third party marketers, collectively, "DEALERS") in the
Territory as detailed on Schedule B hereto, through which MASTER
DEALER shall market AUTHORIZED PRODUCTS to End-Users. MASTER DEALER
shall Utilize this Dealer network as its primary
distribution channel for AUTHORIZED PRODUCTS. MASTER DEALER shall not
market any AUTHORIZED PRODUCTS to any person (other than End-User)
which has not been qualified by MASTER DEALER as a Dealer in
accordance with the terms of this Agreement, except as specifically
authorized by this Agreement. MASTER DEALER shall not solicit,
communicate with, or appoint as a Dealer any person who is then an
authorized dealer of TOSHIBA telecommunication AUTHOIRZED PRODUCTS
without the prior written consent of TAIS's Vice President-Sales,
Telecommunication Systems Division.
(b) MASTER DEALER shall ensure that, with respect to each of its DEALERS,
TAIS is kept currently advised in writing of: its identity; its legal
status (corporation, partnership, etc.); the locations of its
administrative office(s), and service location(s); the Authorized
Products in which the Dealer is authorized to deal; and the
territorial limits (if any), without the Territory of the DEALER.
(c) MASTER DEALER shall ensure that, in each instance unless and until
thirty (30) days prior notice thereof has been given in writing by
MASTER DEALER to TAIS' Vice President-Sales, Telecommunication Systems
Division, and TAIS has not objected thereto, (i) no DEALER will be
appointed by MASTER DEALER, (ii) neither MASTER DEALER nor any DEALER
shall open any additional sales or service location, (iii) no DEALER
shall be authorized to sell any AUTHORIZED PRODUCTS in any geographic
area as to which TAIS has not given such prior written notice by
MASTER DEALER or as to which TAIS objected, (iv) no DEALER shall
market any particular AUTHORIZED PRODUCTS (nor shall any office of
MASTER DEALER market any particular AUTHORIZED PRODUCTS to any End-
User). MASTER DEALER shall also qualify its DEALERS by such standards
of operation and pre-and post-sale support as TAIS in its sole
discretion determines from time to time are appropriate.
(d) MASTER DEALER shall take all necessary actions and make all necessary
arrangements with DEALERS such that DEALER's dealership may be
terminated on any grounds by which this Agreement may be terminated by
TAIS. Upon written instruction from TAIS, MASTER DEALER shall at its
risk and expense terminate any DEALER who has committed one or more
acts (or omitted to do one or more acts) which if done (or omitted) by
MASTER DEALER throughout the Territory would be a grounds for
termination of this Agreement by TAIS.
(e) MASTER DEALER shall ensure that all of its contractual arrangements
with DEALERS expressly provide that each Dealer is not in privity with
TAIS and that all contractual commitments made to DEALER are made by
MASTER DEALER and not TAIS. MASTER DEALER shall ensure that all
DEALERS comply with the requirements of this Agreement.
(f) TAIS shall have the right to communicate directly with any of the
DEALERS in respect of the marketing, service and maintenance of
AUTHORIZED PRODUCTS.
(g) MASTER DEALER shall advise TAIS, in writing, of the names of its
DEALERS (hereinafter referred to as "DESIGNATED DEALERS") who are
authorized to purchase AUTHORIZED PRODUCTS and enter into credit
transactions directly with TAIS.
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5. TERRITORY. MASTER DEALER and its DEALERS shall promote, sell, market and
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service AUTHORIZED PRODUCTS only in the geographic area (the "TERRITORY")
described on Schedule(s) "B" hereto, unless otherwise specifically
authorized by TAIS in accordance with section 20 of this Agreement below or
as approved in advance in writing by TAIS' Vice President-Sales,
Telecommunication systems Division, in a particular instance and shall do
so on a non-exclusive basis. TAIS reserves the right to make direct sales
and to designate others to sell any AUTHORIZED PRODUCTS in the Territory.
A violation of this Section will be deemed a material breach of this
Agreement.
6. TAIS DUTIES. In addition to and subject to other provisions of the
Agreement, TAIS shall:
(a) Provide AUTHORIZED PRODUCTS to MASTER DEALER or its DESIGNATED DEALERS
in response to orders by MASTER DEALER or its DESIGNATED DEALERS
accepted by TAIS, subject to the terms and conditions of this
AGREEMENT;
(b) Provide MASTER DEALER with such marketing literature, technical
literature, technical advice and assistance and warrant literature as
▇▇▇▇ ▇▇▇▇▇ appropriate for AUTHORIZED PRODUCTS;
(c) Conduct service training and sales and marketing training schools and
programs as TAIS may establish from time to time;
(d) Provide MASTER DEALER with customer leads, in such number and manner
as TAIS in its sole discretion deems appropriate for the marketing of
AUTHORIZED PRODUCTS.
(e) Establish or provide for such repair facilities or methods as ▇▇▇▇
▇▇▇▇▇ appropriate for warranty and out-of-warranty maintenance of
AUTHORIZED PRODUCTS;
(f) Engage in advertising programs, which may include national, local or
cooperative advertising, of such type and nature as ▇▇▇▇ ▇▇▇▇▇
appropriate for the successful marketing of AUTHORIZED PRODUCTS.
(g) Subject to the terms of this Agreement, charges, if any, for the
foregoing, shall be as TAIS establishes from time to time.
7. MASTER DEALER'S DUTIES. Pre-sale and post-sale support of the AUTHORIZED
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PRODUCTS by MASTER DEALER are critical to the reputation and success of the
AUTHORIZED PRODUCTS in the marketplace. MASTER DEALER acknowledges that its
ability and commitment to provide such support and to aggressively market
AUTHORIZED PRODUCTS are extremely important elements in TAIS's decision to enter
into this Agreement. Accordingly, in addition to the other provisions of this
Agreement, MASTER DEALER hereby further specifically agrees as follows.
