AGREEMENT NUMBER _________
JBA INTERNATIONAL, INC.
DISTRIBUTORSHIP AGREEMENT
JBA INTERNATIONAL, INC. and Casa Informatica, S.A _________________
(hereinafter called "JBA") (hereinafter called "Distributor")
Address: Address:
Centerpointe Building ▇▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇-▇▇ __________________
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇ _________________
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Colombia ______________________________
accept and agree to the terms, provisions and conditions in the attached Terms
and Conditions and the following Schedules which will constitute the entire
Distributorship Agreement between the parties. The Effective Date of this
Distributorship Agreement is as indicated below.
JBA DISTRIBUTOR
Signed for and on behalf of JBA: Signed for and on behalf of Distributor
Name ▇▇▇▇ ▇▇▇▇ Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title Vice President Title Gerente General
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Signature ▇▇▇▇ ▇▇▇▇ Signature ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date August 19, 1998 Date August 1, 1998
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Effective Date: August 19, 1998
------------------------
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TERMS & CONDITIONS
1. DEFINITIONS AND CONSTRUCTION:
(a) As used in this Distributorship Agreement, the following terms
shall have the meanings set forth below:
"Confidential Information" shall mean all information (oral or written and in
any medium whatsoever) concerning the business and affairs of either party that
the other has obtained or received from any source as a result of discussions
leading to this Distributorship Agreement or otherwise, or which such party
hereafter obtains during the course of its performance hereunder, save that
which is deemed not to be Confidential Information under Section 17(c) hereof.
"Committed Resources" shall mean the personnel and other resources which the
Distributor has committed to maintain for the purpose of commercially exploiting
the Territory as set forth in Schedule C hereof.
"Certification" shall mean the educational training as required by JBA, as such
requirements may be amended and updated by JBA from time to time.
"Distributor" shall mean the Person identified as such on the signature page of
this Distributorship Agreement.
"End User" shall mean a Person who has acquired, through license, a right (i) to
use the Products in such Person's trade or business to meet its internal data
processing needs; and/or (ii) to use the Products in a trade or business of its
majority-owned affiliate to meet such affiliates data processing needs.
"Distributorship Agreement" shall mean this Distributorship Agreement in its
entirety, including all Schedules and attachments referencing this
Distributorship Agreement, as the same may be amended from time to time.
"JBA" shall mean JBA International, Inc., a company incorporated in the State of
Georgia, with its principal place of business in Mt. Laurel, NJ.
"JBA Group" shall mean collectively, JBA Holdings, PLC, and all Persons
controlled, directly or indirectly, by JBA Holdings, PLC, including JBA.
"Person" shall mean any individual, corporation, proprietorship, partnership,
association, limited liability company, trust, government, governmental agency
or body, or any other group or entity, no matter how or when organized and
whether or not for profit.
"Primary Sales Target" shall mean the primary sales target set out in Schedule B
to this Distributorship Agreement, as reset from time to time by JBA on an
annual basis pursuant to Section 5(g) hereof.
"Products" shall mean the software and services as to which this
Distributorship Agreement relates as determined by JBA, such determination to
be provided to Distributor from time to time by JBA in writing specifically
referencing this Distributorship Agreement. The software shall be limited to
such products, versions and modules specified on Exhibit A (as may be amended
from time to time by JBA).
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"Software License and Support Agreement" shall mean JBA's standard Software
License and Support Agreement, as amended from time to time by JBA. Any
amendments or supplements to JBA's standard agreement to localize its use in the
Territory or otherwise must be approved in advance by JBA. Copies of all such
agreements shall be provided to JBA for approval as to form and substance.
"Territory" shall mean the geographic area identified as the territory as
determined by JBA and set forth in Exhibit A hereto.
"Works" shall mean all materials (whether tangible or intangible) including
system software and hardware designs, plans, drawings, graphics, enhancements,
combinations and architecture and work flow designs and procedures, files,
reports, records, data and data management or other techniques, and programs
(including source and object code versions thereof) in any medium of expression
that are or may be subject to copyright or other protection.
(b) The use herein of the words "include," "includes" and "including"
shall be by way of illustration and without limitation to matters otherwise
enumerated thereafter. The use of the words "hereto," "herein," and "hereunder"
refer to this Distributorship Agreement in its entirety, including any
schedules, addenda, or attachments incorporated herein by reference.
2. APPOINTMENT OF DISTRIBUTOR:
(a) Subject to the terms and conditions contained in this
Distributorship Agreement, JBA hereby appoints Distributor to act as JBA's
distributor, during the initial term hereof and thereafter until terminated
pursuant to this Distributorship Agreement, to perform as follows:
(i) to actively promote and market, in any lawful manner not
inconsistent with any policy or directive of JBA in effect from time to time,
the licensing, installation and use of the Products, including software
maintenance and support services, to End Users and to prospective End Users
located within the Territory, and any other prospective End Users identified to
Distributor by JBA from time to time;
(ii) to solicit orders for Products from End Users or prospective
End Users located within the Territory, and any other prospective End Users
identified to Distributor by JBA from time to time;
(iii) to enter into Software License, and Support Agreements with
End Users or prospective End Users located within the Territory and any other
prospective End Users identified to Distributor by JBA from time to time,
provided, however, that no such agreement shall be effective or binding upon JBA
unless and until JBA shall have accepted such agreement in writing (which
condition precedent shall be called to the attention, in writing, to all
prospective End Users); and
(iv) to furnish installation, maintenance and support services to
End Users located within the Territory, and any other prospective End Users
identified to Distributor by JBA from time to time, provided, always, that such
services shall be performed strictly in accordance with JBA's practices,
policies and guidelines applicable thereto, as in effect from time to time.
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(b) Notwithstanding anything in this Distributorship Agreement to the
contrary, Distributor is and shall remain an independent contractor and shall
have no power or authority to bind JBA or otherwise to act for or on behalf of
JBA. Distributor covenants and agrees that it shall not hold itself out as an
agent or affiliate of JBA or otherwise conduct itself in any fashion
inconsistent with its independent contractor status, nor shall it use any name,
tradename, trademark, servicemark or other identification or indication of
source of origin which might lead an End User or prospective End User to believe
that Distributor is an agent of or affiliated with JBA.
3. TERM: The term of this Distributorship Agreement, which commences on the
Effective Date set forth on the signature page hereof, shall be for an initial
period of one (1) year, unless sooner terminated by a party as permitted herein.
This Distributorship Agreement shall renew automatically at the end of the
initial term for a one (1) year renewal term and shall renew automatically for
additional one (1) year terms each year thereafter, unless terminated by JBA by
written notice given at least ninety (90) days prior to the end of the initial
term or any renewal term, or unless otherwise terminated in accordance with this
Distributorship Agreement. JBA may, at reasonable times during the term of this
Distributorship Agreement, review Distributor's performance hereunder and may
terminate this Distributorship Agreement if Distributor is not satisfactorily
meeting its Primary Sales Targets as set forth from time to time by JBA in
accordance with the terms hereof.
4. REPRESENTATIONS AND GENERAL OBLIGATIONS OF JBA:
(a) JBA represents and warrants that JBA has the corporate authority to
enter into this Distributorship Agreement and that the Products do not infringe
any copyrights or patents of any other Person.
(b) JBA represents and warrants that it has the necessary permission,
express or otherwise, to enable any Products owned by third parties to be
provided to Distributor without infringing any third party copyright or patent
rights and that Distributors use of such third party-owned Products in
accordance with this Distributorship Agreement will not infringe any such third
party-owned patents or copyrights. Third party-owned Products may be covered by
specific terms and conditions in addition to the terms and conditions of this
Distributorship Agreement and, where applicable, such specific terms and
conditions are incorporated in this Distributorship Agreement.
(c) During the term of this Distributorship Agreement and for a period
of six (6) months after termination of this Distributorship Agreement, JBA
agrees not to hire any of Distributor's employees for permanent or temporary
employment, or as a subcontractor or consultant without the prior written
consent of Distributor. The Distributor's consent shall not be unreasonably
delayed or withheld.
(d) Magnetic media used to distribute Products and enhancements and
updates of Products may contain additional software code which Distributor is
not authorized to
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promote, market, use, sell or otherwise transfer. The presence of such
additional code on such media in no way implies that Distributor has any rights
whatsoever with respect thereto.
5. ADDITIONAL COVENANTS OF JBA: JBA will use its reasonable endeavors to:
(a) provide Distributor with such object code and other supporting
documentation for the Products for which Distributor is authorized (as JBA deems
necessary in its absolute discretion) for demonstration, education and marketing
purposes for fees established by JBA from time to time;
(b) provide training for employees of Distributor to the extent deemed
necessary by JBA, in its absolute discretion, in order to enable them to market,
install and support the Products. JBA will, from time to time, schedule classes
on the Products and methods, said classes to be conducted at such times and
locations as may be determined by JBA in its absolute discretion for fees
established by JBA from time to time. In all cases, Distributor will be
responsible for all travel, accommodation, and other expenses of its employees
for attending such classes;
(c) provide Distributor with any corrections, enhancements and upgrades
to the Products that JBA may develop and make generally available to End Users
under maintenance agreements with JBA, together with associated documentation.
JBA reserves the right to determine the media to be used for the distribution of
these materials. In any event, the cost of distribution from JBA to Distributor
will be borne by Distributor;
(d) provide Distributor with such information as JBA considers
necessary on new functionality introduced into the Products, and the
availability of new versions of the Products;
(e) issue from time to time a price list for Product license fees;
(f) offer software Products licensed for use in the Territory for which
Distributor is certified at the rates set forth by JBA from time to time; and
(g) on an annual basis, following discussion with Distributor, set the
Primary Sales Target applicable for the following year.
6. REPRESENTATIONS AND GENERAL OBLIGATIONS OF DISTRIBUTOR:
(a) Distributor represents and warrants that it has full right, power
and corporate authority to enter into this Distributorship Agreement and to
perform the services required hereunder and that performance hereunder does not
and will not violate the charter or bylaws of Distributor or any agreement or
instrument to which Distributor is a party or is bound or any law, rule or
regulation applicable to or binding upon Distributor.
(b) Distributor represents and warrants that it has the necessary
permission, express or otherwise, to enable any Products owned by third parties
and necessary for JBA to fulfill its obligations under this Distributorship
Agreement to be used by Distributor without infringing third party copyright,
patent or any
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other rights and that the disclosure or use of such third party Products by JBA
and/or Distributor will not involve any breach of contract. Third party Products
may be covered by specific terms and conditions in addition to the terms and
conditions of this Distributorship Agreement and, where applicable, such
specific terms and conditions form part of this Distributorship Agreement when
such third party Products are licensed or purchased. Distributor acknowledges
that such third parties shall retain all right, title and interest in and to all
tangible and intangible incidents of such third party Products.
(c) Distributor agrees to establish and maintain at the expense of
Distributor the Committed Resources at all times during the term hereof.
(d) Distributor agrees to market Products only in a manner that is not
contrary to this Distributorship Agreement and to comply with all federal, state
and local laws and regulations which are applicable to activities undertaken
pursuant to this Distributorship Agreement.
(e) Distributor agrees to: (i) keep and maintain proper and adequate
records relating to its performance under this Distributorship Agreement, and
make the same available for inspection by JBA or its representatives during
customary business hours upon JBA's request; (ii) provide and maintain the day
to day support, personnel and financial resources necessary to honor all
obligations under this Distributorship Agreement and generally perform all
duties hereunder with the highest care and skill in order to cultivate and
maintain good relations with End Users and prospective End Users in the
Territory, (iii) pay all amounts owed to JBA (without abatement, deduction or
set off) within the payment terms established from time to time by JBA and
outlined in any JBA software distributor pricing and policy guides. When JBA
negotiates extended or special payment terms directly with an End User or
prospective End User, such terms will apply to the Distributor. Interest on
amounts not paid when due shall accrue at a rate equal to the lesser of the
highest rate allowed by law or 1.5% per month or part thereof. Distributor shall
promptly notifiy JBA of all laws and regulations in effect anywhere within the
Territory from time to time relating to the packaging and labeling of the
Products, and promptly notify JBA if it becomes aware that the arrangements
contemplated by this Distributorship Agreement are or may be in breach of any
such laws or regulations.
(f) Distributor further agrees while acting hereunder and for a period
of six (6) months thereafter: (i) to refrain from directly or indirectly
soliciting, engaging or employing the services, whether as an employee or as an
independent contractor, of any Person who at the time of such solicitation,
employment or engagement is an employee of JBA or any member of the JBA Group
without the prior written consent of JBA; and (ii) to refrain from directly or
indirectly distributing, selling or licensing in the Territory any products
similar to or competitive with any Product without the prior written consent of
JBA. The obligations herein set forth shall survive the termination of this
Distributorship Agreement for six (6) calendar months.
(g) Distributor shall not make any promises, statements or
representations or give any warranties in connection with
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Products covered by this Distributorship Agreement for or on behalf of JBA, or
other third parties, including any promise, statement, representation or
warranty indicating or implying that the performance of the Products is greater
or different than indicated in the related user documentation, brochures and
other sales literature approved in writing, in advance by JBA.
(h) Distributor agrees to maintain and execute all business practices
necessary or desirable to: (i) protect the copyrights, patents and other
proprietary rights of JBA in and to the Products; and (ii) prevent the
disclosure of any source code for any Product or any correction, revision or
enhancement of any Product to any Person whatsoever, except as expressly
authorized by JBA hereunder. Distributor further undertakes to take all such
steps as shall from time to time be necessary or desirable to ensure compliance
with the provisions of Section 17 of this Distributorship Agreement by its
employees and by its agents, consultants and subcontractors. Distributor does
hereby indemnify and hold harmless JBA and each member of the JBA Group against
any loss, cost, damage or expense of any kind, including, attorney fees and
other costs of enforcement, sustained or incurred as a result of Distributor's
failure to comply with the provisions of Section 17. Distributor shall promptly
notify JBA if it becomes aware of any disclosure, publication or other breach of
confidence by any Person to whom Distributor divulges any JBA Confidential
Information and shall give to JBA all assistance in connection with any
proceedings that JBA may institute against such Person. Distributor's
obligation to protect and maintain JBA's Confidential Information shall survive
indefinitely termination of this Distributorship Agreement for any reason.
(i) Distributor agrees to maintain at all times current Certification
by JBA for the license and installation of Products and to comply with any and
all requirements for the renewal of such Certification. Distributor shall only
be approved to deal with those Products for which Distributor maintains such
current Certification.
7. ADDITIONAL COVENANTS OF DISTRIBUTOR:
(a) In addition to the obligations contained herein, Distributor
acknowledges that (i) JBA holds all right, title and interest in and to all
tangible and intangible right to and incidents of the Products; (ii) JBA claims
copyright protection in and to the Products; (iii) such Products contain
valuable, proprietary, confidential and trade secret information of JBA, and
(iv) JBA reserves to itself all rights and benefits afforded under all copyright
laws and conventions.
(b) Distributor agrees to take such action as may be necessary or
desirable for JBA to receive full and due accreditation for the Products, and
further agrees that JBA's name shall be used in descriptions of the Products
and in all marketing thereof, unless otherwise agreed in writing by JBA.
(c) Distributor shall not: (i) be entitled to license or to enter into
any contracts for the licensing of the Products on behalf of JBA or to bind JBA
in any way; (ii) hold itself out or permit any Person to hold itself out as
being authorized to bind JBA in any way; (iii) do any act which might reasonably
create the
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impression that it is authorized to do any of the acts referred to in items (i)
and (ii) above; or (iv) incur any expense, debt, obligation, liability or tax
for or on account of JBA or otherwise commit or pledge the credit of JBA in any
way.
(d) Distributor further agrees to:
(i) assist JBA in the commercial exploitation of the Territory and
ensure that its employees are adequately trained in all aspects of the Products
so that these obligations can be fulfilled;
(ii) provide JBA with reports concerning each End User identifying
and describing any problems or other matters of interest occurring during or
relating to the installation of Products licensed to such End User, such reports
to be provided promptly and in any event within four (4) calendar months after
the signing of any Software License and Support Agreement;
(iii) on a monthly basis, no later than the fifth day of each
month, provide JBA with a forecast of orders for Products expected to occur
during the next three-month (or longer) period;
(iv) endeavor to sell to End Users JBA's software support services;
(v) assist JBA with the development and improvement of the Products
and with the implementation and servicing of the programs described in this
Schedule SA, including referring to JBA all recommendations and comments
received from End Users and prospective End Users of the Products, as soon as
reasonably practical;
(vi) promptly inform JBA of any complaint concerning the Products
which is received by Distributor, and/or matters likely to be relevant in
relation to the development, promotion, licensing, use or maintenance of the
Products in the Territory; and
(vii) maintain demonstration equipment, facilities and resources
in the Territory acceptable to JBA.
8 NON-EXCLUSIVE TERRITORY:
(a) Any Territory described in Schedule A to this Distributorship
Agreement shall be non-exclusive and JBA shall retain the right to sell, license
and market in such Territory, directly or indirectly, including, the right to
appoint additional Distributors to operate in such Territory, without incurring
any commission or other obligation to Distributor.
(b) Distributor's right to any and all commissions, finder's fees
and/or payments of any kind shall be limited solely to Product sales by
Distributor in the Territory, except as otherwise agreed by JBA in writing as an
addendum to this Distributorship Agreement. Distributor shall not solicit any
orders for Products covered by this Distributorship Agreement to be purchased
and/or used outside the Territory from any Person wherever located. For the
purposes of this Distributorship Agreement, a software Product shall be deemed
to be used at the location of the central processing unit on which such Product
is run.
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9. TERMINATION:
(a) This Distributorship Agreement may be terminated forthwith by JBA
upon written notice to Distributor upon the occurrence of any one or more of the
following events: (i) if Distributor shall fail to comply with or breach any
term or condition of this Distributorship Agreement or to perform any of its
obligations under or pursuant to this Distributorship Agreement, including the
failure to pay any amount due hereunder, (ii) if a change in ownership or
control of Distributor or Distributor's business shall occur, whether voluntary,
by operation of law or otherwise, and whether beneficial or otherwise to
Distributor. If the Distributor provides JBA with an ownership transition plan
which JBA approves in advance in writing, in its absolute discretion, then this
Distributorship Agreement will remain in effect upon the execution of the
ownership transition plan.
(b) Distributor may be terminated by JBA immediately and without prior
notice to Distributor upon the occurrence of any one or more of the following
events:
(i) if Distributor in any year fails to obtain orders for Products
to be used in the Territory aggregating at least seventy percent (70%) of the
aggregate Primary Sales Target established by JBA for such year;
(ii) if Distributor convenes a meeting of its creditors or a
proposal shall be made for a voluntary arrangement in respect of insolvency or a
proposal shall be made for any other composition, scheme or arrangement with (or
assignment for the benefit of) its creditors, or Distributor shall be unable to
pay its debts as they fall due, or a trustee, receiver, administrator or similar
officer is appointed in respect of all or any part of the business or assets of
Distributor, or a petition is filed by Distributor seeking relief under the
United States Bankruptcy Code or any similar or successor legislation (whether
US. or foreign), or a petition is filed against Distributor under the United
States Bankruptcy Code or any similar or successor legislation (whether US. or
foreign), and such petition remains undismissed for a period of sixty days;
(iii) if a change in ownership, whether beneficial or otherwise, of
Distributor shall occur such that either (x) a third party reasonably deemed by
JBA to be its competitor owns a material interest in Distributor, or (y) any
party not presently beneficially owning an equity interest in Distributor owns
an equity interest in Distributor greater than fifteen percent (15%) of the
aggregate outstanding equity interest;
(iv) if Distributor markets, installs or supports any other
products deemed by JBA as competitive to the Products described herein; or
(v) if Distributor should, for any reason, fail to maintain current
Certification by JBA for the sale and installation of any Products in
accordance with the terms herof.
(c) Distributor may terminate this Distributorship Agreement if JBA
commits a material breach of any material term or condition hereof and, in the
case of a breach capable of being remedied, JBA shall not have remedied such
breach within sixty (60) days of its receipt of Distributor's written request to
remedy same.
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10. EFFECT OF TERMINATION:
(a) JBA shall not be liable to Distributor by reason of the termination of this
Distributorship Agreement in accordance with the terms hereof for compensation,
reimbursement or damages whatsoever, including compensation, reimbursement or
damages for or arising out of the loss of prospective profits on anticipated or
prospective sales, or on account of expenditures, investments, loss of
commitments in connection with the business or goodwill of either party, or
otherwise, nor shall JBA be liable or obligated to Distributor in any way for
subsequent business conducted by JBA, directly or indirectly, with a party
introduced to JBA by or through Distributor. The termination of this
Distributorship Agreement, however, shall not release either party from any
obligation to pay to the other any sum which may then be owing or any other
obligation that, by the terms hereof, survives termination of this
Distributorship Agreement. In the event that either party has any business
transactions with the other or with customers of the other after termination of
this Distributorship Agreement, such transactions shall not be construed as a
renewal of this Distributorship Agreement or any part hereof.
(b) Upon termination of this Distributorship Agreement or any part
hereof, Distributor shall indemnify, defend and hold harmless JBA and each
member of the JBA Group from and against any and all liabilities, losses,
damages, claims, costs, suits, charges, demands, proceedings, actions and
expenses paid or incurred in meeting Distributor's obligations or the joint
obligations of Distributor and JBA under any support or any other agreement
entered into between the parties hereto (or either of them) and any third
Person.
(c) Upon termination for any reason or expiration of this
Distributorship Agreement, each party shall return to the other or destroy any
proprietary or Confidential Information in its possession and an officer of each
party shall confirm in writing to the other within thirty (30) days after such
termination or expiration hereof compliance with the provisions of this Section
10. If Distributor shall default in the performance of such obligations, JBA
may, by its employees or agents or otherwise, take such steps as may be
necessary to destroy effectively or erase any copy of the Products and any
proprietary or Confidential Information contained in any data retrieval system
under the control of Distributor.
(d) Upon termination of this Distributorship Agreement: (i) the
obligations of Distributor or any End User and JBA under any agreement including
support and maintenance agreements shall remain in full force and effect; and
(ii) Distributor shall provide JBA with details of any existing support
contracts for the Products.
(e) The provisions of this Section 10 shall survive termination of
this Distribution Agreement for any reason.
11. INDEMNIFICATION: During the term of this Distributorship Agreement, and
after termination of this Distributorship Agreement as set forth in Section 10
above, Distributor agrees to and hereby does: (a) indemnify, defend and hold
harmless JBA and each member of the JBA Group from and against any and all
losses, claims, damages, costs, charges, expenses, liabilities, suits,
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demands, proceedings and actions, including attorneys' fees and costs of
defense, arising out of or relating to injuries to Persons (including death) or
damage to property which may be sustained or incurred as a result of or by
reason of or caused in whole or in party by (i) the negligence, recklessness, or
willful misconduct of Distributor or its agents, employees, consultants, or
subcontractors, (ii) any unauthorized action or omission of Distributor or its
agents, employees, consultants, or subcontractors, (iii) the manner in which
Distributor markets or sells the Products, (iv) the sale, provision or supply by
Distributor of any products or services for use in connection with or in
relation to the Products, or (v) any breach or alleged breach of any applicable
laws or regulations relating to the storage, marketing, export, license, or sale
of the Products; and (b) indemnify, defend and hold harmless JBA and each member
of the JBA Group from and against any and all actions, suits, proceedings,
costs, claims, demands and expenses paid or incurred for or in respect of any
claim of infringement of patents, trademarks, industrial designs, copyrights, or
other intellectual property rights arising under the laws of any country if such
shall be due to or caused in whole or in part by Distributor's act or omission,
whether or not negligence, recklessness or willful misconduct or caused, in
whole or in part, by any alteration, modification, adjustment or use of the
Products. The obligations under this Section 11 shall survive termination of
this Distributorship Agreement for any reason.
12. NAMES AND TRADEMARKS: Distributor shall not at any time during the term of
this Distributorship Agreement or thereafter claim any right, title or interest
in the name "JBA International, Inc.", "JBA International", "JBA" or any other
trademark, servicemark or trade name used, owned or applied for by JBA or any
member of the JBA Group, including those trademarks, servicemarks and or used
trade names set forth in JBA's literature, in connection with or on any
Products.
13. OWNERSHIP:
(a) Distributor hereby covenants and agrees that any modifications made
to the Products by Distributor, and any versions of the Products developed by
Distributor, shall be the exclusive property of JBA and not of Distributor.
Distributor shall cooperate fully with JBA should JBA desire to file any
copyright or patent applications pertaining to the foregoing. Distributor
acknowledges and agrees that all Works relating to the Products shall be the
sole and exclusive property of JBA, whether developed, created, conceived or
made solely by Distributor or in collaboration with any person.
(b) JBA shall also own all intellectual property rights in and to all
Works relating to the Products, including use and derivative use thereof,
patent and copyright rights. Distributor hereby irrevocably and unconditionally
sells, conveys, assigns and transfers to JBA, without the necessity of any
consideration in addition to the consideration received by Distributor
hereunder, all right, title and interest in and to such Works.
(c) This assignment shall be operative with respect to all intellectual
property and moral rights in and to all Works relating to the Products. This
assignment includes any and all rights to secure any renewals or extensions of
copyrights in the United States and elsewhere and transfers to JBA any and all
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rights of action and recovery, if any, possessed by Distributor for past
infringement by others. Distributor shall obtain from Distributor's employees,
subcontractors, consultants and agents any agreement or assignment required to
confirm such rights in JBA and to assign to JBA all rights in and to such Works
as aforesaid. These obligations shall survive termination of the Distributorship
Agreement and this Software Distributor Addendum for any reason.
(d) The foregoing provisions shall apply to any Works relating to the
Products conceived, developed, created or provided by Distributor in connection
with any localization of the Products.
(e) Any stand-alone addition to the Products which has no reliance on,
or integration with, the Products, and which are developed solely by
Distributor, without JBA's assistance, shall be Distributor's property, and
shall be marketed and represented only as separate and distinct from the
Products. Such software shall be clearly marked as a product of Distributor and
not of JBA, unless JBA agrees in writing that such product may be sold as a
JBA-related product.
(f) The parties acknowledge that the remedies available at law for a
breach of the provisions of this Section 13 are inadequate, and accordingly
agree that, in the event of any breach or threatened breach of such provisions
by a party, the other party shall be entitled to equitable relief, including the
entry of temporary restraining orders and preliminary and permanent injunctions,
without the need to post any bond or other security, said relief to be in
addition to, and not in limitation of, any other remedy available to such other
party. The provisions of this Section 13 shall survive termination of this
Distributorship Agreement for any reason.
14. ORDERS: Distributor may order Products pursuant to the terms hereof by
delivering to JBA a purchase order or letter signed by Distributor's duly
authorized representative (or facsimile copy thereof) and specifying the
Products being ordered, delivery site and other pertinent information.
Distributor will also provide any applicable JBA license and support agreements.
The purchase order shall be effective only when accepted by JBA in writing. Any
terms and conditions of the purchase order that conflict with, add to or modify
JBA's terms and conditions of sale are expressly rejected, notwithstanding JBA's
acceptance of the purchase order. The terms and conditions of this
Distributorship Agreement shall comprise the terms and conditions governing the
purchase and sale of the Products ordered. Distributor agrees that any order in
excess of the credit limit established by JBA shall be accompanied by payment
for the amount over such limit.
15. PRICING AND PAYMENT:
(a) Prices shall be set by JBA and be provided to Distributor on
Schedule B, as amended by JBA from time to time. JBA may adjust such prices, in
the absolute exercise of its discretion, upon thirty (30) days' prior written
notice to Distributor, provided, however, that JBA agrees that any price
adjustment to Distributor shall be consistent with price adjustments applied
concurrently to other Distributors. Price adjustments shall not apply to any
Products ordered by Distributor prior to the effective date of any such price
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adjustment All prices shall be net to JBA of any costs, expenses, taxes or other
charges, all of which shall be for Distributor's account.
(b) Distributor may also license Products at a discounted price if
solely for use in developing, testing and supporting its customers. Distributor
agrees not to transfer, sell or lease such Products. The purchase of a
development system will not count in determining Distributors commitment level
and prices.
(c) All fees payable by JBA under this Distributorship Agreement shall
be net of any applicable value added tax, import or export duty, and sales or
use tax of any nature. The Distributor shall be solely responsible for the tax
consequences associated with payments hereunder. The Distributor shall pay
directly, or reimburse JBA where applicable, for any taxes imposed upon JBA
based upon the Distributor's services hereunder, excepting only taxes based upon
JBA's net income. JBA shall not be responsible for paying, collecting or
withholding any federal, state or local employment, social security or similar
taxes associated with any of the Distributor's services provided hereunder.
16. APPLICATION AND FINANCIAL INFORMATION: Distributor has provided JBA with
certain business, financial and other information and material and JBA has
relied on such information and material in determining to appoint Distributor
and enter into this Distributorship Agreement. Distributor represents and
warrants that all material and information provided is true, correct and
complete.
17. CONFIDENTIALITY:
(a) Each party acknowledges that, in connection with the transactions
contemplated by this Distributorship Agreement and the performance of the
parties' obligations hereunder, each Party has obtained and will obtain
proprietary and Confidential Information of the other, including the terms of
this Distributorship Agreement and the pricing for the Products. Each party
agrees that it shall not, and shall take appropriate steps to ensure that its
agents, subcontractors, consultants and employees shall not, reveal, report
publish or otherwise disclose to any other Person, nor use in any manner not
contemplated by this Distributorship Agreement, the proprietary or Confidential
Information of the other party, without such other party's prior written
consent.
(b) Information shall be deemed not to be proprietary or Confidential
Information subject to the restrictions set forth in this Section K if: (i) it
is presently known to the public or generally to Persons in the industries in
which Distributor or JBA engage; -or (ii) becomes so known without breach
hereunder by any Person with a duty of confidentiality or non-disclosure,
including, breach by any party of such party's duties under this Section 17.
(c) Distributor agrees that it will not reverse engineer, decompile or
deconvert any software delivered to Distributor by JBA in object code only.
(d) The parties acknowledge that the remedies available at law for a
breach of the provisions of this Section 17 are inadequate, and accordingly
agree that, in the event of any breach or threatened breach of such provisions
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by a party, the other party shall be entitled to equitable relief, including the
entry of temporary restraining orders and preliminary and permanent injunctions,
without the need to post any bond or other security, said relief to be in
addition to, and not in limitation of, any other remedy available to such other
party. The provisions of this Section 17 shall survive termination of this
Distributorship Agreement for any reason.
18. LIMITATIONS OF WARRANTIES: EXCEPT AS SET FORTH HEREIN, JBA MAKES NO
WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, AND HEREBY
DISCLAIMS SPECIFICALLY ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE. ANY WARRANTY EXTENDED BY DISTRIBUTOR TO AN END USER,
PROSPECTIVE END USER OR ANY OTHER PERSON BEYOND THE SCOPE OF JBA'S EXPRESS
WARRANTIES is HEREBY DISCLAIMED.
19. LIMITATION OF LIABILITY: JBA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE,
FAILURE TO PERFORM, BREACH OR TERMINATION OF THIS DISTRIBUTORSHIP AGREEMENT,
INCLUDING LOST PROFITS, LOST SALES OR OTHER ECONOMIC LOSS ARISING OUT OF THE
PERFORMANCE, FAILURE TO PERFORM, BREACH OR TERMINATION OF THIS DISTRIBUTORSHIP
AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE
CLAIM IS BASED IN CONTRACT, TORT OR OTHERWISE AND WHETHER OR NOT ANY LIMITATION
ON REMEDIES SET FORTH HEREIN IS RENDERED UNENFORCEABLE FOR ANY REASON. THIS
SECTION M SHALL SURVIVE TERMINATION OF THIS DISTRIBUTORSHIP AGREEMENT FOR
ANY REASON.
20. NOTICES: All notices, consents or approvals required to be given pursuant to
this Distributorship Agreement and all correspondence relating to the terms or
performance of this Distributorship Agreement shall be in the English language
and shall be sent to the parties' addresses as set forth on page 1 of this
Distributorship Agreement. Notices, consents, approvals and other correspondence
shall be deemed given: (a) if mailed, when deposited in the United States Mail
with all first-class postage due thereon fully prepaid; (b) if delivered by
messenger or courier, at the time of delivery; (c) if sent by certified mail,
upon the day following the second day of postage; (d) if sent by telecopier,
upon the electronic confirmation of receipt by the addressee; or (e) if sent by
overnight courier, on the next business day. Either party may change its address
by giving written notice of such change to the other party.
21. APPLICABLE LAW: This Distributorship Agreement, all of the terms, provisions
and conditions of this Distributorship Agreement, all questions or issues of
construction, validity and performance under this Distributorship Agreement, and
any dispute or claim arising out of or relating to
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this Distributorship Agreement or breach hereof or the relationship between
Distributor and JBA shall be governed by the laws of the State of New Jersey
applicable to contracts made and to be wholly performed in that State, without
regard to conflicts of law rules.
22. DISPUTES AND ARBITRATION: Any and all disputes or claims arising out of or
relating to this Distributorship Agreement or breach hereof or the relationship
between Distributor and JBA shall be resolved and/or settled exclusively by
binding arbitration conducted in the State of New Jersey before a board of three
(3) arbitrators nominated by the American Arbitration Association and accepted
by the parties. Such arbitration shall be conducted in accordance with the
commercial arbitration rules then in effect of the American Arbitration
Association. Any award entered by the arbitrators shall be final, binding and
non-appealable and judgment may be entered by any party in accordance with
applicable law in any court of competent jurisdiction. The arbitrators shall be
required to apply and follow the applicable law in resolving any dispute
hereunder. This arbitration provision shall be specifically enforceable. The
arbitrators shall have the power to decide all disputes, except those involving
claims for equitable relief.
23. ASSIGNMENT OF RIGHTS: Distributor shall not, and shall not be entitled to,
assign or transfer any of the rights granted by, or arising under or in respect
of, this Distributorship Agreement to any other Person, or to delegate or
subcontract the performance of any of its obligations or duties under or in
respect of this Distributorship Agreement whether by agreement, operation of law
or otherwise, or to appoint any agent, subcontractor or consultant to perform
any such obligation or duty without the prior written consent of JBA. Any
attempted assignment or delegation made without such prior written consent shall
be deemed null, void and of no legal force or effect whatsoever.
24. BINDING EFFECT: On and after the Effective Date of this Distributorship
Agreement, this Distributorship Agreement shall be deemed binding upon and inure
to the benefit of the parties, their respective personal representatives, and
permitted successors and assigns.
25. FORCE MAJEURE: JBA shall not be liable or deemed in default for any delay or
failure in performance or any breach of its obligations under, or in respect of,
this Distributorship Agreement resulting directly or indirectly, in whole or in
part, from any cause or causes beyond JBA's reasonable control, including acts
of God, accidents, fire, earthquake, calamity, windstorm, flood, strikes or
labor disputes (of its own or other's employees), war or national emergency,
insurrection, riot or civil commotion, embargoes, material or container
shortages, delays in transportation, inability to obtain export permits,
supplies, raw materials, Products, parts or components on terms reasonably
acceptable to JBA, or requirements or regulations of any civil or military
authority ("an Event of Force Majeure"). JBA hereby agrees to give notice to
Distributor as soon as practicable upon becoming aware of an Event of Force
Majeure. In such event, JBA's performance of any such obligation or duty shall
be suspended for such period as JBA is unable to perform such obligation or
duty. During the suspension of JBA's performance,
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JBA may, at its election, offer to provide Distributor substituted performance,
subject to Distributor's acceptance thereof together with Distributor's
agreement to pay all actual increases in cost or expense necessary to provide
such substituted performance.
26. WAIVER: The failure of either party to require strict compliance by the
other with the terms and conditions of this Distributorship Agreement shall not
be construed as a waiver of such provision or of any other provisions, or of the
right of such party thereafter to enforce any term, covenant or provision of
this Distributorship Agreement. The waiver by either party of a breach or
default of any of the provisions of this Distributorship Agreement by the other
party shall not be effective unless in writing, and shall not be construed as a
waiver of any succeeding or other breach of any other provisions. No delay or
omission on the part of either party to exercise or avail itself of any right,
power, or privilege that it has or may have hereunder shall operate as a waiver
of any breach or default by the other party.
27. ENTIRE AGREEMENT: This Distributorship Agreement, including the schedules
and agreements expressly referred to herein, constitutes the entire agreement
between the parties governing the matters described herein and shall be
construed to supersede and replace all previous oral and written
representations, warranties and agreements, express or implied, related to the
subject matter hereof and to have fully integrated all representations,
warranties and agreements concerning the subject matter made by either party or
its authorized representative prior to the Effective Date hereof. JBA shall not
be liable to Distributor for loss arising from or in connection with any
representations, agreements, statements, or undertakings made prior to the
Effective Date of this Distributorship Agreement other than those
representations, agreements, statements and undertakings expressly set forth in
this Distributorship Agreement.
28. INVALIDITY AND SEVERABILITY: The provisions of this Distributorship
Agreement obligate Distributor and JBA only to the extent that such provisions
are lawful. If any provision of this Distributorship Agreement shall be found to
be invalid or unenforceable, the invalidity or unenforceability of such
provision shall not affect the other provisions of this Distributorship
Agreement and all provisions not affected by such invalidity or unenforceability
shall remain in full force and effect. The parties hereby agree to attempt to
substitute for any invalid or unenforceable provision a valid or enforceable
provision which achieves to the greatest extent possible the economic, legal and
commercial objectives of the invalid or unenforceable provision.
29. HEADINGS: The headings appearing before certain sections of this
Distributorship Agreement exist merely to facilitate the reading of this
Distributorship Agreement, and shall not be construed to limit, expand or
otherwise affect the intent or meaning of the following text.
30. CONFLICT: In the event of a conflict between any provision found in the body
of this Distributorship Agreement and any provision found in any attached
Schedule, the applicable Schedule shall control, but only to the extent
necessary to resolve the conflict and
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only as to those matters within the subject matter of the applicable Schedule.
31. AUDIT RIGHT: Upon prior notice by JBA to Distributor, JBA and its authorized
representatives shall have the right to audit the books and records of
Distributor, including a review of all Software License and Support Agreements
entered into by Distributor hereunder and all documentation and correspondence
relating thereto. Such audit shall be conducted during normal business hours.
Distributor agrees to cooperate with JBA in all reasonable respects in
connection therewith.
32. MULTIPLE ORIGINALS: This Distributorship Agreement may be executed in
multiple counterparts, each of which shall be deemed an original hereof.
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SCHEDULE A
DISTRIBUTOR'S NON-EXCLUSIVE TERRITORY
The Distributor's territory shall consist of the following geographic
area(s):
Colombia
The Products covered by the Distributorship Agreement shall be limited
to the following:
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CUSTOMER SERVICE & ADVANCED PRODUCTS PRODUCTION
LOGISTICS Telesales Product Definition Management
Advanced Sales Order Processing Warehouse Management Production Order Control
Inventory Management Advanced Customer Scheduling (incl. Master Production Scheduling
Sales Analysis Advanced Shipping) Material Requirements Planning
Purchase Management Transport Planning Capacity Planning
Purchase Requisition Configurator Production Support
Forecasting Quality Management (AS/400 only) Product Definition Mgmt. - Advanced
Distribution Requirements Planning Service Management (includes Remote (Process/Repetitive)
Vendor Scheduling (includes Communications) Production Schedule Control
Advanced Receiving) Workshop Management (Repetitive)
Customer Returns Job Management
EDI Application Interface
--------------------------------------------------------------------------------------------------------------------------
FINANCIAL VERTICAL PRODUCTS SYSTEM PRODUCT
Accounts Payable Style Distribution System Manager
Accounts Receivable Style Production --------------------------------------
Advanced General Ledger (incl. Drinks Distribution TECHNOLOGY PRODUCTS
(RW) Financial Manager) Bonded Warehousing Screen Designer - (sold in five (5)
Cash Management Catchweight (Food) seat increments)
Advanced Financial Integrator Constructor - Scheduler
Constructor - Activity Processing
Constructor - Method Processing
Enterprise Activity Modeler
JBA Explorer
AIMS Tools
--------------------------------------------------------------------------------------------------------------------------
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SCHEDULE B
SALES TARGETS AND JBA COMMISSION/FEE POLICIES
I. Primary Sales Targets
---------------------
Period Covered Sales Target
-------------- ------------
July 1, 1998 - December 31, 1998 US $ 500,000
January 1, 1999 - December 31, 1999 US $ 1,000,000
II. Fees/Commissions
----------------
Software Product Commission/Fee Rate
---------------- -------------------
System 21 40% of license fees*
Support
-------
Annual Maintenance 50% of maintenance fees**
----------
*Based upon amounts actually received by JBA and calculated for purposes
hereof in U.S. dollars.
**Based upon amounts actually received by JBA and calculated for purposes
hereof, as provided hereafter, in U.S. dollars. If the annual maintenance
agreement is a five year agreement, Distributor shall receive the percentage of
the fees received set forth above, pro rated over five years, with two-fifths of
the fees paid in year one, and one-fifth paid in each of years three, four and
five. If the annual maintenance agreement is a three year agreement, Distributor
shall receive the percentage of the fees received set forth above, pro rated
over three years, with one third of the fee paid in each of year one, two and
three. These fees are payable only during periods in which Distributor is
providing first line support of such End User pursuant to the terms hereof and
is not in breach of any term or condition of the Distributorship Agreement.
SCHEDULE C
DISTRIBUTOR COMMITTED RESOURCES
I. Personnel:
Distributor shall have and continuously employ during the term hereof
in the Territory such number of executive, pre-sales, sales, post-sales and
hotline support personnel dedicated exclusively to the duties and
responsibilities set forth under the Distributorship Agreement in respect of the
Products as may be necessary or required to perform the duties and
responsibilities of Distributor but not less than 15 Persons.
II. Demonstration Facility:
Distributor shall have and continuously maintain during the term hereof
a demonstration facility in the Territory for the demonstration of Products and
training of End Users, such facility to be reasonably acceptable to JBA, but at
a minimum such facility shall have one or more central processing units capable
of running the software Products in a demonstration, training and testing
environment, network computer demonstration and training work stations,
projectors and related projection equipment, chairs, keyboards and other
equipment and amenities customarily used or made available in the industry
generally for an executive level software demonstration facility. The
demonstration facility computers shall be configured with JBA tools and running
JBA applications, as localized, on an AS/400 or other hardware used or being
considered for use by End Users and prospective End Users in the Territory.
III. Training:
Distributor shall make its personnel available for Certification at
reasonable times and shall otherwise be responsible for assuring that its
employees are properly trained in the marketing, use, licensing, sales and
servicing of the Products in the Territory.
IV. Hotline Support:
Distributor shall establish and maintain a hotline support system
staffed by trained personnel to provide first line support and maintenance to
End Users in the Territory. Such support shall include telephone or written
consultation during normal business hours in the Territory in connection with
the installation, implementation and use of the Products using all standard help
tools made available by JBA from time to time. Distributor shall keep records of
all End User support system inquiries and the resolution of the problem
identified. Copies of such reports shall be forwarded to JBA quarterly.
V. Local Marketing Commitment:
Distributor shall expend an amount equal to two percent (2%) of
Distributor's Primary Sales Target for each year during the term hereof on local
marketing and advertisement of the Products in the Territory. Such marketing
resources shall be expended by Distributor in the following areas (allocated as
determined by Distributor but subject to audit and confirmation by JBA): print
and other media advertisements; seminars; prospect mailings; trade shows and
expositions; and other similar endeavors to market and promote the Products in
the Territory.
KEY DISTRIBUTOR ADDENDUM
This Key Distributor Addendum ("Addendum") is executed by the parties
below as an amendment and supplement to the Distributorship Agreement between
the parties. Capitalized terms used in this Addendum and not defined herein
shall have the meanings given to such terms in the Distributorship Agreement.
1. JBA hereby designates Distributor as a "Key Distributor" for the
term of the Distributorship Agreement, unless earlier terminated by JBA in its
discretion by notice to Distributor. Distributor hereby accepts the designation,
and the duties and responsibilities set forth herein, as a Key Distributor of
JBA in the Territory.
2. In addition to the obligations of Distributor as set forth in the
Distributorship Agreement, the Key Distributor shall be further responsible for
the "localization" of JBA Products in the Territory at Distributor's expense.
For purposes of the Distributorship Agreement and this Addendum, the term
"localization" shall mean modifying, customizing and/or adapting designated JBA
Products to meet all local fiscal and other requirements of the Territory.
3. JBA shall provide assistance as reasonably requested in the Key
Distributor's localization of such Products. Upon JBA's acceptance, in its
discretion, of such Products as localized, and in consideration of Distributor's
localization services, Distributor shall be entitled to an additional commission
of ten percent (10%) on license fees received in respect of all such Products
licensed in the Territory for two (2) years after the acceptance date, whether
or not any such transaction was consummated by Distributor or any other JBA
distributor authorized to do business in the Territory.
4. JBA shall be the exclusive owner of all software and associated
documentation for all Products developed by Distributor as a Key Distributor in
accordance with the terms hereof. All source code for software developed by the
Key Distributor shall be provided to JBA as a condition to JBA's acceptance of
any localized Product.
5. Upon termination or expiration of Distributor's status as a Key
Distributor, JBA shall be entitled to appoint one or more Key Distributors in
the Territory.
6. All other terms, conditions and provisions of the Distributorship
Agreement shall remain in full force and effect, except as amended and
supplemental hereby.
IN WITNESS WHEREOF, the parties have executed this Addendum, through
their duly authorized representatives, as of the date set forth below.
JBA INTERNATIONAL, INC. DISTRIBUTOR
By: ▇▇▇▇ ▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Title: Vice President Title: Gerente General