EXHIBIT 10.1
CONFIDENTIAL
DISTRIBUTION AND FULFILLMENT AGREEMENT
--------------------------------------
This DISTRIBUTION AND FULFILLMENT AGREEMENT (the "Agreement") is
made as of Nov. 29, 1999 (the "Effective Date") by and between N-GEN
SOLUTIONS, a Colorado corporation, with its principal place of business
at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller"), and ▇▇▇▇▇▇
ENTERTAINMENT INC., a Tennessee corporation, with its principal place of
business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Distributor").
1. DEFINITIONS.
1.1 "Back Ordered Products" means Products that Distributor
does not have in stock in its shipping facilities at the time an
Order is submitted for them.
1.2 "Business Day" means a day on which Distributor regularly
conducts business, excluding holidays.
1.3 "Customer" means a person in the United States, its
territories and protectorates, who orders Products from Seller's
online retail store.
1.4 "Damaged Products" means Products shipped by Distributor
which are damaged during shipment to Customers to the extent that
the Products cannot be used for their intended purpose. Products
damaged while in the care, custody, or control of the Customer are
not Damaged Products for purposes of this Agreement.
1.5 "Defective Products" means Products shipped by Distributor
which contain manufactured defects which prevent them from being
used for their intended purpose.
1.6 "EDI" means electronic data interchange for transmitting
data between computers via a value-added network (mailbox service
provider) or via the Internet.
1.7 "Electronic Report" means information provided
electronically.
1.8 "FTP" means file transfer protocol utilized to provide
information necessary for placing orders with Distributor via a
value-added network or the Internet.
1.9 "Inserts" means custom insertions acceptable to
Distributor which Seller delivers to Distributor at no expense to
Distributor and which Seller requests to be included with Shipments.
1.10 "Order" means a Product order placed by Seller in
accordance with this Agreement.
1.11 "Products" means Distributor's (or its vendors') products
Seller may purchase pursuant to this Agreement.
1
CONFIDENTIAL
1.12 "Shipment" means a shipment of Product by Distributor in
response to an Order.
1.13 "Shipping Facilities" means Distributor facilities in the
United States designated from time-to-time by Distributor as direct-
to-consumer distribution facilities.
1.14 "Unmerchandisable Products" means Products shipped by
Distributor which are shopworn and/or soiled.
2. ELECTRONIC DATA TRANSMISSION. Electronic data transmissions
between Distributor and Seller shall be via EDI. For EDI through a
value-added network, Seller will pay all usual and customary fees related
to transmission and retrieval through Seller's value-added network and
any related interconnect charges to or from Distributor's value-added
network. Distributor will furnish Seller the specifications for FTP and
any other means of electronic data transmission (other than EDI).
Distributor may change those specifications from time-to-time on not less
than 30 days prior written notice to Seller.
3. FULFILLMENT SERVICES.
3.1 ORDERS. Seller will transmit, via electronic data
transmission, Orders to Distributor. Each Order shall contain the
following information: (a) the Customer's name and complete shipping
address; (b) the Distributor-approved shipping method to be used;
(c) the text of any special messages to the Customer; and (d) the
Products to be shipped and their quantity.
3.2 FULFILLMENT. After receipt of an Order, Distributor will
endeavor to: (a) fill the Order from Products in stock at the
Shipping Facilities; (b) print all packing slips excluding Inserts;
(c) insert all packing slips and Inserts; (d) print and affix
shipping labels in Shipments; (e) when made available by
Distributor, print the text of any reasonable special message
acceptable to Distributor on the standard packing slip requested by
Seller in the order; (f) ship the Order to the Customer; (g) order
from the vendor any Back Ordered Products and notify Seller that the
Back Ordered Products are backordered (in which case Seller may, via
electronic data transmission to Distributor, elect to terminate the
Order with respect to the Back Ordered Products or in total); and
(h) if not terminated as described in CLAUSE (g), ship any Back
Ordered Products following their receipt by Distributor at the
Shipping Facilities in accordance with the terms of this Section.
Provided Distributor receives an Order and the related picking
ticket is printed no later than 1:00 p.m., central time, and the
product is available in stock, Distributor will use commercially
reasonable efforts to ship the Order that same Business Day. If the
Order is received and the related picking ticket is printed after
1:00 p.m., central time, and the product is available in stock,
Distributor will use commercially reasonable efforts to ship the
order the following Business Day. If Distributor does not ship an
Order as provided above, Distributor will notify Seller no later
than the second following Business Day, and Seller may without
obligation cancel the order by notice to Distributor via electronic
data transmission. Seller will also have the right to cancel an
Order by notice to Distributor via electronic data transmission at
any time prior to the printing or generation of the pick ticket with
respect to that Order. Seller will not be invoiced for cancelled
Orders. Seller will notify Customers of Order cancellations.
2
CONFIDENTIAL
3.3 PACKING SLIPS. Packing slips printed and inserted in
Shipments by Distributor will be agreed upon in "look and feel" by
Distributor and Seller, based on Seller's specification and
Distributor's capability.
3.4 SHIPMENT. Distributor will use commercially reasonable
efforts to ship Products in accordance with the Distributor-approved
shipping methods specified by Seller in the Order. Distributor will
use commercially reasonable efforts to package all Shipments in a
manner to prevent damage during shipment, the "look and feel" of
which packaging will be agreed upon by Distributor and Seller, based
on Seller's specifications and Distributor's capability.
Distributor will cooperate with Seller in tracking any lost
shipments and filing any related carrier claims. Except as
specifically set out in this Agreement, all shipping shall be at the
expense of Seller. The risk of loss for Products shall pass from
Distributor when the Products are delivered to the carrier for
shipment to the Customers.
3.5 MASTER DATABASE LICENSE AGREEMENT. This Agreement
incorporates by reference the terms of the Master Database License
Agreement in the form of EXHIBIT A hereto (the "Database License").
The Database License describes the Products as of the most recent
update of the ▇▇▇▇▇▇ Entertainment Inc. Master Database (the "Master
Database") made available to Seller. Distributor makes no
representation or warranty as to the availability of any of the
Products, whether or not included in the Master Database.
3.6 REPORTS TO SELLER.
(a) Each Business Day, Distributor will furnish Seller
Electronic Reports of the following: (A) all Shipments made
that Business Day by Order number and tracking number (if
available), all Products contained in each Order, and al Back
Ordered Products by order number, and (B) Orders received, but
not shipped, and the status of each such Order; and (C) all
Product returns (identified by Return Authorization Number)
processed by Distributor indicating quantity and item(s)
received and other information in reasonably sufficient detail
(i.e. Customer and invoice number) to allow Seller to properly
credit Customers for such returns.
(b) On a monthly basis, Distributor shall provide a
statement of account which details (i) all invoices sent to
Seller during the prior calendar month; (ii) all payments
received from Seller during the prior calendar month, and other
credits made against Seller's payment obligations; and (iii)
all unpaid invoices.
3.7 LICENSE. Seller hereby grants to Distributor all license
to (a) distribute the Inserts in connection with the Products, and
(b) use Seller's trademarks in accordance with Seller's
specifications on Product invoices and other materials provided to
Customers.
3.8 NON-EXCLUSIVE DEALING. Nothing in this Agreement requires
Distributor to deal exclusively with Seller in any capacity.
3
CONFIDENTIAL
4. RETURNS.
4.1 RETURNS GENERALLY. (a) In order for returned Products
(including Defective Products, Unmerchandisable Products, Damaged
Products, and Products erroneously shipped to Customers) to be
eligible for credit pursuant to this Agreement, Seller agrees to the
following procedures:
(i) Seller will furnish each Customer desiring to return
Products a return authorization number of no more than eight
characters, all of which must be alpha numeric; and
(ii) Seller will furnish to Distributor that authorization
number; the Seller's account number; the item number(s) or UPC
number(s) of he Products being returned; the quantity of each
Product being returned; Seller's invoice number to which the
return is to be applied; and the reason for the Product return
(carrier damage, shipped in error, defective, Customer error,
Customer change in preference, etc.).
Within five Business Days of Distributor's receipt of the returned
Products, all returned Products will be logged into Distributor's
inventory, Seller will be issued a credit by Distributor for the
lowest price per unit paid by Seller to Distributor for the returned
Products (excluding freight and handling fees) or, if less, the
current market value of those Products; PROVIDED, HOWEVER, that if
Seller furnishes Distributor the applicable invoice number and the
returned Products have been received by Distributor no more than 60
days after the invoice date, such credit will be equal to the order
or line item amounts for the returned Products shown on that
invoice. In the event of the return by Customers of Defective
Products, Unmerchandisable Products, Products shipped erroneously to
Customers, and/or Damaged products, the credit set out in this
paragraph will include the freight costs initially charged to Seller
by Distributor for those Products. The credit set out in this
paragraph will be reduced by any applicable processing fee described
in SECTION 4.2. Distributor will provide Seller with information in
reasonably sufficient detail (i.e. ▇▇▇▇▇▇▇ ▇▇ number and invoice
number (if provided by Customer)) to allow Seller to properly credit
Customer for such returns. Credit memos for returns will be
processed by Distributor and delivered to Seller within 15 days
after Distributor's receipt of the returned Product. Credits issued
to Seller under any such credit memos will be applied immediately to
payables incurred by Seller. Seller will reimburse Distributor per
normal payment terms set out in SECTION 5.3 for any freight costs
charged to Distributor by the carrier due to Customer refusal to
accept delivery of Products correctly shipped to the Customer which
are then returned by the carrier to Distributor. Distributor's sole
liability for any Defective Products, Unmerchandisable Products,
Products erroneously shipped to Customer, and/or Damaged Products
will be acceptance of their return and issuance of the credit set
out in this paragraph. If Seller desires replacement of any of the
four types of Products described in the preceding sentence, Seller
will initiate a new order for the replacement Products.
(b) Distributor will not be obligated to accept any returns of
Products submitted more than 60 days after shipment of such Products
to a Customer, including
4
CONFIDENTIAL
returns of Defective Products, Damaged Products, Unmerchandisable
Products and/or erroneously shipped Products.
4.2 PROCESSING FEE. For returns of Products (other than
returns of Defective Products, Unmerchandisable Products, Damaged
Products, or Products erroneously shipped to Customers), Seller will
pay Distributor a processing fee of $0.65 per unit for all units
returned. The processing fee will reduce the amount of any credits
provided pursuant to SECTION 4.1.
4.3 MINT, RESALABLE CONDITION. All Product returned to
Distributor (except for returns of Defective Products,
Unmerchandisable Products, or Damaged Products) must be with the
original packaging intact (including manufacturer's shrink wrap) and
otherwise in mint, resalable condition. No credit will be issued
for any returned Product not in mint, resalable condition with the
original packaging intact.
5. PAYMENT.
5.1 PRICES. Product prices to be paid by Seller to
Distributor are set forth on EXHIBIT B. Distributor may change such
prices with 30 days' prior written notice.
5.2 FEES. Fees for services provided by Distributor to Seller
are set forth on EXHIBIT C. Distributor may change such fee amounts
with 30 days prior written notice.
5.3 PAYMENT TERMS. Distributor will invoice Seller upon
shipment of Product. To the extent Seller establishes a credit line
with Distributor, all invoices shall be due and payable thirty days
from invoice date. Distributor may establish a credit line for
Seller based upon Seller's credit application and submission of
financial data per Distributor's policies. Seller understands that
if a credit line with Distributor is established, it may be modified
from time-to-time based upon Distributor's credit review and credit
policies. Any amounts not paid when due will be subject to a late
charge of 1 1/2% per month (18% per annum) on the overdue balance
(or, if less, the maximum amount permitted by applicable law).
5.4 ADVERTISING. Distributor will pass through to Seller a
proportionate share of any co-op advertising or market development
funds from vendors applicable to the Products. All advertising must
have prior approval of Distributor and the vendor to qualify for
pass through. In order to qualify for these funds, Seller
acknowledges its understanding that it must provide Distributor and
the vendor with acceptable proof of performance on forms and within
the time frames specified by vendor. Deductions for advertising
prior to receipt of credit are prohibited.
6. DISCLAIMER. DISTRIBUTOR PROVIDES ALL PRODUCTS, MATERIALS AND
SERVICES TO SELLER AND ITS CUSTOMERS "AS IS," AND DISTRIBUTOR DISCLAIMS
ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. However, the
foregoing disclaimer does not limit any warranties provided by Product
vendors to either Seller or its Customers. To the extent any Order
includes a message
5
CONFIDENTIAL
from the Customer to the recipient of the Order, Seller acknowledges that
Distributor will not screen or review any such message and Seller agrees
to indemnify and hold harmless distributor from and for any claim
allegation, costs, loss, or liability of Distributor related to any such
message or its inclusion in any Order. Each party acknowledges that it
has not entered into this Agreement in reliance upon any warranty or
representation except as specifically set forth herein. DISTRIBUTOR HAS
NOT LICENSE OR PROVIDED AND DOES NOT HEREBY LICENSE OR PROVIDE SELLER THE
RIGHT TO USE ANY LOGO, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY OF
DISTRIBUTOR, ANY SUPPLIER OR VENDOR, OR ANY OTHER PARTY.
7. LIMITATION OF LIABILITY. NEITHER DISTRIBUTOR NOR SELLER SHALL
BE LIABLE FOR PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
LOST PROFITS (INCLUDING DUE TO NEGLIGENCE) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DISTRIBUTOR BE LIABLE IN
AN AMOUNT GREATER THAN THE AMOUNTS ACTUALLY PAID BY SELLER TO DISTRIBUTOR
HEREUNDER. THE ONLY LIABILITY DISTRIBUTOR WILL HAVE WITH RESPECT TO ANY
DEFECTIVE PRODUCTS, DAMAGED PRODUCTS, UNMERCHANDISABLE PRODUCTS, AND/OR
PRODUCTS ERRONEOUSLY SHIPPED WILL BE THE RETURN RIGHTS OF CUSTOMERS AND
THE OBLIGATION TO PROVIDE THE CREDITS DESCRIBED IN THIS AGREEMENT.
8. TERM AND TERMINATION.
8.1 TERM. Unless earlier terminated as specified below, this
Agreement commences on the Effective Date and expires on the first
anniversary of the Effective Date; PROVIDED, HOWEVER, that unless a
party exercises its termination rights provided herein, the term
shall be automatically renewed for successive one year periods.
8.2 TERMINATION FOR CONVENIENCE. Either party may terminate
this Agreement at any time during any renewal term for its
convenience upon 90 days prior written notice to the other.
8.3 EVENT OF DEFAULT. Either party may terminate this
Agreement at any time during any renewal term for its convenience
upon 90 days prior written notice to the other.
8.3 EVENT OF DEFAULT. Either party may terminate this
Agreement immediately upon the occurrence of an Event of Default by
the other party. As used herein, an "Event of Default" means the
defaulting party's failure to cure, after receipt of not less than
30 days' prior written notice form the non-defaulting party, any of
the following: (a) failure of the defaulting party to observe or
perform any condition or obligation imposed on the defaulting party
under this Agreement (including payment obligations); (b) breach of
any warranty made by the defaulting party under this Agreement; or
(c) filing of a voluntary petition in bankruptcy or having an
involuntary petition filed against the defaulting party, or the
execution of an assignment for the benefit of creditors of the
defaulting party; PROVIDED, HOWEVER, that if a default is not
capable of cure within the above 30 day period, the period will be
extended until such cure can reasonably be accomplished or, if
sooner, until the breaching party ceases to use diligent efforts to
effect that cure. The option to terminate this Agreement shall be
in addition to, and not in lieu of, any other remedy available to
the terminating party under this Agreement or at law or equity, all
such remedies being cumulative.
6
CONFIDENTIAL
8.4 EFFECT OF TERMINATION. Upon expiration or termination, at
Seller's option, Distributor will either (a) fulfill all pending
Orders in accordance with their terms, in which case all applicable
covenants and licenses under this Agreement shall survive to the
limited extent necessary to fulfill such Orders, or (b) cancel all
pending Orders and immediately refund any payments already made for
such pending Orders and any credits due. Absent election by Seller,
Distributor may elect (a) or (b). Further, the parties will
promptly reconcile accounts payable and receivable and bring the
balance owed, if any, current. SECTIONS 2, 4, 6, 7, 8.4, 9, 10, 11,
and 12 shall survive termination or expiration.
9. CONFIDENTIALITY. The parties agree, during the term of this
Agreement and for the five year period following its termination or
expiration, to keep strictly confidential and not disclose to any party,
other than its agents, employees, contractors, or advisors, and then only
on a need to know basis after having informed such individuals of the
confidential nature of the information and such party's obligation to
protect that confidentiality and not to disclose such information except
as set out herein, the following: (a) any term or condition of this
Agreement or of any transaction entered into pursuant to it, or (b) any
information about the other party or its business, operations, products,
finances, customers, distributors, systems, budgets, or liabilities
obtained in connection with this Agreement or the transactions
contemplated by it. Distributor further agrees that any Customer
information provided to Distributor by Seller for shipping purposes will
not be used for solicitation or any other purpose by Distributor. The
provisions of this Section shall not apply to information which (w) is
already known to the receiving party or is publicly available at the time
of disclosure; (x) becomes publicly available after disclosure through no
act of the receiving party; (y) is disclosed by the disclosing party
without an obligation or reasonable expectation of confidentiality; or
(z) is required by law to be disclosed (after providing the disclosing
party the opportunity to seek a protective order at its expense).
Neither party shall issue any press release or similar publicity
statement concerning this Agreement's existence or terms without both
parties' prior approval.
10. COMPLIANCE WITH LAWS. At its own expense, each party will
comply with all applicable laws and regulations regarding its activities
related to this agreement.
11. TAXES. Seller is for all purposes the seller of the products
to its Customers and shall be responsible for any and all sales and
similar taxes arising from such sales. SELLER SHALL FOREVER DEFEND,
INDEMNIFY, AND HOLD HARMLESS DISTRIBUTOR AND ITS AFFILIATES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND CONTRACTORS, FROM ANY AND
ALL SALES AND OTHER TAX LIABILITY ARISING FROM THE SALE OF PRODUCTS TO
THE CUSTOMERS, INCLUDING INTEREST, PENALTIES, AND RELATED CHARGES.
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW. This Agreement will be governed and
construed in accordance with the laws of the State of Tennessee
without giving to conflict of laws principles. Both parties submit
to the jurisdiction and venue of the federal and state courts
sitting in Nashville, Tennessee, and further agree that any cause of
action arising under this Agreement shall be brought in such courts.
7
CONFIDENTIAL
12.2 SEVERABILITY; HEADINGS. If any provision herein is held
to be invalid or unenforceable for any reason, the remaining
provisions will continue in full force without being impaired or
invalidated in any way. Headings are for reference purposes only
and in no way define, limit, construe or describe the scope or
extent of such section.
12.3 FORCE MAJEURE. If performance hereunder is prevented,
restricted or interfered with by any action or condition whatsoever
beyond the reasonable control of a party, the party so affected,
upon giving prompt notice to the other party, shall be excused from
such performance to the extent of such prevention, restriction or
interference. Each party shall use commercially reasonable efforts
to mitigate the effect of a force majeure.
12.4 INDEPENDENT CONTRACTORS. The parties are independent
contractors, and no agency, partnership, joint venture, employee-employer
or franchisor-franchisee relationship is intended or created by this
Agreement. Neither party shall make any warranties or representations
on behalf of the other party.
12.5 NOTICE. Except as otherwise specified, any notices
hereunder shall be given to the appropriate party at the address
specified above or at such other address as the party shall specify
in writing. Notice shall be deemed given, upon personal delivery,
if sent by fax, upon confirmation of receipt, if sent by certified
or registered mail, postage prepaid, when sent; or if sent by
overnight courier, upon receipt.
12.6 ENTIRE AGREEMENT; WAIVER. This Agreement sets forth the
entire understanding and agreement of the parties, and supersedes
any and all oral or written agreements or understandings between the
parties, as to the subject matter of this Agreement. Except as
otherwise provided herein, it may be changed only by a writing
signed by both parties. The waiver of a breach of any provision of
this Agreement will not operate or be interpreted as a waiver of any
other or subsequent breach.
"SELLER" "DISTRIBUTOR"
N-GEN SOLUTIONS ▇▇▇▇▇▇ ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- ---------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Print Name: ▇▇▇ ▇▇▇▇▇▇▇▇
------------------- -------------------
Title: VP - Marketing Title: VP-Business Development
------------------------ ------------------------
8
CONFIDENTIAL
EXHIBITS
--------
A. Master Database License Agreement
B. Product Pricing
C. Fee
9
CONFIDENTIAL
EXHIBIT A
MASTER DATABASE LICENSE AGREEMENT ("Database License")
For the set up fee of $5,000 and a monthly fee of $700 for subsequent
updates (so long as such updates are made available in the discretion of
▇▇▇▇▇▇ Entertainment Inc.), ▇▇▇▇▇▇ Entertainment Inc. (the "Company") is
prepared to deliver to you the ▇▇▇▇▇▇ Entertainment Inc. Master Database,
including updates (collectively the "Material"), subject to the following
terms and conditions.
1. WAIVER OF FEES: Provided you use the Company as your primary
supplier of pre-recorded video software, DVD software,
audiobooks, and video game software, hardware, and accessories
for the one-year period following the date you sign the
agreement to which this Database License is an Exhibit, the
Company will waive the above $5,000 set-up fee and the $700
update fees. Following that one-year period, the Company will
waive the $700 update fees provided that at all times following
that one-year period you have continued to use the Company as
your primary supplier for above products. In the event you do
not use the Company as your primary supplier of those products
during the initial one-year period of this Database License,
you agree retroactively to pay the Company the above fee which
the Company waived in anticipation of its primary suppler
status. If you fail to use the Company as your primary
supplier after the first year, however, you will not be liable
for the above retroactive payment. Your obligation to use the
Company as your primary supplier of the above products shall be
subject to the following exceptions: (a) products not carried
by the Company; (b) purchases of used products; (c) orders
which the Company is unable to fill from inventory on hand or
inventory with an expected delivery date to the Company of no
more than 48 hours from the date of your order; (d) orders in
excess of the credit limit extended to you by the Company,
provided you are within your credit terms with the Company at
the time of such order; or (e) products carried by the Company
which are bundled as a unit with products not carried by the
Company.
2. LIMITATION ON USE. You may provide access to the Material
available via kiosks, on-line services including electronic
bulletin systems, and through Internet on-line search and query
systems as appropriate to encourage the resale of products in
the Material. This excludes and prohibits the right to copy,
distribute or sell the Material or portions thereof apart from
your product(s) that may incorporate the Material (or portions
thereof) as a component thereof. A violation of the preceding
sentence will terminate this Database License at which time you
will agree to return the Material within 10 days of termination
and to purge the Material entirely from your systems where the
Material is stored and/or used.
3. CONFIDENTIAL INFORMATION. As used herein, "Confidential
Information" shall mean the Material and all extracts,
analysis, summaries, reviews, and other items prepared by you
which contain or are derived in any way from the Material.
10
CONFIDENTIAL
4. CONFIDENTIALITY OBLIGATION. You agree with respect to the
Material and Confidential Information that you (a) will not use
it for any purpose except that which is expressly contemplated
by this agreement; (b) will not assign or transfer it to any
party (other than a successor to all or substantially all of
your assets); and (c) will not disclose to any third party
directly or indirectly that it was received from or is
attributable to the Company.
5. NO REPRESENTATION. You acknowledge that, while the Company
believes the Material and Confidential Information to be
generally reliable, none of the Company or its affiliates,
employees, agents, or contractors has made or is hereby making
any express or implied representation or warranty as to the
accuracy or completeness of the Material or Confidential
Information. You further agree that none of them will have any
liability to you for any errors or omissions in or related to
it. None of the Company or any of the above other entities or
individuals has any obligation to inform you of or correct any
errors or omissions in the Material or Confidential Information
of which may have knowledge or become aware.
11
CONFIDENTIAL
EXHIBIT B
VIDEO: Seller will receive a discount of 9% off Dealer pricing on all
pre-recorded video software.
DVD: Seller will receive margin 8% pricing over Distributor's gross cost
on all DVD software.
VIDEO GAMES: Seller will receive margin 10% pricing over Distributor's
gross cost on all video game software.
AUDIOBOOKS: Seller will receive a discount of 38% off Retail pricing on
all audiobook software.
12
CONFIDENTIAL
EXHIBIT C
SET UP: None
FREIGHT: Manifested freight will be passed through to Seller.
HANDLING FEE: Seller will be charged $.65 per unit shipped to Customers.
INSERTS: Seller will be charged $0.05 per insertion for standard inserts
(such as small catalogs, single page information/promotion cards, etc.).
Non-standard inserts are priced on a per item basis.
13