(a) Best Efforts. MASTER DEALER shall exercise its best effort to achieve
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(in a manner consistent with other terms of this Agreement) maximum
market penetration for the AUTHORIZED PRODUCTS in the Territory.
MASTER DEALER and its DEALERS shall maintain inventories of AUTHORIZED
PRODUCTS sufficient to meet market demand in a timely manner.
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(b) Demonstration Models. MASTER DEALER shall maintain at each of its
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sales offices in the territory where equipment is displayed, properly
functioning demonstration units of such of the most current models of
AUTHORIZED PRODUCTS and/or have a TAIS Demo Kit available, as ▇▇▇▇
▇▇▇▇▇ appropriate, which demonstration units shall be prominently
displayed in a manner at least as favorable as that applicable to
competitive products also on display. MASTER DEALER shall ensure that
each of its DEALERS appropriately display a sufficient selection of
AUTHORIZED PRODUCTS.
(c) Sales Organization. MASTER DEALER shall train and maintain at each of
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its offices in the Territory a sales force of individuals
knowledgeable with respect to the functional capabilities and
operation of the AUTHORIZED PRODUCTS. In addition, MASTER DEALER shall
provide such training and support to its DEALER network as may be
necessary to ensure that a skilled sales force is established and
maintained at each DEALER.
(d) Installation and End-User Training. MASTER DEALER shall ensure that
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each End-User which acquires any of the AUTHORIZED PRODUCTS from
MASTER DEALER or a DEALER is provided proper installation support and
operational training.
(e) Reports. MASTER DEALER shall monitor its activities and the
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activities of its DEALERS with respect to the AUTHOIRZED PRODUCTS and
shall provide TAIS with such reports as TAIS may request from time to
time with respect to past sales, inventory, future sales, service,
DEALER finances and such other matters relating to MASTER DEALER
and/or its DEALERS as TAIS may request.
(f) Limitation on Extra Territorial and Unsupported Sales. MASTER DEALER
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shall not ship, sell, market or support (and shall ensure that its
DEALERS do not sell, market or support) any of the AUTHORIZED PRODUCTS
outside the Territory (nor shall any DEALER ship any AUTHORIZED
PRODUCTS outside of such DEALER's territory, designed for it in the
manner provided by this Agreement) unless otherwise specifically
authorized by TAIS in accordance with section 5 of this Agreement
(except that, with the prior written consent of TAIS' Sales Director,
MASTER DEALER or a DEALER may ship AUTHORIZED PRODUCTS to another
authorized TAIS dealer).
(g) Other. MASTER DEALER shall resolve all complaints of customers of
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MASTER DEALER and its DEALERS; comply with all TAIS sales,
advertising, operations, credit, marketing, service and other
policies; properly store and handle AUTHORIZED PRODUCTS and take all
other steps necessary to aggressively market AUTHORIZED PRODUCTS.
(h) Compliance with Laws: MASTER DEALER shall comply with all applicable
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Federal, State, and local laws, regulations and licensing
requirements, including, but not limited to, the United States Export
Administration Act of 1979, as amended from time to time.
(i) Business Ethics: TAIS conducts its business in accordance with the
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highest professional and ethical standards. TAIS policy prohibits the
solicitation or acceptance of any bribe, kickback, or gratuity by any
TAIS employee in the transaction of its business. The payment of any
bribe, kickback, or gratuity is not a condition for doing business
with TAIS. Dealer (or Distributor, whichever is appropriate) shall
report any violation of this
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policy to the Division vice President, General Manager and to the
President, Toshiba America Information Systems, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
8. PURCHASE OBJECTIVES. Consistent with MASTER DEALER's obligations hereunder
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to aggressively promote AUTHORIZED PRODUCTS and penetrate the market for
AUTHORIZED PRODUCTS in the TERRITORY, MASTER DEALER acknowledges that TAIS
may establish for MASTER DEALER, from time to time, minimum purchase
objectives for AUTHORIZED PRODUCTS. Such objectives may be established by
TAIS in its discretion taking into consideration such factors as the size
of, population in, and the potential of the TERRITORY; competition in the
marketplace; the prior performance of MASTER DEALER or other dealers in the
TERRITORY or other geographic areas; projections of sales made by MASTER
DEALER or TAIS' staff; and such other financial and market factors TAIS may
deem pertinent. TAIS may consult with MASTER DEALER concerning such
objectives but TAIS will have the final authority to establish them.
MASTER DEALER's purchase objectives are set forth on Schedule "C" hereto,
for the period(s) reflected thereon. Revised purchase objectives for
future periods or for territorial revisions will be set forth in new
Schedules "B" or "C", sent to MASTER DEALER and signed by TAIS's Vice
President-Sales, Telecommunication Systems Division. In addition to
purchase objectives, TAIS and MASTER DEALER may also agree in writing on
minimum purchase commitments on a yearly, quarterly or other basis.
9. PURCHASES. MASTER DEALER and its DESIGNATED DEALERS may order and purchase
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AUTHORIZED PRODUCTS from TAIS. The orders and purchases shall be in
accordance with the terms and conditions of this Agreement and in
accordance with such other terms, conditions and procedures that may be set
forth by TAIS from time to time. Such other terms, conditions and
procedures may be set forth by TAIS in written communication, such as
dealer manuals, bulletins, letters, or the like. Without limiting the
generality of the foregoing, the following terms will be deemed
incorporated in all orders by MASTER DEALER and its DEALERS and TAIS'
acceptance of such orders is expressly made conditioned on the following:
(a) All list prices are subject to change by TAIS without notice, except
that TAIS shall use its best efforts to give thirty (30) days prior
notice to MASTER DEALER of price increases.
(b) All prices, unless otherwise specified, shall not include any
applicable Federal, state or local sales, excise, use or similar
taxes, all of which shall be the responsibility of MASTER DEALER.
(c) All prices are F.O.B. point of shipment. TAIS shall be deemed to have
delivered all AUTHORIZED PRODUCTS and related goods at point of
shipment. All risk of loss or damage shall pass to MASTER DEALER or
it's DESIGNATED DEALERS at the point of shipment. MASTER DEALER or
its DESIGNATED DEALERS shall bear all costs of freight, freight
insurance and associated costs. Within thirty (30) days after receipt
of any AUTHOIRZED PRODUCTS, MASTER DEALER or it's DESIGNATED DEALERS
shall notify TAIS, in writing, of any shortage, damage or defects in
such AUTHORIZED PRODUCTS and failure to do so shall constitute a
waiver of all claims against TAIS arising out of such shortage, damage
or defects.
(d) The "Fiscal Year Quota For Period" listed on Schedule "C" will be used
to determine MASTER DEALER's sales discount from the TAIS DEALER price
list for
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AUTHORIZED PRODUCTS in accordance with TAIS' standard sales discount
policy as set forth in Schedule "D" hereto, but TAIS may, at its sole
and absolute discretion, adjust a MASTER DEALER's initial sales
discount based on the MASTER DEALER's past sales performance.
(e) TAIS will invoice the MASTER DEALER and its DESIGNATED DEALERS and the
MASTER DEALER and its DESIGNATED DEALERS shall pay TAIS, in accordance
with such payment and credit terms as are established by TAIS from
time to time in TAIS' sole discretion. TAIS reserves the right to
revoke at any time any credit extended to the MASTER DEALER or its
DESIGNATED DEALERS because of the failure to pay for any goods when
due or for any other reason deemed good and sufficient by TAIS.
(f) If MASTER DEALER or its DESIGNATED DEALERS fail to pay TAIS in
accordance with the payment and credit terms established by TAIS, then
such failure shall constitute a material default of this Agreement and
TAIS may refuse to make any further deliveries of AUTHORIZED PRODUCTS,
may at its option accelerate and deem immediately due all sums MASTER
DEALER or its DESIGNATED DEALERS owe to TAIS and may assert any other
legal right against MASTER DEALER or its DESIGNATED DEALERS permitted
by law or set forth in the payment or credit terms established by
TAIS, including but not limited to the payment of interest to TAIS on
past invoices. MASTER DEALER and its DESIGNATED DEALERS shall
indemnify and hold harmless TAIS against all interest and costs of
collection, including, but not limited to, expenses and attorney fees.
(g) Delivery dates given by TAIS for orders for AUTHORIZED PRODUCTS placed
by MASTER DEALER or its DESIGNATED DEALERS shall be considered TAIS
estimates only and TAIS shall not be deemed to have accepted any order
until the AUTHORIZED PRODUCTS are shipped by TAIS to the specified
ship-to location. TAIS reserves the right to apportion AUTHORIZED
PRODUCTS among its customers in its sole discretion. In the event
TAIS fails to deliver AUTHORIZED PRODUCTS in accordance with the
agreed upon delivery dates, MASTER DEALER or its DESIGNATED DEALERS
may cancel the Purchase Order upon written notice to TAIS, provided
that TAIS shall have five (5) business days from receipt of such
notice to commence the delivery.
(h) "MASTER DEALER and its DESIGNATED DEALERS are encouraged to order
AUTHORIZED PRODUCTS using TAIS' FYI Order Entry System. MASTER DEALER
acknowledges that the FYI system contains proprietary information,
such as pricing, sales, technical and other data to TAIS and MASTER
DEALER. MASTER DEALER will not divulge and will ensure that its
DESIGNATED DEALERS will not divulge such data to third parties without
written consent of TAIS' Vice President, Operations. It is the MASTER
Dealer's responsibility to notify TAIS of any personnel changes which
may involve FYI Access Rights. MASTER DEALER will hold harmless TAIS
for any breach thereof."
(i) All requests for credit due to pricing or discount disputes must be
received by TAIS' Customer Service Departments within sixty (60) days
of the invoice date, otherwise MASTER DEALER and its DESIGNATED
DEALERS waive the right to receive any such credit.
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10. SERVICE RESPONSIBILITY. MASTER DEALER acknowledges that the AUTHORIZED
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PRODUCTS require installation, warranty, and after-sale servicing and
maintenance by a skilled, TAIS-trained certified technician. MASTER DEALER
shall, and shall ensure that its DEALERS, provide professional, prompt, and
expert installation and service support for all AUTHORIZED PRODUCTS sold in
the TERRITORY. Without limiting the generality of the foregoing, MASTER
DEALER and its DEALERS shall:
(a) Strictly adhere to all installation, service and parts inventory
policies and guidelines established by TAIS from time to time for its
dealers.
(b) Maintain proper installation and servicing tools and facilities.
(c) Employ a sufficient number of TAIS-trained and certified technicians
per each office of record and for each TAIS AUTHORIZED PRODUCT line
sold so as to ensure that each installation and service call for an
AUTHORIZED PRODUCT is personally handled only by a technician who has
been properly trained for such AUTHORIZED PRODUCT and send its
appropriate service technicians and other personnel as TAIS may
require, to service schools or seminars conducted by MASTER DEALER
and/or TAIS.
(d) Maintain appropriate service history records for the AUTHORIZED
PRODUCTS as are necessary and appropriate for the business of MASTER
DEALER and its DEALERS and as may be required in accordance with
standards established by TAIS from time to time.
(e) Use its best efforts to make available and provide competent
maintenance and service support, in a commercially reasonable manner,
to all end users of AUTHORIZED PRODUCTS (and other AUTHORIZED PRODUCTS
as TAIS may request in writing) in the TERRITORY, irrespective of
whether the AUTHORIZED PRODUCTS were sold to the end user by MASTER
DEALER, one of its DEALERS or other TAIS Dealers.
(f) MASTER DEALER shall also (i) provide such training and support to its
DEALER network as may be necessary to train DEALER personnel to
perform warranty and maintenance service on the AUTHORIZED PRODUCTS;
(ii) promptly pass on to its DEALERS all technical information
provided by TAIS with respect to any of the AUTHORIZED PRODUCTS (iii)
actively encourage DEALERS to participate in service programs which
may be established by TAIS from time to time and send MASTER DEALER
service personnel to such programs as requested by TAIS.
11. INDEMNIFICATION. MASTER DEALER shall indemnify and hold harmless TAIS,
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including the payment of TAIS' attorney fees and costs, in the event that
MASTER DEALER or its Dealers make(s) any warranty or representation which
is inconsistent with, different, or in addition to the TAIS warranty
contained in this Agreement, or other warranty which is specifically
authorized by TAIS in writing.
(a) All new AUTHORIZED PRODUCTS purchased by MASTER DEALER are presently
subject to a twelve (12) month warranty (24 months for Model 6500 and
Digital telephone sets and STRATAGY systems commencing with a Lot Code
of F1) given by TAIS (all used or refurbished products are sold "as
is"). The new AUTHORIZED PRODUCT warranty, WHICH RUNS TO THE END
USER, is as follows:
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TOSHIBA AMERICA INFORMATION SYSTEMS, INC.
END-USER LIMITED WARRANTY
Toshiba America Information Systems, Inc. ("TAIS") warrants that this
telephone equipment (except for fuses, lamps and other consumables) will,
upon delivery by TAIS or an authorized TAIS dealer to a retail customer in
new condition, be free from defects in material and workmanship for twelve
(12) months after delivery, (24 months for Model 6500 and digital telephone
sets and STRATAGY systems commencing with a Lot Code of "F1". This
warranty is void" (a) if the equipment is used under other than normal use
and maintenance conditions, (b) if the equipment is modified or altered,
unless the modification or alteration is expressly authorized by TAIS, (c)
if the equipment is subject to abuse, neglect, lightning, electrical fault,
or accident, (d) if the equipment is defaced or missing, or (f) if the
equipment is installed or used in combination or in assembly with products
not supplied by TAIS and which are not compatible or of inferior quality,
design or performance.
The sole obligation of TAIS or Toshiba Corporation under this warranty, or
under any other legal obligation with respect to the equipment, is the
repair or replacement of such defective or missing parts as are causing the
malfunction by TAIS or its authorized dealer, with new or refurbished parts
(at their option). If TAIS or one of its authorized dealers does not
replace or repair such parts, the retail customer's sole remedy will be
refund of the price charged by TAIS to its dealers for such parts as are
proven to be defective, and which are returned to TAIS through one of its
authorized dealers within the warranty period and no later than thirty (30)
days after such malfunction, whichever first occurs.
Under no circumstances will the retail customer or any user or dealer or
other person be entitled to any direct, special, indirect, consequential or
exemplary damages, for breach of contract, tort, or otherwise. Under no
circumstances will any such person be entitled to any sum greater that the
purchase price paid for the item of equipment that is malfunctioning.
To obtain service under this warranty, the retail customer must bring the
malfunction of the machine to the attention of one of TAIS' authorized
dealers within the twelve (12) month period (24 months for model 6500 and
Digital telephone sets and STRATAGY systems commencing with a Lot Code of
"F1") and no later that thirty (30) days after such malfunction, whichever
first occurs. Failure to bring the malfunction to the attention of an
authorized TAIS dealer, within the prescribed time, results in the customer
being not entitled to warranty service.
THERE ARE NO OTHER WARRANTIES FROM EITHER TOSHIBA AMERICA INFORMATION
SYSTEMS, INC. OR TOSHIBA CORPORATION WHICH EXTEND BEYOND THE FACE OF THIS
WARRANTY. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
FITNESS FOR USE, ARE EXCLUDED.
No TAIS dealer and no person other than an officer of TAIS may extend or
modify this warranty. No such modification or extension is effective,
unless it is in writing and signed by the Vice President, General Manager,
Telecommunication Systems Division.
(b) TAIS warrants to MASTER DEALER and its DEALER that each new AUTHORIZED
PRODUCT will be free from defects in material and workmanship for a period
of twelve (12) months (24 months for of Model 6500 and Digital telephone
sets and STRATAGY systems
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commencing with a Lot Code of "F1") after the delivery of the AUTHORIZED
PRODUCT to MASTER DEALER or one of its DEALERS by TAIS or until sale by
MASTER DEALER or one or its DEALERS to an end user, whichever occurs first.
MASTER DEALER and its DEALER'S WARRANTY IS SUBJECT TO THE SAME LIMITATIONS
AND EXCLUSIONS (INCLUDING THOSE EXCLUDING MERCHANTABILITY) AS THE END
USER'S LIMITED WARRANTY (SEE SECTION 11(a) ABOVE).
(c) Neither MASTER DEALER nor any of its DEALERS, nor any other person may
extend any TAIS warranty or modify it in any respect. No modification or
extension of any TAIS warranty is effective unless it is in a writing
signed by TAIS Vice President, General Manager, Telecommunication Systems
Division. MASTER DEALER shall notify TAIS of any claimed defect in any
AUTHORIZED PRODUCT within thirty (30) days of its occurrence, by the giving
of a written report setting forth all pertinent details including a
description of the defect and the time and place of occurrence and shall
ensure that its DEALERS give similar notice to MASTER DEALER so that TAIS
can be notified in such time period.
(d) In the event MASTER DEALER or any of its DEALERS elect to give a warranty
to an end user which is in addition to or greater that the TAIS warranty in
section 11(a) above, then the MASTER DEALER and its DEALERS shall be solely
responsible for such warranty and shall indemnify and hold harmless TAIS
against any claims based upon or arising out of such warranty, including
TAIS's attorney fees and costs. MASTER DEALER and its DEALERS shall
communicate in writing to the end user that the MASTER DEALER's or DEALER's
warranty is in addition to or different from the TAIS warranty and that
TAIS shall bear no responsibility whatsoever for such warranty. MASTER
DEALER OR DEALER's failure to communicate to the end user as required
herein shall constitute a material default of this Agreement.
(e) MASTER DEALER shall make certain that its sales and service personnel and
those of its DEALERS do not make representations about AUTHORIZED PRODUCTS
unless those representations are made by TAIS own literature. MASTER
DEALER shall make certain that all end users are aware of the terms of the
TAIS warranty prior to the sale of an AUTHORIZED PRODUCT to an end user.
MASTER DEDALER shall prepare or cause an end user to prepare and forward to
TAIS any warranty registration materials or the like which TAIS may
require.
(f) MASTER DEALER is responsible for insuring that every end user obtains
whatever warranty service an end user (which purchased from MASTER DEALER
or one or its DEALERS) deserves under the TAIS warranty. TAIS's sole
responsibility shall be to repair AUTHORIZED PRODUCTS under warranty, in
accordance with the procedures set forth in TAIS's warranty policy, which
TAIS may establish from time to time. If requested by TAIS in writing,
MASTER DEALER shall also use best efforts to assist in providing warranty
service for AUTHORIZED PRODUCTS or other products in the TERRITORY, sold or
marketed by persons other than MASTER DEALER or its DEALERS.
(g) Replacement parts and repaired equipment out-of-warranty will carry a
ninety (90) day warranty on the part, assembly or component that was
replaced or repaired and shall be subject to the same limitations and
exclusions as TAIS' new product warranty.
(h) TAIS reserves the right at any time to amend or modify its warranty policy
for end users or for MASTER DEALER or its DEALERS, including any
limitations or exclusions applicable thereto,
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provided that such is done in a writing signed by TAIS' Vice President,
General Manager, Telecommunication Systems Division.
(i) If MASTER DEALER and/or its DEALERS do not follow TAIS' warranty policy,
MASTER DEALER and/or its DEALERS shall be legally responsible for any
damages or expenses that arise beyond those expressly owed by TAIS under
its warranty policy.
DURATION AND TERMINATION
12. This Agreement shall originally be for a term ending on the March 31st
which follows the date of this Agreement, shall automatically renew for
successive one (1) year periods, unless TAIS gives notice of termination at
least thirty (30) days prior to the next March 31st of the then current
Agreement period, and shall not be terminable by TAIS during such period
except as provided in section 12(a) below. Such notice of termination may
be given by TAIS for any reason, with or without cause, and, if given,
termination shall be effective March 31st of the then current Agreement
period. MASTER DEALER may terminate this Agreement at any time for any
reason upon the giving of sixty (60) days prior written notice to TAIS. In
consideration for entering into this Agreement, MASTER DEALER waives any
right to claim any damages, whether direct, indirect, incidental,
consequential, special, exemplary, or punitive arising out of the
termination of the Agreement in accordance with this section 12 or section
12(a). In the event MASTER DEALER shall make any such allegation, then
upon motion by TAIS, such allegation shall be dismissed.
(a) Notwithstanding anything to the contrary contained in this Agreement,
TAIS may terminate this Agreement by giving MASTER DEALER thirty (30)
days prior written notice in the event of any default or failure by
MASTER DEALER in the performance of any of its duties, obligations or
responsibilities under this Agreement. This AGREEMENT shall
automatically terminate if the MASTER DEALER shall make an assignment
or otherwise changes ownership in violation of Section 13 hereof.
(b) Upon termination of this agreement, MASTER DEALER and its DESIGNATED
DEALERS shall pay to TAIS any debit balance they have with TAIS and,
should MASTER DEALER'S or its DESIGNATED DEALERS' accounts be debited
by TAIS thereafter in accordance with this Agreement, MASTER DEALER
and its DESIGNATED DEALERS shall promptly pay such debts in full.
(c) Upon termination of this Agreement for whatever reason, MASTER DEALER
shall remain obligated and responsible to provide warranty and other
necessary service and maintenance to all end users to whom MASTER
DEALER or its DEALERS sold or otherwise marketed AUTHORIZED PRODUCTS.
In case of a government, national, rental or major account covered by
a program implemented by TAIS pursuant to section 20 of this
agreement, MASTER DEALER shall, if required by TAIS in writing,
transfer or cause its DEALERS to transfer the service arrangements for
such (and any prorated prepayments received by MASTER DEALER or its
DEALERS for unexpired service and maintenance) to such other persons
as TAIS may designate.
(d) Upon termination of this Agreement, MASTER DEALER and its DEALERS
become "Maintenance Only" Dealers with TAIS under the terms of which
MASTER DEALER and its DEALERS are allowed to purchase, at list price,
replacement parts, spares and additions
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(but not enhancements) for AUTHORIZED PRODUCTS in accordance with
terms to be mutually agreed upon between the parties but, this
"MAINTENANCE ONLY" arrangement may be revoked by TAIS, at its sole
discretion at any time. The acceptance by TAIS of any purchase order
from the MASTER DEALER or its DEALERS for the sale of any Toshiba
AUTHORIZED PRODUCTS by TAIS to MASTER DEALER or its DEALERS after the
termination of this Agreement shall not be construed as a renewal or
an extension, or as a waiver of termination of this AGREEMENT, but in
the absence of a new written Agreement, all such transactions shall be
governed by the provisions of this Agreement.
13. ASSIGNMENT AND OWNERSHIP. MASTER DEALER may not assign this Agreement or
------------------------
its rights hereunder, or enter into any joint venture arrangements
concerning AUTHORIZED PRODUCTS, or cause or suffer any change in MASTER
DEALER's senior management, control or principal ownership, without the
prior written consent of TAIS's Vice President, General Manager,
Telecommunication Systems Division. TAIS, on thirty (30) days notice to
MASTER DEALER may assign this Agreement or TAIS' rights hereunder to a TAIS
affiliate company.
14. SECURITY INTEREST. MASTER DEALER hereby grants to TAIS a security interest
-----------------
in all AUTHORIZED PRODUCTS, now owned by MASTER DEALER or hereafter
acquired by MASTER DEALER or hereafter acquired by MASTER DEALER (the
"collateral") and in the proceeds of and products of such collateral
(including but not limited to all accounts receivable and the proceeds of
any insurance covering the collateral, credits, and commissions). This
security interest shall secure the payment by MASTER DEALER of all monies
now due or which hereafter become due to TAIS and shall secure to TAIS the
full performance by MASTER DEALER of its obligations under this Agreement.
(Any failure by MASTER DEALER to make any payment and/or failure to fully
perform any of its obligations under this Agreement shall constitute a
default for purposed of any law pertaining to TAIS's right as a secured
party. MASTER DEALER hereby authorizes TAIS to sign on behalf of MASTER
DEALER and file in any jurisdiction, with or without the signature of
MASTER DEALER, financing statements with respect to this security
interest).
15. FINANCIAL STATEMENTS. On request of TAIS, MASTER DEALER shall furnish
--------------------
yearly to TAIS, on request, a full and accurate detailed written statement
of MASTER DEALER's financial condition, including MASTER DEALER's then
current balance sheet, profit and loss statement, and such interim
statements as TAIS may request. MASTER DEALER certifies that the
statements are an accurate representation of its financial condition and
are certified by MASTER DEALER's certified public accountant or its chief
financial officer. TAIS agrees not to disclose any financial data received
from MASTER DEALER to persons outside of Toshiba America Information
Systems, Inc. without MASTER DEALER's prior authorization, except to such
financial institutions providing leasing or financing to MASTER DEALER or
its DESIGNATED DEALERS.
TRADEMARKS, TRADE NAMES AND GOODWILL
16. MASTER DEALER hereby acknowledges the validity of the trademarks TOSHIBA(R)
STRATA(R) , PERCEPTION(R), STRATAGYTM, INTOUCH, and other marks and trade
names now or hereafter affixed to AUTHORIZED PRODUCTS used in connection
with TAIS' business, and MASTER DEALER agrees that such are exclusively
owned by TAIS or its parent corporation and that MASTER DEALER shall not
contest same. MASTER DEALER agrees not to remove such
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marks or names from AUTHORIZED PRODUCTS, or alter or deface same and shall
ensure that its DEALERS do not do so.
(a) MASTER DEALER and its DEALERS are hereby granted a non-exclusive right
to use in the TERRITORY in connection with such AUTHORIZED PRODUCTS,
such trademarks or names as TAIS uses in connection with such PRODUCTS
and each to refer to itself as an Authorized Toshiba
Telecommunications DEALER, in connection with the promotion, sale,
marketing or service of AUTHORIZED PRODUCTS in the TERRITORY, but all
such rights shall cease immediately upon the termination of this
Agreement. MASTER DEALER shall ensure that its arrangements with its
DEALERS provide that, on termination of the DEALER's dealership,
DEALER's license to use such trademarks and to refer to itself as an
Authorized Toshiba Telecommunications Dealer terminates.
(b) Notwithstanding the foregoing, MASTER DEALER and its DEALERS shall not
use, and are strictly prohibited from using, any such trademarks or
trade names as part of MASTER DEALER's or any of its DEALER's
trademarks or names in any manner which TAIS concludes, in its sole
judgment, is unfair, confusing or misleading to the public or which
otherwise adversely reflects upon the good name and reputation of TAIS
or its parent corporation.
(c) The parties acknowledge that the goodwill associated with the
marketing of AUTHORIZED PRODUCTS belongs to TAIS and that MASTER
DEALER and its DEALERS shall have no vested or proprietary right
thereto.
17. SOFTWARE, COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY. MASTER DEALER hereby
----------------------------------------------------
acknowledges the validity of all copyrights registered by or in favor of
TAIS or Toshiba Corporation in respect of software and any other works
which may be copyrighted. MASTER DEALER agrees that it will comply with
any licensing, sublicensing or other program which TAIS may from time to
time implement with respect to software used in connection with AUTHORIZED
PRODUCTS. MASTER DEALER shall not enhance or in any way alter any such
software and shall ensure that its Dealers do not do so. Any alteration to
any software also voids any warranty given by TAIS with respect thereto.
MASTER DEALER and its DEALERS shall treat as confidential all non-public
technical, Marketing, price and other information supplied by TAIS, and
shall not publish, display, or distribute (including via The Internet of
other electronic transmissions) any such TAIS information, without the
express written consent of the Vice President, General Manager of TAIS.
Any publication in violation of this provision shall cause irrepairable
harm to TAIS for which injunctive relief shall be deemed an appropriate,
but not an exclusive, remedy.
18. INDEPENDENT CONTRACTOR RELATIONSHIP. MASTER DEALER specifically
-----------------------------------
acknowledges and agrees that: (a) it is an independent contractor; (b)
neither the MASTER DEALER nor any of its DEALERS, nor any of the MASTER
DEALER's or its DEALERS' employees are employees of TAIS under the meaning
or application of any law; (c) this Agreement shall not be construed as a
franchise and MASTER DEALER shall not be deemed a franchisee, under any
circumstance whatsoever; (d) MASTER DEALER shall not hold itself out as an
agent of TAIS; (e) MASTER DEALER shall not commit TAIS to any contractual
obligation nor make any warranties or statements ostensibly on behalf of or
approved by TAIS with respect to AUTORIZED PRODUCTS other than those set
forth in TAIS' advertising and warranty
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literature; (f) MASTER DEALER shall not engage in any conduct violative of
Federal, state or local laws or regulations with respect to the performance
of this Agreement; and (g) any breach of the terms of this section 18 shall
be deemed a material default of this Agreement.
19. EXCUSE OF PERFORMANCE. TAIS shall not be liable for failure to deliver,
---------------------
delays in delivery or failures to perform under this Agreement occasioned,
in whole or in part, by strikes, lockouts, embargoes, war or other outbreak
of hostilities, inability to obtain materials or shipping space, machinery
breakdown, delays of carriers or suppliers, governmental acts and
regulations, acts of God, receipt of orders in excess of TAIS' inventory or
then scheduled delivery capacity or any unforeseen circumstances or causes
beyond TAIS' reasonable control.
20. GOVERNMENT, NAITONAL AND MAJOR ACCOUNTS. TAIS and MASTER DEALER
---------------------------------------
acknowledges that, in order to maximize market penetration for AUTHORIZED
PRODUCTS, it is appropriate for MASTER DEALER and/or its DEALRS, other
authorized TAIS dealers, or TAIS directly to sell or otherwise market
AUTHORIZED PRODUCTS to major end user accounts, including national accounts
(which are defined as multi-location end-user companies that centrally
select, standardize, and procure their telecommunications equipment for
their own use) and federal, state, and local government accounts, some of
whom may have multiple end user locations in different geographic areas,
including areas within or outside the TERRITORY. In such instances, it may
be necessary for TAIS, MASTER DEALER, and/or its DEALERS, or other
authorized TAIS dealers to make arrangements with each other, to ensure
proper installation, warranty and regular service and maintenance. MASTER
DEALER and its DEALERS shall
(a) Abide by terms and conditions of the TAIS National Account Program as
established by TAIS from time to time and more fully defined in the
National Accounts Policy and Procedures Manual.
(b) Act as an independent contractor without any authority to bind or
obligate TAIS as in accordance with Section 18 of the
Telecommunication MASTER DEALER Agreement. TAIS shall be bound or
obligated in a National Account transaction only after the necessary
approval documents are executed by the appropriate TAIS employee.
(c) Sell AUTHORIZED PRODUCTS within the scope, and under the Terms and
Conditions of the National Accounts Program to customers who purchase
or are headquartered within their territory as defined in Schedule(s)
B. An Originating Dealer is defined as a Dealer approved by TAIS that
is the "selling" Dealer. The Originating Dealer establishes a
"selling" relationship with a National Account by filing a Request For
Originating Dealer status form (ROD) with the TAIS National Account
Program Coordinator's office and with the approval of the National
Account Program Sales Manager for the MASTER DEALER or its DEALERS.
(d) Only quote TAIS standard equipment purchase and installation, service
and/or maintenance prices, as TAIS may establish from time to time, to
a National Account, unless otherwise authorized in writing by the TAIS
national Account Sales Manager. A National Account sale is completed
after a TAIS Master Pricing agreement is executed by the National
Account, the Originating DEALER, and TAIS. The Originating DEALER
will procure orders from the National Account Customer and submit the
orders on the TAIS National Account Purchase Agreement form. Upon
receipt by TAIS of a properly executed Delivery and Acceptance letter,
TAIS will (a) invoice the National Account and
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(b) issue all appropriate credits for commissions and installation
fees to both the MASTER DEALER, Installing and Maintenance DEALERS.
(e) Assume the entire responsibility and liability for losses, expenses,
demands and claims in connection with or arising out of any injury,
including death, to any person, or damage, or alleged damage, to any
property of the National Account Customer, or others, sustained in
connection with, or alleged to have arisen out of, or resulting from
the performance of the work by the MASTER DEALER or its DEALERS, its
agents, and employees, including losses, expenses or damages sustained
by the National Account Customer. MASTER DEALER agrees to indemnify
and hold harmless the National Account Customer, the Originating
and/or Installing DEALER, and TAIS, their agents, and employees from
any and all such losses, expenses, damages, demands and claims,
including attorney fees and costs, and agrees to defend any suit or
action brought against them or any of them, based on any such alleged
injury or damage, and further agrees to pay all damages, costs, and
expenses in connection therewith or resulting therefrom. MASTER
DEALER is liable for its sole negligence and/or willful misconduct,
and shall not be liable for the negligence or willful misconduct of
others.
(f) Obtain General Liability Insurance in the amount of $1.0 Million and a
Certificate of Insurance naming TAIS as an additional insured party.
The insurance shall be maintained with an approved insurance carrier
of at least an AAA rating, and shall cover the obligations of the
MASTER DEALER set forth in Section 20(e). MASTER DEALER warrants that
it shall provide proof of said insurance to TAIS prior to
participating in the National Accounts Program.
(g) Use its best efforts to cooperate with and assist and other TAIS and
other authorized TAIS dealers.
(h) Comply, and ask its DEALERS to comply if asked, to perform a TAIS
National Account or TAIS Government System Site Survey within its
prescribed geographical area as stated on Schedule (B)(s) hereto.
(i) Honor the established relationship that exists between the TAIS
prospective or existing National Account and the Originating Dealer of
TAIS and the prospective or existing Government Agency.
(j) Provide TAIS with substantiation of sales to government or to non-
profit organizations in a form satisfactory to TAIS. MASTER DEALER
and its DEALERS warrant that all AUTHORIZED PRODUCTS ordered from TAIS
for government system or non-profit organizations installations; shall
be installed at the governmental agency or non-profit organization
sites. Neither MASTER DEALER nor its DEALERS shall transfer such
AUTHORIZED PRODUCTS to a non-government agency installation or other
installation site. Violation of this provision shall constitute a
material breach of this Agreement.
(k) Honor the National Account Program Requirements and relationships as
defined in section 20(i) of this Telecommunication Dealer Agreement.
TAIS is the sole arbitrator in any conflicts or disputes arising from
the National Account Program.
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21. ENTIRE AGREEMENT. This Agreement, including any attached schedules or
----------------
addenda, constitutes the entire Agreement of the parties with respect to
its subject matter. There are no other Agreements pertaining to the
subject matter hereof, either oral or written. No contrary, different or
additional terms will apply to transactions contemplated by this Agreement,
even if such terms are contained on MASTER DEALER's purchase order forms or
on other documents sent to TAIS by MASTER DEALER or any of its DEALERS.
MASTER DEALER agrees that all prior written or oral communications with
TAIS regarding this Agreement are superseded by the terms of this
Agreement. MASTER DEALER acknowledges that it has had an opportunity to
review this Agreement independently with counsel prior to signing, and that
it has not relied upon any prior written or oral representations by TAIS in
signing this Agreement. MASTER DEALER states that it was not induced into
signing this Agreement, and hereby waives any right to claims fraudulent
inducement in the execution hereof. In other words, the only contract or
Agreement regarding the subject matter hereof is contained in the Agreement
without exception.
22. POST-EXECUTION MODIFICATIONS AND WAIVER. With the exception of Schedules
---------------------------------------
A, C, D and Section 23(b) which may be modified or amended unilaterally by
TAIS at any time with a thirty (30) day written notice to MASTER DEALER,
once this agreement is executed by TAIS and MASTER DEALER, this Agreement
may not be modified or amended except in a writing signed by MASTER DEALER
and by TAIS' Vice President, General Manager, Telecommunication Systems
Division. Either party may waive, in writing, a provision in this
Agreement which is for its benefit, but such provision shall not otherwise
be deemed waived. A waiver of any provision in any one instance shall not
be deemed a waiver of any provision in any other instance.
23. EXPORT AND STATEMENT OF ASSURANCE.
---------------------------------
(a) This Agreement involves products and/or technical data that may be
controlled under the U.S. Export Administration Regulations, and may
be subject to the approval of the U.S. Department of Commerce prior to
export. Any export, directly or indirectly, in contravention of the
U.S. Export Administration Regulations is strictly prohibited.
(b) MASTER DEALER and its DEALERS certify that they are the recipient of
the commodities or technical data to be delivered under shipments
received from TAIS. The commodities will not be sold or otherwise
made available, directly or indirectly, to or for the use by any
entities in Libya, N. Korea, Cuba, Haiti, Iraq, Serbia, Iran, and
Montenegro, or any entity, in any Country involved directly or
indirectly in either Nuclear, Chemical, Biological and Missile end
uses or entities identified by the U.S. Department of Commerce and
listed in the Table of Denial Orders. These commodities or technical
data are not to be used to service Strategic Products owned,
controlled, or used by or for the entities indicated above, or used to
manufacturer Strategic Products intended for such entities. MASTER
DEALER will ensure that MASTER DEALER and its DEALERS will cooperate
with post-shipment inquiries by U.S. officials to verify disposition
or use of the commodities. If requested by TAIS, MASTER DEALER will
ensure that MASTER DEALER and its DEALERS will periodically provide
information concerning the disposition or use of commodities received,
including the identity of customers to whom the items were resold.
Any export or re-export by the purchaser, directly or indirectly, in
contravention of the U.S. Export Administration Regulations is
prohibited.
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MISCELLANEOUS PROVISIONS
24. This Agreement shall be construed and governed in accordance with the laws
of the State of California.
25. Should any provisions of this Agreement be held invalid or unenforceable,
the remaining provisions shall nevertheless be given full force and effect.
In any judicial proceeding related to or arising out of or in connection
with this Agreement, or the conduct of the parties with respect to the
goods covered by this Agreement, or the breach of this Agreement or of any
law applicable to the conduct of the parties, the matter shall be tried and
determined by a judge alone, without a jury. In any such action, the
prevailing party shall be entitled to an award of attorney fees and costs.
26. Wherever in the Agreement the consent or authorization of TAIS by a TAIS
employee of specific corporate position is required, only such person or a
TAIS employee of higher corporate position may bind TAIS.
27. This Agreement shall not be binding upon TAIS until it has been executed by
TAIS' Vice President, General Manager, Telecommunication Systems Division.
28. If this Agreement is executed in duplicate, each copy will be considered an
original, but both taken together shall constitute but none Agreement.
29. The person executing this Agreement on behalf of MASTER DEALER represents
and warrants that he is duly authorized to bind MASTER DEALER has
authorized him to execute this Agreement on behalf of MASTER DEALER.
30. All notices required to be given hereunder shall be writing and may be sent
by mail to the other party at its office indicated below, or as such party
may later change by notice in writing. Notices sent by mail shall be
deemed given when deposited in the mail and notices given by other means
shall be deemed given when received by the party to whom such notice is
addressed; provided, however, that a method of mailing requiring a return
receipt or overnight carrier shall be used for notice given pursuant to
sections 4(c), 9(c), 9(g), 11(c), 12, 12(a), of this Agreement.
31. Section headings used in this Agreement are for convenience only and shall
not be deemed to affect in any way the interpretation or meaning of the
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
in the heading on the first page of this Agreement.
COMMUNCATIONS WORLD INTERNATIONAL,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Accepted by:
---------------------------
Toshiba America Information Systems, Inc.
Telecommunication Systems Division
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
----------------------------------
Printed Name of Person Signing for ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MASTER DEALER
CEO By: ________________________________
----------------------------------
Title of Person Signing for MASTER Vice President, General Manager
DEALER Telecommunication Systems
Division
__________________________________
Legal Status of MASTER DEALER
(Sole-Proprietorships, Partnership, Corporation)
COLORADO
-----------------------------------
State in Which Formed
▇▇▇▇ ▇. ▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Address of Principal Place of Business zip
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