EX-10.5 5 dex105.htm RESALE AGREEMENT RESALE AGREEMENT
Exhibit 10.5
This Agreement (“Agreement”) is by and between ▇▇▇.▇▇▇ Inc. (“▇▇▇.▇▇▇”), with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ Micro Inc. (“Ingram”) excluding its subsidiaries, with its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. This Agreement will include shipments to ▇▇▇.▇▇▇’s locations in the United States only.
| 1. | Purpose |
The purpose of this Agreement is to provide the terms and conditions for the purchase and resale by ▇▇▇.▇▇▇ and the sale by Ingram to ▇▇▇.▇▇▇ of various computer products including both hardware and software offered by Ingram to its customers (“Product”), excluding electronic software distribution (ESD) product.
| 2. | Terms of Sale |
A. ▇▇▇.▇▇▇ will source all of its Product requirements from Ingram during the term of this Agreement, provided that the Product is available at the time ▇▇▇.▇▇▇ places its order. In the event the Product is not available or is not offered to ▇▇▇.▇▇▇ by Ingram, ▇▇▇.▇▇▇ shall have the right to source such Product from another source.
B. If authorization for resale is required by the vendor of any Product, then Ingram will not be obligated to sell such Product to ▇▇▇.▇▇▇ unless Ingram has received such required authorization. If any vendor prohibits Ingram from selling a specific Product to ▇▇▇.▇▇▇, then Ingram reserves the right not to sell said Product to ▇▇▇.▇▇▇.
▇. ▇▇▇▇▇▇ and ▇▇▇.▇▇▇ will work towards the implementation of Inside Line which provides pricing and on-line availability.
| 3. | Ordering |
A. ▇▇▇.▇▇▇ will compile, update, and provide Ingram with Product order information. The Product order information will include the (i) Product type(s), (ii) unit quantity, (iii) Ingram SKU number and/or vendor part number, (iv) ▇▇▇.▇▇▇ purchase price from Ingram, and (v) correct shipping address. For government orders, ▇▇▇.▇▇▇ will compile the above Product order information as well as (i) end user name and zip code and (ii) government contract number. ▇▇▇.▇▇▇ personnel will identify, for each Product order, the ship-to destination as either ▇▇▇.▇▇▇, ▇▇▇.▇▇▇’s customer, or to some other specified third party. Ingram will, subject to Product availability, use its best efforts to fill and ship all Product orders placed by ▇▇▇.▇▇▇ within one (1) business day of order receipt.
▇. ▇▇▇▇▇▇ will accept orders over telephone, via facsimile, and via Ingram approved electronic ordering methods as defined in ▇▇▇▇▇▇’▇ Catalog only from those who identify themselves as ▇▇▇.▇▇▇ personnel and provide the Ingram customer number prior to placing the order. Ingram will have no obligation to confirm the validity of any order placed or the authority of the person placing an order in this manner. ▇▇▇.▇▇▇ will disclose its Ingram customer number only to its personnel with a need to know.
▇. ▇▇▇▇▇▇ will [***] for all of ▇▇▇.▇▇▇’s Product orders.
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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| 4. | Volume Commitment |
▇▇▇.▇▇▇ agrees that its annual Ingram purchases will meet or exceed $350 MILLION for the term of this Agreement. This annual purchase goal may be reviewed and adjusted quarterly. If ▇▇▇.▇▇▇ fails to achieve this run rate within six (6) months from the effective date of this Agreement, Ingram reserves the right to review and adjust the pricing as stated in Section 5.
| 5. | Pricing |
A. ▇▇▇.▇▇▇’s prices for Product purchases, excluding those listed in Exhibit A, will be Ingram Cost plus the percentage listed below for the applicable Product types. Exhibit A provides a list of vendors for which the pricing is adjusted individually and separately from the pricing listed below.
| Product Type | Cost Plus % | |
| Software | [***] | |
| Hardware | [***] | |
| Accessory | [***] | |
| Technical | [***] |
NOTE: Certain Product purchases, including but not limited to [***], may not be included in the above pricing.
B. As ▇▇▇▇▇▇’▇ costs change, prices to ▇▇▇.▇▇▇ may be adjusted to reflect those changes.
▇. ▇▇▇▇▇▇ represents to ▇▇▇.▇▇▇ that it believes that the [***] being offered to ▇▇▇.▇▇▇ pursuant to this Agreement, when considered in the aggregate, [***]. On a quarterly basis during the term of this Agreement, Ingram and ▇▇▇.▇▇▇ will meet to review current market prices and terms for the Products and services being offered by Ingram to ▇▇▇.▇▇▇ pursuant to this Agreement. At such meetings, the parties will discuss in good faith amendments to such prices and terms, if necessary, in order to render the [***] provided by Ingram to ▇▇▇.▇▇▇, when considered in the aggregate, [***].
| 6. | Payment Terms |
A. ▇▇▇.▇▇▇ shall furnish to Ingram all financial information reasonably requested by Ingram from time to time for the purpose of establishing or continuing ▇▇▇.▇▇▇’s credit limit, it being understood that Ingram shall have the right to decline to extend credit to ▇▇▇.▇▇▇ and to require that the applicable purchase price be paid prior to shipment. Ingram shall have the right from time to time, without notice, to change or revoke ▇▇▇.▇▇▇’s credit limit on the basis of changes in ▇▇▇▇▇▇’▇ credit policies or ▇▇▇.▇▇▇’s financial condition and/or payment record.
▇. ▇▇▇▇▇▇ will invoice ▇▇▇.▇▇▇ upon Product shipment, and all invoices will be due and payable [***] ([***]) days from the invoice date. Ingram will provide an Early Pay Discount of [***] ([***]) on all invoices for which payment is received by wire transfer within three (3) days of invoice date. A service charge of the lesser of [***] ([***]) per month or the maximum amount allowed by law will be charged on all past due balances to defray ▇▇▇▇▇▇’▇ costs of carrying such balance. Credit cards (MasterCard, VISA and Discover Card) will only be accepted at the time of order or purchase. Payment for all other orders must be made in accordance with the terms in effect at the time the order was placed.
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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C. In the event ▇▇▇.▇▇▇ fails to make timely payment of any amount invoiced hereunder, Ingram shall have the right, in addition to any and all other rights and remedies available to Ingram, at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to ▇▇▇.▇▇▇. ▇▇▇.▇▇▇ shall pay all costs of collection, including reasonable attorneys’ fees.
D. Any obligation of Ingram under these terms and conditions to deliver Products on credit terms shall terminate without notice if ▇▇▇.▇▇▇ files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against ▇▇▇.▇▇▇, or if a receiver or trustee is appointed to take possession of the assets of ▇▇▇.▇▇▇.
| 7. | Shipping |
A. All orders will be shipped F.O.B. origin, ▇▇▇▇▇▇’▇ carrier of choice, with all ground freight charges paid by Ingram for shippable Product orders over [***] ([***]). In the event an authorized ▇▇▇.▇▇▇ representative requests a priority shipping method, ▇▇▇.▇▇▇ agrees to use an Ingram authorized carrier and to pay all such freight costs.
B. For fulfillment orders all Product shipped directly to ▇▇▇.▇▇▇’s customers will be packaged with no reference to Ingram. Specifically, the packaging will not display any Ingram trademark, service ▇▇▇▇, logo, or trade name. If the carrier requires a return address, Ingram may use its warehouse address, without its company name on such shipment.
C. ▇▇▇.▇▇▇ or its customer shall examine all Products promptly upon receipt thereof. No later than thirty (30) days after receipt, ▇▇▇.▇▇▇ shall notify Ingram of all claimed shortages or damaged Products or if rejection is intended, shall specify all grounds therefor. Failure to give such notice shall be deemed an acceptance of the Products as of the date of shipment.
| 8. | Returns |
A. ▇▇▇.▇▇▇ agrees to make separate requests for stock balance and defective returns. All returns must be accompanied by a valid Ingram Return Material Authorization (“RMA”) number. Each return must be packaged separately for each RMA and contain only Product specified on that RMA. All RMA’s are valid for thirty (30) days from the date of issuance.
B. Stock Balancing
1. For systems vendor returns, Ingram will allow ▇▇▇.▇▇▇ stock balance returns for up to [***] ([***]) days from the date of invoice, subject to vendor requirements or restrictions. ▇▇▇.▇▇▇ will have Product return privileges on overstocked resalable Products purchased from Ingram of up to [***] ([***]) of its previous [***] ([***]) days purchases, less any stock balance returns. Credit for returns is calculated at the last purchase price or the current price, whichever is lower.
2. For non-systems vendor returns, Ingram will allow ▇▇▇.▇▇▇ stock balance returns for up to [***] ([***]) days from the date of invoice, subject to vendor requirements or restrictions. ▇▇▇.▇▇▇ will have Product return privileges on overstocked Product purchased
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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from Ingram of up to [***], less any stock balance returns. Credit for returns is calculated at the last purchase price or the current price, whichever is lower.
3. Ingram reserves the right not to accept Products which are (a) no longer in production or (b) are being produced or published by a manufacturer which is insolvent or which has declared bankruptcy or (c) subject to more restrictive stock balancing policies issued by the Product’s manufacturer or publisher. ▇▇▇.▇▇▇ shall pay all costs and bear all risks of loss when returning Products to Ingram. Configured Products may not be stock balanced.
C. Defective Returns
1. ▇▇▇.▇▇▇ may return to Ingram for replacement or credit any Products (other than Configured Products) found to be defective within ninety (90) days of purchase or any Configured Products which are found to be defective within thirty (30) days of purchase. ▇▇▇.▇▇▇ must obtain ▇▇▇▇▇▇’▇ approval prior to returning the Products. Ingram reserves the right to require ▇▇▇.▇▇▇ to return defective Products directly to the Products’ manufacturer for replacement according to the manufacturer’s defective Products return policy.
2. Ingram shall not be obligated to repair or replace Products rendered defective, in whole or in part, by causes external to the Products, such as, but not limited to catastrophe, power failure or transients, overvoltage on interface, environment extremes, improper use, maintenance and application of the Products or use of unauthorized parts.
| 9. | Marketing Funds |
Ingram and ▇▇▇.▇▇▇ agree to the terms of the Marketing Agreement incorporated herein as Exhibit B.
| 10. | Confidentiality |
A. For a period of two (2) years from the date of disclosure to the other party, both parties agree that they will not disclose to third parties the Confidential Information, as hereafter defined, of the other without the other party’s prior written permission. Confidential Information shall mean all proprietary information and/or trade secrets (including but not limited to ▇▇▇.▇▇▇ customer information) regardless of the form in which it is transmitted, which (a) if disclosed in tangible form bears a legend indicating that it is confidential or proprietary; or (b) if disclosed orally or visually only, is identified as confidential or proprietary at the time of disclosure and is documented as such in writing and a non-confidential written summary of the disclosure is provided to the other party within thirty (30) days of the date of disclosure. Confidential Information will only be used by the parties in furtherance of this business relationship. Ingram agrees not to use ▇▇▇.▇▇▇’s Confidential Information to solicit or develop business directly with ▇▇▇.▇▇▇’s customers.
B. The foregoing obligations not to disclose Confidential Information shall not apply with respect to a party’s Confidential Information that: (i) was in the possession of or known by the other party without an obligation of confidentiality prior to receipt from the disclosing party, (ii) is or becomes general public knowledge through no fault or acts of the other party; (iii) is or becomes lawfully available to the other party from a third party which, to the other party’s knowledge, is not subject to an obligation of confidentiality; (iv) is independently developed by the other party without use of any Confidential Information; or (v) the other party is advised by counsel is required to be disclosed by any governmental agency or pursuant to any law, code or regulation, provided the disclosing party notifies
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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the other party in writing as soon as it becomes aware of the disclosure requirement so as to afford the other party every opportunity to take whatever steps it deems necessary to protect the confidentiality of the information. In the event that ▇▇▇.▇▇▇ determines that it must file this Agreement as an exhibit to any registration statement it files with the U.S. Securities and Exchange Commission (the “SEC”), ▇▇▇.▇▇▇ will request confidential treatment for the filing, will permit Ingram to review and approve the portions of this Agreement for which confidential treatment is requested at least seventy-two (72) hours prior to the filing, and will permit Ingram to participate in any discussions it or its representatives may have with the SEC with respect to such request.
| 11. | Taxes |
▇▇▇.▇▇▇ shall bear applicable federal, state, municipal, and other government taxes (such as sales, use, etc.). Unless otherwise specified, list prices do not include such expenses, and they will appear, if applicable, as separate, additional items on the invoice. Exemption certificates, valid in the place of delivery, must be presented to Ingram prior to shipment if they are to be honored.
| 12. | Warranty |
Product warranties, if any, are provided by the manufacturer/publisher of the Products. Ingram makes no warranties whatsoever. ▇▇▇▇▇▇’▇ sole obligation (and ▇▇▇.▇▇▇’s sole remedy) in the event of breach of any warranty shall be the repair or replacement of defective Products. IN NO EVENT SHALL ▇▇▇▇▇▇ BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. INGRAM DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. INGRAM MAKES NO WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN.
| 13. | Patent and Trademark Indemnity |
INGRAM SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ▇▇▇.▇▇▇ FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY ▇▇▇.▇▇▇ ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY PRODUCTS. NOTWITHSTANDING ANY OTHER TERMS OR CONDITIONS TO THE CONTRARY, ▇▇▇▇▇▇’▇ LIABILITY UNDER THIS SECTION SHALL NOT EXCEED THE PURCHASE PRICE OF THE INFRINGING PRODUCT.
| 14. | Limitation of Liability |
INGRAM SHALL NOT BE LIABLE TO ▇▇▇.▇▇▇, ▇▇▇.▇▇▇’S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY WHICH RESULTS FROM THE USE OR APPLICATION BY ▇▇▇.▇▇▇, ▇▇▇.▇▇▇’S CUSTOMER, OR ANY OTHER PARTY OF PRODUCTS DELIVERED TO ▇▇▇.▇▇▇, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF INGRAM. IN NO EVENT SHALL ▇▇▇▇▇▇ BE LIABLE TO ▇▇▇.▇▇▇ OR ANY THIRD PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY INGRAM, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS ACTUALLY DELIVERED TO ▇▇▇.▇▇▇ HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR
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INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH EITHER PARTY’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS PROVIDED HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES. BOTH PARTIES HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS FOR SUCH DAMAGES. IN NO EVENT SHALL INGRAM HAVE ANY LIABILITY FOR ANY PRODUCTS USED FOR AVIATION, MEDICAL, LIFESAVING, LIFE SUSTAINING OR NUCLEAR APPLICATIONS.
| 15. | Compliance with U.S. Export Laws |
The Products are sold to ▇▇▇.▇▇▇ for resale in the United States only. In the event ▇▇▇.▇▇▇ delivers the Products to a customer who may use the Products outside the United States, ▇▇▇.▇▇▇ acknowledges and shall advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export. ▇▇▇.▇▇▇ agrees that it will not export, re-export, or otherwise distribute Products, or direct products thereof, in violation of any export control laws or regulations of the United States. ▇▇▇.▇▇▇ warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless ▇▇▇.▇▇▇ has obtained prior approval from the Department of Commerce. ▇▇▇.▇▇▇ further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries, including, but not limited to, Cuba, Libya, North Korea, Iran, Iraq, Sudan and Syria. Diversion of Products contrary to U.S. law is prohibited.
| 16. | Manufacturer/Publisher Restrictions |
All Products delivered to ▇▇▇.▇▇▇ hereunder may have additional restrictions on their use required by manufacturer/publisher. ▇▇▇.▇▇▇ is solely responsible for ensuring its adherence to any and all such restrictions or requirements.
| 17. | Severability |
A judicial determination that any provision hereunder is invalid in whole or in part shall not affect the enforceability of those provisions not found to be invalid.
| 18. | Reconciliation |
Both parties mutually agree to reconcile ▇▇▇.▇▇▇’s account every ninety (90) days from the effective date of this Agreement. In order to allow appropriate credits to be applied, ▇▇▇.▇▇▇ agrees to provide appropriate documentation as listed in Exhibit C to Ingram and wait thirty (30) days from the date of the disputed claim before debiting Ingram for any reason.
| 19. | Notices |
All notices and other communications relating to this Agreement or its terms will be in writing and mailed via first class United States Postal Service, certified or registered with return receipt requested or via facsimile. All notices so mailed will be deemed received two (2) days after postmark date and facsimiles will be deemed received upon notification of successful transmission.
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| 20. | Choice of Law/Choice of Forum |
This Agreement shall be deemed to have been executed and delivered in Santa Ana, California, and shall be construed, interpreted and enforced under and in accordance with the internal laws of the State of California, excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction. The parties agree to exercise any right or remedy in connection with this Agreement exclusively in, and hereby submit to the jurisdiction of the State of California, Courts of Orange County, California, or the United ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇. The state and federal courts situated in Orange County, California will have non-exclusive jurisdiction and venue over any dispute or controversy, which arises out of this Agreement.
| 21. | Binding Effect/Assignment |
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective representatives, successors and permitted assigns. Neither party may assign its rights and/or duties under this Agreement without the prior written consent of the other party given at the other party’s sole option; except that Ingram may assign this Agreement to a subsidiary or affiliate upon notice to ▇▇▇.▇▇▇. Any such attempted assignment shall be void.
| 22. | Headings |
This Agreement may be executed in any number of original counterparts, each of which when executed and delivered will be deemed to be an original and all of which taken together will constitute but one and the same instrument. Headings in this Agreement are included for convenience of reference only and will not constitute a part of this Agreement for any other purpose.
| 23. | Attorneys Fees |
In the event there is any dispute concerning the terms of this Agreement or the performance of any party hereto pursuant to the terms of this Agreement, and any party hereto retains counsel for the purpose of enforcing any of the provisions of this Agreement or asserting the terms of this Agreement in defense of any suit filed against said party, each party shall be solely responsible for its own costs and attorney’s fees incurred in connection with the dispute irrespective of whether or not a lawsuit is actually commenced or prosecuted to conclusion.
| 24. | Term and Termination |
This Agreement will commence on the date of the last signature set forth below and will continue for one (1) year. Either party may terminate this Agreement without cause by giving one hundred twenty (120) days advance written notice to the other party. The termination provisions in Exhibit B shall apply only to Exhibit B and Clause 9 of this Agreement. Ingram may terminate this Agreement immediately for cause upon written notice, which notice will include a ten (10) day opportunity to cure.
| 25. | Entire Agreement |
This Agreement (including any Exhibits and Addenda) constitutes the entire Agreement between the parties pertaining to the subject matter hereof, and will cancel, terminate, and supersede any and all previous agreements, proposals, representations, or statements, whether oral or written. The terms of this Agreement will supersede the terms of any invoice or purchase order issued by either party. Any modifications of this Agreement must be in writing and signed by an authorized representative of each party.
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This Agreement will become effective as of the last date of signature by the authorized parties below.
| “▇▇▇.▇▇▇” | “Ingram” | |||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| (Officer of the Company) | (Officer of the Company) | |||||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| (Please print or type) | (Please print or type) | |||||||
| Title: | CEO | Title: | Sr. VP of Sales | |||||
| Date: | 3/10/99 | Date: | 3/10/99 |
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▇▇▇▇▇▇ Micro Inc. Resale Agreement
EXHIBIT A
Vendor Level Pricing
| Vendor Number | Vendor Name | Cost Plus % | ||
| [***] | [***] | [***] |
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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▇▇▇▇▇▇ Micro Inc. Resale Agreement
EXHIBIT B
Marketing Agreement
▇▇▇▇▇▇’▇ Marketing Department understands the needs and requirements that ▇▇▇.▇▇▇ has in order to meet its specific business objectives and future goals. ▇▇▇▇▇▇’▇ Product Marketing and Reseller Marketing team is committed to work with key contacts at ▇▇▇.▇▇▇ to facilitate an ease of doing business, increase communication between our companies and collaborate in meeting ▇▇▇.▇▇▇’s established marketing goals.
To achieve ▇▇▇.▇▇▇’s vendor-funding goals, Ingram will commit to best efforts in working jointly with ▇▇▇.▇▇▇ to secure marketing related vendor pass through based on a level equal to [***] of ▇▇▇.▇▇▇’s [***] with a maximum amount of [***] period. Notwithstanding any other provision to the contrary herein, this marketing agreement is contingent upon ▇▇▇.▇▇▇ achieving and maintaining $500 million in annual product purchases through Ingram.
To effectively facilitate this agreement, Ingram will assemble and asign a team of associates to manage all aspects of the Ingram and ▇▇▇.▇▇▇ marketing relationship. Ingram assigned associates will include a [***] sales team, a sales manager, a marketing manager, and pass through, administration and analysis support. These sales associates, and the marketing management team, will work closely with the ▇▇▇.▇▇▇ sales team to initiate and drive marketing programs. Ingram will develop a [***] for the assigned sales associates. Ingram will assemble this team within [***] of effective date of this marketing agreement. The [***] to the ▇▇▇.▇▇▇ account.
The marketing team will be [***] that meet the funding requirements of ▇▇▇.▇▇▇. [***] will be mutually defined between ▇▇▇.▇▇▇ and Ingram within [***] of the effective date of this marketing agreement. Progress to assigned goal will be evaluated monthly by both parties. If specific, established goals are underachieved, ▇▇▇.▇▇▇ has a right to terminate the marketing agreement with 30 days advanced written notice to Ingram if Ingram fails to cure the underachievement within 30 days of the notice of termination.
The accomplishment of [***] will be measured by the [***] to ▇▇▇.▇▇▇ either through Ingram [***] secured by either Ingram or ▇▇▇.▇▇▇. All [***] currently secured and [***] will count towards the calculation of goal achievement.
Reporting on all pass through transactions, through Ingram, will be available and provided on a weekly basis to a designated contact at ▇▇▇.▇▇▇.
As an integral component of the marketing programs, the assigned associates will spend a mutually agreed upon length of time working at ▇▇▇.▇▇▇’s corporate location in order to acquire a full comprehension of ▇▇▇.▇▇▇ business model and available marketing vehicles. ▇▇▇.▇▇▇ will provide for adequate workspace for Ingram associates to facilitate vendor meetings and participate in training and informational updates on site at the ▇▇▇.▇▇▇ corporate location.
Facilitation of necessary training and the development of promotional collateral and sales tools will be a joint responsibility of Ingram and ▇▇▇.▇▇▇. Each party will bear its own expenses in the preparation of these materials. Responsibilities will include managing all marketing communications and activities related to the successful promotion and solicitation of ▇▇▇▇▇▇ Micro product marketing and purchasing associates and vendor partners in participation of ▇▇▇.▇▇▇ marketing vehicles. Specifically the marketing team will be chartered with the following responsibilities:
| • | Act as primary interface for overall marketing management |
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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| • | Act as point persons for product marketing managers, buyers, and ▇▇▇▇▇▇ Micro vendor partners with respect to ▇▇▇.▇▇▇ marketing programs |
| • | Coordinate product marketing and vendor training and presentations |
| • | Schedule and drive key meetings |
| • | Manage development, follow-up, and reporting of ▇▇▇.▇▇▇ activity solicitations |
| • | Act as point persons for ▇▇▇.▇▇▇ pass through approvals and credits |
| • | Understand ▇▇▇.▇▇▇’s business model, its position in the marketplace and end user market segments |
| • | Plan, develop, and coordinate necessary and approved marketing activities and opportunities as related to Ingram associates and vendor partners |
| • | Research, inquire, and develop channel of incremental funding from vendors in support of ▇▇▇.▇▇▇ marketing programs. |
As part of this marketing program, and for the duration of this marketing agreement, Ingram will charge a [***] secured on behalf of ▇▇▇.▇▇▇. This [***] will apply to all [***] secured by either ▇▇▇▇▇▇ Micro or ▇▇▇.▇▇▇ including new [***], upgrades, renewals and vendor advertising contracts changes. The [***] does not apply to contracts in place prior to this Agreement, except for the following vendors:
| Vendor | Contract Start Date | |
| 1. [***] | [***] | |
| 2. [***] | [***] | |
| 3. [***] | [***] | |
| 4. [***] | [***] | |
| 5. [***] | [***] | |
| 6. [***] | [***] | |
| 7. [***] | [***] | |
| 8. [***] | [***] |
The [***] will be utilized by Ingram to offset the costs associated with building the infrastructure and maintaining the resources required in providing marketing and sales services to ▇▇▇.▇▇▇
Ingram will collect the [***] via [***] upon receipt of an invoice and proof of performance provided by ▇▇▇.▇▇▇ and issuing a credit to ▇▇▇.▇▇▇ [***]. ▇▇▇.▇▇▇ will provide Ingram with a monthly report detailing [***]. Ingram will [***].
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
Page 11
▇▇▇▇▇▇ Micro Inc. Resale Agreement
EXHIBIT C
Documentation Requirements for Debits
[***]
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
Page 12
August 11, 1999
▇▇▇▇▇▇ ▇▇▇▇▇
Senior Vice President of Sales
▇▇▇▇▇▇ Micro, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
| Re: | Amendment to Resale Agreement |
Dear ