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EXHIBIT 10.12
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
TECH DATA CORPORATION
AND
XEROX IMAGING SYSTEMS, INC.
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SOFTWARE DISTRIBUTION AGREEMENT
THIS SOFTWARE DISTRIBUTION AGREEMENT, (Agreement) dated this 26th day of
April, 1995 (the "Effective Date"), between TECH DATA CORPORATION, a Florida
corporation ("Tech Data"), with its principle place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and XEROX IMAGING SYSTEMS INC., a Delaware
corporation ("XEROX IMAGING") with its principle place of business at ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Tech Data desires to purchase certain Products from XEROX
IMAGING from time to time; and
WHEREAS, XEROX IMAGING desires to sell certain Products to Tech Data in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, XEROX IMAGING desires to appoint Tech Data as its non-exclusive
distributor to market Products within the territory defined below;
NOW, THEREFORE, in consideration of the mutual premises herein contained
and other good and valuable consideration, Tech Data and XEROX IMAGING hereby
agree as follows:
ARTICLE I. TERM OF AGREEMENT
1.1 Term of Agreement. During the term of this Agreement, XEROX IMAGING will
provide to Tech Data the Products set forth in Purchase Orders (as
defined herein) in accordance with the terms and conditions set forth in
this Agreement. The term of this Agreement shall commence on the
Effective Date and, unless terminated by either party as set forth in
this Agreement, shall remain in full force and effect for a term of one
(1) year, and may be renewed for successive one (1) year terms upon
written confirmation of both parties.
1.2 Definitions. The following definitions shall apply to this Agreement.
(a) "Applicable Specification" shall mean the functional
performance, operational and compatibility characteristics of a
Product agreed upon in writing by the parties or, in the absence
of an agreement, as described in applicable Documentation.
(b) "Documentation" shall mean user manuals, training materials,
product descriptions and specifications, technical manuals,
license agreements, supporting materials and other printed
information relating to the Products, whether distributed in
print, electronic, or video format, in effect as of the date of
the applicable Purchase Order and incorporated therein by
reference.
(c) "Products" shall mean, individually or collectively the
sealed software packages comprised of the computer programs
encoded on software diskettes in form generally released by XEROX
IMAGING, listed in and more fully described in Exhibit A attached
and other computers or materials that may be developed and/or
licensed and sold by XEROX IMAGING for use in connection with
computer programs.
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(d) "Update" shall mean revised versions of the Product which
include any alterations, changes, enhancements, error
corrections, modifications or other revisions to the Product
which alter or improve the Products or revisions thereof,
provided that the term "Update" shall be deemed to include only
new version of the Products which are marketed with a change to
the number or letter to the right of the decimal in the version
number (for example Version 2.1, 2.2A or 2.25)
(e) "New Release" shall mean Products marketed with a change to
the number or letter to the left of the decimal in the version
number (for example 3.0 or 4.0) or Products which have terms
appended to their name such as "II" "Plus" or the like.
(f) "Territory shall mean the United States of America and its
territories and possessions, Canada and Latin America.
(g) "Customers" of Tech Data shall include dealers, resellers,
commercial customers, value added resellers and other similar
customers, but shall not include End Users unless specifically
set forth.
(h) "End Users" shall mean final retail purchasers or licensees
who have acquired Products for their own use and not for resale,
remarketing or redistribution, unless specifically set forth in a
separate agreement.
(i) "Services" means any warranty, maintenance, advertising,
marketing or technical support and any other services performed
or to be performed by XEROX IMAGING.
1.3 License. XEROX IMAGING hereby grants to Tech Data and Tech Data accepts
a non-exclusive right and license to distribute XEROX IMAGING software
products and third party software products licensed to XEROX IMAGING for
re-distribution within the territory as herein defined, together with
any Updates and enhancements thereto (collectively referred to as
"Software"). This license includes the right to (i) order, use, posses
and distribute quantities of Software, (ii) grant a sublicense to
resellers to license Software directly to End Users; and (iii)
sublicense Software to resellers solely for the resellers use on a
demonstration unit. XEROX IMAGING reserves the right to appoint other
authorized distributors and grant other licenses. Tech Data will use its
best efforts to promote sales of the Products.
ARTICLE II. PURCHASE ORDERS
2.1 Product Availability. From time to time or at Tech Data's request, XEROX
IMAGING shall inform Tech Data of Products available from XEROX IMAGING
including, but not limited to, replacement Products, New Releases,
enhancements or versions of existing Products. XEROX IMAGING shall
notify Tech Data at least thirty (30) days prior to the date any new
Product is to be introduced and shall make such Product available to
Tech Data for distribution no later than the date it is first introduced
in the market place.
If for any reason XEROX IMAGING Imagining's production is not on
schedule, XEROX IMAGING agrees to allocate Product to Tech Data's orders
based upon a percentage equal to the same percentage as XEROX IMAGING
Imagining's like customers purchasing like volume of same Products.
2.2 Purchase Orders. Tech Data may purchase and XEROX IMAGING shall sell to
Tech Data as follows:
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(a) Purchase Orders for Product shall be placed by Tech Data
either in writing, by fax or electronically transferred or if
placed orally, shall be confirmed in writing within ten (10)
business days.
(b) Each Purchase Order may include other terms and conditions
which are consistent with the terms and conditions of this
Agreement or which are necessary to place a Purchase Order, such
as billing and shipping information, required delivery dates,
delivery locations, and the purchase price or charges for
Products, including any discounts or adjustments for special
marketing programs.
(c) A Purchase Order shall be deemed accepted by XEROX IMAGING
unless XEROX IMAGING notifies Tech Data in writing within five
(5) business days after receiving the Purchase Order that XEROX
IMAGING does not accept the Purchase Order.
(d) XEROX IMAGING shall accept Purchase Orders on C.O.D. basis
from Tech Data for additional Products which Tech Data is
contractually obligated to furnish to its customers and does not
have in its inventory upon the termination of this Agreement;
provided Tech Data notifies XEROX IMAGING of any and all such
transactions in writing within sixty (60) days of the termination
date.
(e) This agreement shall not obligate Tech Data to purchase any
Products or services except as specifically set forth in a
written Purchase Order.
2.3 Purchase Order Alterations or Cancellations. Prior to shipment of
Products, XEROX IMAGING shall accept an alteration or cancellation of a
Purchase Order in order to: (i) change a location for delivery, (ii)
modify the quantity or type of Products to be delivered or (iii) correct
typographical or clerical errors.
2.4 Evaluation or Demonstration Purchase Orders. Tech Data may issue
Purchase Orders in order to evaluate a reasonable quantity of Products
or for use as demonstration Products at no charge. After evaluation or
when such Products are no longer needed for demonstration, Tech Data
shall have the option to purchase the Products or to return such
Products to XEROX IMAGING at Tech Data's expense.
ARTICLE III. DELIVERY AND
ACCEPTANCE OF PRODUCTS
3.1 Subsidiaries. XEROX IMAGING understands and acknowledges that Tech Data
may obtain Products in accordance with this Agreement for the benefit of
subsidiaries of Tech Data. Subsidiaries of Tech Data shall be entitled
to obtain Products directly from XEROX IMAGING pursuant to this
Agreement.
3.2 Acceptance of Products. Tech Data shall, after a reasonable time to
inspect each shipment, accept each Product on the date (the "Acceptance
Date") when such Products and all necessary documentation are delivered
to Tech Data in accordance with the Purchase Order and the Product
specifications. Any Products not ordered or not otherwise in accordance
with the Purchase Order, such as mis-shipments or overshipments will be
returned to XEROX IMAGING at XEROX IMAGING Imagining's expense
(including without limitation costs of shipment or storage) and shall
promptly refund to Tech Data all monies paid in respect to such
Products. Tech Data shall not be required to accept partial shipment
unless Tech Data agrees prior to shipment.
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Tech Data shall have the ability to return for credit products which
have boxes that are or become damaged, unless such damage was caused by
Tech Data or for which Tech Data can be reimbursed by their insurance
carrier. An offsetting Purchase Order will be placed for all bad box
returns. In addition, XEROX IMAGING will supply to Tech Data, at no
charge, any and all missing material(s).
3.3 Defective Products. In the event any Products are received in a
defective condition or not in accordance with XEROX IMAGING Imagining's
applicable Specifications or the Documentation relating to such
Products, Tech Data may return the Products for full credit. Products
shall be deemed defective if the Product, or any portion of the Product,
fails to operate properly on initial "burn in", boot, or use as
applicable. Tech Data shall have the right to return any such Products
that are returned to Tech Data from its customers or End Users within
sixty (60) days of the Products' initial delivery date to the End User.
3.4 Transportation of Products. FOB Destination. XEROX IMAGING shall deliver
the Products to Tech Data at the location shown and on the delivery date
set forth in the applicable Purchase Order or as otherwise agreed upon
by the parties. Charges for transportation of the Products shall be paid
by Tech Data . XEROX IMAGING shall use only those common carriers
preapproved by Tech Data or listed in Tech Data's published routing
instructions, unless prior written approval of Tech Data is received.
Title to Products remains with XEROX IMAGING at all times. All risk of
loss or damage to the Products shall be borne by XEROX IMAGING until
delivery of such Products to the Tech Data warehouse or the location
specified in the appropriate Purchase Order.
XEROX IMAGING shall bear all costs of shipping and risk of loss of
in-warranty Products to XEROX IMAGING's location and back to Tech Data
or Tech Data's customer.
3.5 Resale of Products by Tech Data. During the term of this Agreement, Tech
Data may market, promote, distribute and resell Products to customers of
Tech Data, either directly or through its subsidiaries, in accordance
with the following terms and conditions:
(a) XEROX IMAGING shall extend to Tech Data and each customer of
Tech Data the same warranties and indemnifications, with respect
to Products purchased and resold hereunder as XEROX IMAGING
extends to its End User customers. The term of warranties and
indemnities extended by XEROX IMAGING to an End User shall
commence upon delivery of the Product to the End User.
(b) XEROX IMAGING shall make available at no charge to Tech Data
and the customers of Tech Data all technical and sales training,
technical support, marketing support, advertising material and
other services related to the Products that are currently offered
or that may be offered by XEROX IMAGING. XEROX IMAGING also
agrees to provide Tech Data a telephone support representative at
no charge during Tech Data's normal business hours.
(c) Tech Data is hereby authorized to use trademarks and trade
names of XEROX IMAGING and third parties used in connection with
the Products, advertising, promoting or distributing the
Products. Tech Data recognizes XEROX IMAGING or other third
parties may have rights or ownership of certain trademarks, trade
names and patents associated with the Products. Tech Data will
act consistently with such rights, and Tech Data shall comply
with any reasonable, written guidelines when provided by XEROX
IMAGING or third parties relating to such trademark or trade name
usage. Tech Data
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will notify XEROX IMAGING of any infringement of which Tech Data
has actual knowledge. Tech Data shall discontinue use of XEROX
IMAGING Imagines' trademarks or trade names upon termination of
this agreement, except as may be needed to sell or liquidate any
final inventories of Product.
(d) Tech Data is free to determine its own resales prices for the
Products. Although Vendor may publish suggested list prices,
these are suggestions only and Tech Data shall be free to
determine the actual resale prices at which Products will be
distributed to its resellers. No employee or representative of
XEROX IMAGING or anyone else associated or affiliated with XEROX
IMAGING has any authority to dictate to Tech Data what its resale
prices for Products must be or to inhibit in any way Tech Data's
pricing discretion with respect to such Products.
(e) XEROX IMAGING shall clearly ▇▇▇▇ each unit package with the
serial number, product description and machine readable bar code
(employing UPC or ABCD industry standard bar code). Failure to do
so shall result in Tech Data deducting one-half percent (1/2%)
from invoice to offset the resultant administrative costs to Tech
Data.
3.6 Inventory Adjustment. Open ended inventory adjustment will be accepted
during the initial six (6) months of the Agreement. After the initial
six (6) month period XEROX IMAGING agrees to accept, on a monthly basis,
a shipment of Product in sealed cartons returned by Tech Data and to
credit Tech Data's account in the amount of the net price paid by Tech
Data therefore (the "Return Credit"), provided that Tech Data places an
offsetting Purchase Order.
In addition, Tech Data shall have the right to return for full credit,
without limitation as to the dollar amount, all Products that become
obsolete, that XEROX IMAGING discontinues or are removed from XEROX
IMAGING Imagining's current price list or are upgraded; provided Tech
Data returns such Products within sixty (60) days after Tech Data
receives written notice that such Products are obsolete, discontinued or
are removed from XEROX IMAGING Imagining's price list.
3.7 Time of Performance. Time is hereby expressly made of the essence with
respect to each and every term and provision of this agreement.
ARTICLE IV. WARRANTIES,
INDEMNITIES AND LIABILITIES
4.1 Warranty. XEROX IMAGING hereby represents and warrants that it has not
entered into any agreements or commitments which are inconsistent with
or in conflict with the rights granted to Tech Data herein; the Products
shall be free and clear of all liens and encumbrances; Tech Data and its
customers and End Users shall be entitled to use the Products without
disturbance; XEROX IMAGING warrants that all Software media shall be
free from defects in material and workmanship for a period of ninety
(90) days from the date of first use or installation by an End-User.
XEROX IMAGING sole obligation to the END-User shall be to replace any
Software media that proves defective during the warranty period. If such
Product is returned directly to Tech Data by a Customer or End-User,
Tech Data may then return it to XEROX IMAGING for credit (the actual
price paid, minus any price protection adjustments). XEROX IMAGING shall
supply Tech Data, at no additional charge, all services, parts or
replacement Products necessary for XEROX IMAGING to comply with its
Product warranties. XEROX IMAGING agrees that Tech Data shall be
entitled to pass through to customers of Tech Data and End Users of the
Products all warranties granted by XEROX IMAGING. XEROX IMAGING
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represents that the Product warranties shall also include those set
forth in literature, applicable specifications, documentation,
advertising and printed material distributed by XEROX IMAGING. XEROX
IMAGING shall indemnify and hold Tech Data, its subsidiaries, customers
and their respective successors, officers, directors, employees and
agents harmless from and against all third party actions, claims,
losses, damages, liabilities, awards, costs and expenses (including a
reasonable attorney's fee) resulting from or arising out of any breach
or claimed breach of the foregoing warranties.
The express warranties set forth above specifically exclude and do not
apply to defects caused: (i) through no fault of XEROX IMAGING during
shipment from Tech Data to Customer; (ii) by the use or operation of the
Software in an application or environment other than that intended or
recommended by XEROX IMAGING, (iii) by modifications or alterations made
to the Software by Distributor or any third party.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, XEROX IMAGING MAKES NO OTHER
WARRANTIES TO DISTRIBUTOR AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE.
4.2 Proprietary Rights Indemnification. XEROX IMAGING hereby represents and
warrants that XEROX IMAGING has all right, title, ownership interest
and/or marketing rights necessary to provide the Products to Tech Data,
and Products and their sale and use hereunder do not infringe upon any
copyright, patent, trade secret or other proprietary or intellectual
property right of any third party, and that there are no suits or
proceeding, pending or threatened alleging any such infringement. XEROX
IMAGING shall indemnify and hold Tech Data, Tech Data's related and/or
subsidiary companies, Tech Data's customers and their respective
successors, officers, directors, employees and agents harmless from and
against any and all actions, claims, losses, damages, liabilities,
awards, costs and expenses, including but not limited to XEROX IMAGING
Imagining's manufacture, sale, offering for sale, distribution,
promotion or advertising of the Products supplied under this Agreement
(including attorney's fees) which they or any of them incur or become
obligated to pay resulting from or arising out of any breach or claimed
breach of the foregoing warranty, or by reason of any acts that may be
committed suffered or permitted by XEROX IMAGING. XEROX IMAGING shall
defend and settle, at its expense, all suits or proceedings arising
therefrom. Tech Data shall inform XEROX IMAGING of any such suit or
proceeding against Tech Data and shall have the right to participate in
the defense of any such suit or proceeding at Tech Data's expense and
through counsel of Tech Data's choosing. In the event an injunction is
sought or obtained against the use of a Product , XEROX IMAGING shall
within ninety (90) days of receipt of notice, at its option and expense,
either (i) procure for Tech Data, its customers and Product End Users
the right to continue to use the infringing Product as set forth in this
Agreement, or (ii) replace, to the extent Products are available, or
modify the infringing Product to make its use non-infringing while being
capable of performing the same function without degradation of
performance. XEROX IMAGING shall have no liability under this Section
for any infringement based on the use of any equipment or software with
any other equipment or software reasonably intended to be used with the
Product, if the equipment or software is used in a manner for which it
was not designed, or if the equipment or software is used in an
infringing process. XEROX IMAGING Imagines obligations hereunder shall
survive termination of this Agreement.
4.3 Cross Indemnification. In the event any act or omission of either party
or its employees, servants, agents or representatives causes or results
in (i) loss, damage to or destruction of property of the other party or
third parties, and/or (ii) death or injury to persons including, but not
limited to, employees or invitees of either party, then such party shall
indemnify, defend and hold
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the other party harmless from and against any and all claims, actions,
damages, demands, liabilities, costs and expenses, including reasonable
attorneys' fees and expenses, resulting therefrom. The indemnifying
party shall pay or reimburse the other party promptly for all such loss,
damage, destruction, death or injury.
4.4 Insurance.
(a) The parties shall be responsible for providing ▇▇▇▇▇▇▇'▇
Compensation insurance in the statutory amounts required by the
applicable state laws.
(b) Without in any way limiting XEROX IMAGING Imagining's
indemnification obligation as set forth in this Agreement, XEROX IMAGING
shall maintain Commercial General Liability and/or Comprehensive General
Liability Insurance in such amounts as is reasonably satisfactory to
Tech Data. Either policy form should contain the following coverage's:
Personal and Advertising Injury, Broad Form Property Damage, Products
and Completed Operations, Contractual Liability, employees as Insured
and Fire Legal Liability.
(c) XEROX IMAGING will provide evidence of the existence of insurance
coverage's referred to in this Section by certificates of insurance
which should also provide for at least thirty (30) days notice of
cancellation, non-renewal or material change of coverage to Tech Data.
4.5 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING LOSS OF PROFITS,
LOSS OF BUSINESS OR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF THE
OTHER PARTY.
4.6 Unauthorized Representations. Tech Data shall have no authority to alter
or extend any of the warranties of XEROX IMAGING expressly contained or
referred to in this Agreement without prior approval of XEROX IMAGING.
4.7 XEROX IMAGING agrees to provide Tech Data, upon signing this Agreement
and at any time thereafter that XEROX IMAGING modifies or adds products
distributed by Tech Data, with the Export Control Classification Number
(ECCN) for each of XEROX IMAGING Imagining's Products, and information
as to whether or not any of such Products are classified under the U.S.
Munitions List.
4.8 Disclaimer of Warranties. XEROX IMAGING has made expressed warranties in
this Agreement and in documentation, promotional and advertising
materials. EXCEPT AS SET FORTH HEREIN OR THEREIN, XEROX IMAGING
DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS.
ARTICLE V. PAYMENT TO XEROX IMAGING
5.1 Charges, Prices and Fees for Products. Charges, prices, quantities and
discounts, if any, for Products shall be determined as set forth in
Exhibit A, or as otherwise agreed upon by the parties, and may be
confirmed at the time or order. In no event shall charges exceed XEROX
IMAGING Imagining's then current established Charges. XEROX IMAGING
shall have the right to increase prices from time to time, upon written
notice to Tech Data not less than sixty (60) days prior to the effective
date of such increase. All orders placed prior to the effective date of
the increase, for shipment within sixty (60) days after the effective
date, shall be at the old price. Tech Data shall not be bound by any of
XEROX IMAGING Imagining's suggested prices.
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5.2 Most Favored Pricing and Terms. XEROX IMAGING represents that the prices
charged and the terms offered to Tech Data are and will be at least as
low as those charged or offered by XEROX IMAGING to any of its other
like distributors. If XEROX IMAGING offers price discounts, promotional
discounts or other special prices to its other like distributors, Tech
Data shall also be entitled to participate and receive notice of the
same no later than other like distributors.
5.3 Payment. Except as otherwise set forth herein, any undisputed sum due to
XEROX IMAGING pursuant to this Agreement shall be payable as follows: 2%
prepay, 1%-15 net forty-five (45) days after the invoice receipt. XEROX
IMAGING shall invoice Tech Data no earlier than the applicable shipping
date for the Products covered by such invoice. The due date for payment
shall be extended during any time the parties have a bona fide dispute
concerning such payment. Notwithstanding anything herein to the
contrary, for the initial order only, payment terms shall be net 90 days
and Tech Data may return any of the initial order for credit.
5.4 Taxes. Tech Data shall be responsible for franchise taxes, sales or use
taxes or shall provide XEROX IMAGING with an appropriate exemption
certificate. XEROX IMAGING shall be responsible for all other taxes,
assessments, permits and fees, however designated which are levied upon
this Agreement or the Products, except for taxes based upon Tech Data's
income. No taxes of any type shall be added to invoices without the
prior written approval of Tech Data.
5.5 Price Protection. XEROX IMAGING shall grant to Tech Data a retroactive
price credit for the full amount of any XEROX IMAGING price decrease on
all Products on order, in transit and in its inventory on the effective
date of such price decrease. Tech Data shall, within thirty (30) days
after receiving written notice of the effective date of the price
decrease, provide a list of all Products for which it claims a credit.
XEROX IMAGING shall have the right to a reasonable audit at XEROX
IMAGING Imagining's expense. All orders scheduled for shipment or in
transit to Tech Data at the time of notice of the price decrease shall
be adjusted to the decreased price.
5.6 Invoices. A "correct" invoice shall contain (i) XEROX IMAGING
Imagining's name and invoice date, (ii) the Purchase Order or other
authorizing document, (iii) separate descriptions, unit prices and
quantities of the Products actually delivered, (iv) credits (if
applicable), (v) shipping charges (vi) name (where applicable), title,
phone number and complete mailing address of responsible official to
whom payment is to be sent, and (vii) other substantiating documentation
or information as may reasonably be required by Tech Data from time to
time
5.7 Advertising Credit. XEROX IMAGING shall offer a three percent (3%) co-op
program and advertising credits and other promotional programs or
incentives to Tech Data as it offers its other distributors or
customers. Tech Data shall have the right at Tech Data's option, to
participate in such programs. XEROX IMAGING shall attach a copy of its
co-op program hereto. Tech Data shall provide XEROX IMAGING invoices for
the costs actually incurred by Tech Data for advertising and other
activities. Invoices provided hereunder shall be paid by XEROX IMAGING
within thirty (30) days after receipt or, at Tech Data's option, Tech
Data may deduct such amounts from any amounts due XEROX IMAGING
hereunder.
5.8 Vendor Reports. XEROX IMAGING shall, if requested, render monthly
reports to Tech Data setting forth the separate Products, dollars
invoiced for each Product, and total dollars invoiced to Tech Data for
the month, and such other information as Tech Data may reasonably
request.
5.9 Tech Data Reports. Tech Data shall, if requested, render monthly sales
out reports on diskette, in ASCII Comma Delimited Format. Information
provided will include: month and year sales activity occurred, internal
product number (assigned by Tech Data), written description, country,
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State and zip code of resellers location, unit cost (distributors cost
at quantity 1), quantity and extended cost (cost times quantity). A
monthly inventory report, will be provided on a paper format once a
month. The reports will be delivered to the XEROX IMAGING at different
times in the month.
5.10 XEROX IMAGING agrees that for the term of this Agreement, XEROX IMAGING
shall provide upon Tech Data's request an annual report
ARTICLE VI. TERMINATION
6.1 Termination. Either party may terminate this agreement, with or without
cause, upon giving the other party sixty (60) days prior written notice.
In the event that either party materially or repeatedly defaults in the
performance of any of its duties or obligations set forth in this
Agreement, and such default is not substantially cured within thirty
(30) days after written notice is given to the defaulting party
specifying the default, then the party not in default may, by giving
written notice thereof to the defaulting party, terminate this Agreement
or the applicable Purchase Order relating to such default as of the date
specified in such notice of termination.
6.2 Termination for Insolvency or Bankruptcy. Either party may immediately
terminate this Agreement and any Purchase Order by giving written notice
to the other party in the event of (i) the liquidation or insolvency of
the other party, (ii) the appointment of a receiver or similar officer
for the other party, (iii) an assignment by the other party for the
benefit of all or substantially all of its creditors, (iv) entry by the
other party into an agreement for the composition, extension, or
readjustment of all or substantially all of its obligations, or (v) the
filing of a meritorious petition in bankruptcy by or against the other
party under any bankruptcy or debtors' law for its relief or
reorganization
6.3 Rights Upon Termination. Termination of any Purchase Order or this
Agreement shall not affect XEROX IMAGING Imagining's right to be paid
for undisputed invoices for Products already shipped. The termination of
this Agreement shall not affect any of XEROX IMAGING Imagining's
warranties, indemnifications or obligations relating to returns, credits
or any other matters set forth in this agreement that are to survive
termination in order to carry out their intended purpose, all of which
shall survive this Agreement. Upon termination of this Agreement, Tech
Data shall discontinue holding itself out as a distributor of XEROX
IMAGING Imagining's Products. The expiration of the term of this
Agreement shall not affect the obligations of either party to the other
party pursuant to any Purchase Order previously forwarded to XEROX
IMAGING.
6.4 Repurchase of Products Upon Termination. Upon the effective date of
termination of this Agreement for any reason, XEROX IMAGING agrees to
repurchase the Products in Tech Data's inventory which have been
purchased within the previous 150 days. XEROX IMAGING will repurchase
the Products at the original net purchase price; provided that the
Products have been unopened and are in their original factory sealed
packages. Tech Data shall submit to XEROX IMAGING, within sixty (60)
days after termination, the quantity of Product that Tech Data wishes
XEROX IMAGING to repurchase. In such event XEROX IMAGING shall issue a
Return Material Authorization to Tech Data for all such Products;
provided, however, that XEROX IMAGING shall accept returned Products in
accordance with this Section absent a Return Material Authorization if
XEROX IMAGING fails to issue said Return Material Authorization within
two (2) business days of Tech Data's request. XEROX IMAGING shall credit
any outstanding balances owed to Tech Data and remit in the form of a
check to Tech Data the remaining dollar amount of the Product returned
within thirty (30) days of receipt of the Product.
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ARTICLE VII. MISCELLANEOUS
7.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be
binding on the parties and their respective successors and assigns, but
neither party shall have the power to assign this Agreement without the
prior written consent of the other party.
7.2 Counterparts. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one single agreement
between the parties.
7.3 Headings. The Article and Section headings used in this Agreement are
for reference and convenience only and shall not enter into the
interpretation hereof.
7.4 Relationship of Parties. Tech Data is performing pursuant to this
Agreement only as an independent contractor. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between Tech Data and XEROX IMAGING. Neither party shall act or
represent itself, directly or by implication, as an agent of the other
party.
7.5 Confidentiality. Each party acknowledges that in the course of
performance of its obligations pursuant to this Agreement, it may obtain
certain confidential and/or proprietary information. Each party hereby
agrees that all such information communicated to it by the other party,
and identified as confidential, whether before or after the effective
date, shall be and was received in strict confidence, shall be used only
for purposes of this Agreement, and shall not be disclosed without the
prior written consent of the other party, except as may be necessary by
reason of legal, accounting or regulatory requirements beyond either
party's reasonable control. The provisions of this Section shall survive
the term or termination of this Agreement for any reason.
7.6 Arbitration. Any disputes arising under this Agreement shall be
submitted to arbitration in accordance with such rules as the parties
jointly agree. If the parties are unable to agree on arbitration
procedures, arbitration shall be conducted where the respondent party is
headquartered, in accordance with the rules of the American Arbitration
Association. Any such award shall be final and binding upon both
parties.
7.7 Notices. Wherever one party is required or permitted to give notice to
the other pursuant to this Agreement, such notice shall be deemed given
when delivered in hand, by telex or cable, or when mailed by registered
or certified mail, return receipt requested, postage prepaid, and
addressed as follows:
In the case of XEROX IMAGING: In the Case of Tech Data:
----------------------------- ----------------------------
Xerox Corporation Tech Data Corporation
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇'▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Contracts Administrator Director of Operations
cc: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Lead Contracts Administrator
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective.
7.8 Force Majeure. The term "Force Majeure" shall be defined to include
fires or other casualties or accidents, acts of God, severe weather
conditions, strikes or labor disputes, war or other violence, or any
law, order, proclamation, regulation, ordinance, demand or requirement
of any governmental agency.
TECH DATA: PKC XEROX IMAGING: WSC
12
(a) A party whose performance is prevented, restricted or
interfered with by reason of a Force Majeure condition shall be
excused from such performance to the extent of such Force Majeure
condition so long as such party provides the other party with
prompt written notice describing the Force Majeure condition and
takes causes of nonperformance and immediately continues
performance whenever and to the extent such causes are removed.
(b) If, due to a Force Majeure condition, the scheduled time of
delivery or performance is or will be delayed for more than
thirty (30) days after the scheduled date, the party not relying
upon the Force Majeure condition may terminate, without liability
to the other party, any Purchase Order or portion thereof
covering the delayed Products.
7.9 Return Material Authorization Numbers. XEROX IMAGING is required to
issue a Return Material Authorization Number (RMA) to Tech Data within
forty-eight (48) hours of Tech Data's request; however, if the Return
Material Authorization is not received within two (2) business days,
XEROX IMAGING shall accept returned Products absent a Return Material
Authorization Number. The net purchase price, minus any adjustments of
such Products returned to XEROX IMAGING shall be credited to Tech Data's
account.
7.10 Credits to Tech Data. In the event any provisions of this Agreement or
any other agreement between Tech Data and XEROX IMAGING require that
XEROX IMAGING grant credits to Tech Data's account, and such credits are
not received within thirty (30) days then, all such credits shall become
effective immediately upon notice to XEROX IMAGING. In such event, Tech
Data shall be entitled to deduct any such credits from the next monies
owed to XEROX IMAGING. In the event credits exceed any balances owed by
Tech Data to XEROX IMAGING, then, upon Tech Data's request, XEROX
IMAGING shall issue a check payable to Tech Data within thirty (30) days
of such notice.
7.11 Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under
such provision, it being the intent and agreement of the parties that
this Agreement shall be deemed amended by modifying such provision, to
the extent necessary to make it legal and enforceable while preserving
its intent.
7.12 Waiver. A waiver by either of the parties of any covenants, conditions
or agreements to be performed by the other or any breach thereof shall
not be construed to be a waiver of any succeeding breach thereof or of
any other covenant, condition or agreement herein contained.
7.13 Remedies. All remedies set forth in this Agreement shall be cumulative
and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise, and may be enforced
concurrently or from time to time.
7.14 Survival of Terms. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration.
7.15 Nonexclusive Market and Purchase Rights. It is expressly understood and
agreed that this Agreement does not grant to XEROX IMAGING or Tech Data
an exclusive right to purchase or sell Products and shall not prevent
either party from developing or acquiring other vendors or customers or
competing Products.
TECH DATA: PKC XEROX IMAGING: WSC
13
7.16 Specifications and Drawing. XEROX IMAGING agrees to provide upon Tech
Data's request, at no charge to Tech Data, reasonable quantities as
requested by Tech Data of the following: (1) the specifications, (2)
published user instructions, manuals and other training materials, and
(3) current manuals covering installation, operation and complete
maintenance of the Products. Tech Data shall have the right to copy or
reproduce the foregoing materials for use in connection with Tech Data's
use or sale of the Products.
7.17 Entire Agreement. This Agreement, including any Exhibits and documents
referred to in this Agreement or attached hereto, constitutes the entire
and exclusive statement of Agreement between the parties with respect to
its subject matter and there are no oral or written representations,
understandings or agreements relating to this Agreement which are not
fully expressed herein.
7.18 Governing Law. This Agreement shall have Florida as its situs and shall
be governed by and construed in accordance with the laws of the State of
Florida.
7.19 International Business. XEROX IMAGING acknowledges that Tech Data may
desire to obtain Products or Systems for use in countries outside the
United States and its territories. The parties acknowledge that in such
case it may be necessary to enter into additional agreements between
XEROX IMAGING and Tech Data and/or the respective subsidiaries, agents,
distributors or subsidiaries authorized to conduct business in such
countries or to negotiate further terms and conditions to provide for
such right. The parties intend that any further agreements or terms and
conditions will be consistent with and based upon the applicable terms
and conditions of this Agreement, subject, however, to requirements of
local law and local business practice. All Products obtained pursuant to
this Section shall be deemed for purposes of calculating accumulated
purchases and any discounts set forth in this Agreement, to have been
obtained pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
XEROX IMAGING SYSTEMS, INC. TECH DATA CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- ----------------------
Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Sales Title: Senior Vice President
Product Marketing
Date: April 26, 1995 Date: May 11, 1995
TECH DATA: PKC XEROX IMAGING: WSC
14
CO-OP GUIDELINES
XEROX IMAGING SOFTWARE, INC.
To increase the effectiveness of advertising and sales promotions Tech Data has
developed the following advertising requirements:
HOW CO-OP IS EARNED:
- Co-op dollars will be at least 3% of the purchases made by Tech Data, net of
returns.
- Co-op dollars will be accrued on a monthly basis.
HOW CO-OP IS SPENT:
- Tech Data will be reimbursed for 100% of the cost for ads or promotions that
feature vendor products.
- Co-op dollars will be used within the 12 months immediately following the
month in which they are earned.
HOW CO-OP IS CLAIMED:
- Claims for co-op will be submitted to vendor within 60 days of the event date.
- Claims for co-op will be submitted with a copy of vendor prior approval and
proof of performance.
- Payment must be remitted within 30 days of the claim date, or Tech Data
reserves the right to deduct from the next invoice.
CO-OP REPORTING:
- Vendor will submit a monthly co-op statement outlining (i) co-op earned, (ii)
co-op used and (iii) co-op claims paid.
Accepted:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, Sales
Date: April 26, 1995
15
EXHIBIT A
PRODUCT PRICE LIST
UNITED STATES AND CANADA ONLY - ENGLISH
--------------------------------------------------------------------------------------------------
Product Part Number List Discount Order Price Deduct from Net
price invoice payment
--------------------------------------------------------------------------------------------------
TextBridge for Windows ▇▇-▇▇▇▇▇-▇▇ $99 42% $57.42 5% $54.55
--------------------------------------------------------------------------------------------------
TextBridge for Mac and ▇▇-▇▇▇▇▇-▇▇ $99 42% $57.42 5% $54.55
PowerMac
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $349 40% $209.40 5% $198.93
Edition for Windows
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $199 20% $159.20 5% $151.24
Ed. Competitive Upgrade
--------------------------------------------------------------------------------------------------
CANADA - FRENCH SOFTWARE AND DOCUMENTATION ARE LOCALISED
--------------------------------------------------------------------------------------------------
Product Part Number List Discount Order Price Deduct from Net
price invoice payment
--------------------------------------------------------------------------------------------------
TextBridge for Windows* ▇▇-▇▇▇▇▇-▇▇ $149 50% $74.50 0% $74.50
--------------------------------------------------------------------------------------------------
TextBridge for Mac and ▇▇-▇▇▇▇▇-▇▇ $149 50% $74.50 0% $74.50
PowerMac *
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $549 50% $274.50 0% $274.50
Edition for Windows*
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $313 20% $250.40 0% $250.40
Ed. Competitive Upgrade
--------------------------------------------------------------------------------------------------
LATIN AMERICA - ENGLISH
--------------------------------------------------------------------------------------------------
Product Part Number List Discount Order Price Deduct from Net
price invoice payment
--------------------------------------------------------------------------------------------------
TextBridge for Windows* ▇▇-▇▇▇▇▇-▇▇ $149 50% $74.50 0% $74.50
--------------------------------------------------------------------------------------------------
TextBridge for Mac and ▇▇-▇▇▇▇▇-▇▇ $149 50% $74.50 0% $74.50
PowerMac*
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $549 50% $274.50 0% $274.50
Edition for Windows*
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $313 20% $250.40 0% $250.40
Ed. Competitive Upgrade
--------------------------------------------------------------------------------------------------
LATIN AMERICA - SPANISH SOFTWARE AND DOCUMENTATION ARE LOCALISED
--------------------------------------------------------------------------------------------------
Product Part Number List Discount Order Price Deduct from Net
price invoice payment
--------------------------------------------------------------------------------------------------
TextBridge for Windows* ▇▇-▇▇▇▇▇-▇▇ $149 50% $74.50 0% $74.50
--------------------------------------------------------------------------------------------------
TextBridge for Mac and ▇▇-▇▇▇▇▇-▇▇ $149 50% $74.50 0% $74.50
PowerMac *
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $549 50% $274.50 0% $274.50
Edition for Windows*
--------------------------------------------------------------------------------------------------
TextBridge Professional ▇▇-▇▇▇▇▇-▇▇ $313 20% $250.40 0% $250.40
Ed.
Competitive Upgrade
--------------------------------------------------------------------------------------------------
NOTES:
* These packages contain language packages for Spanish, Portuguese,
French, German, Italian, Dutch, Danish, Swedish, Norwegian, and Finnish.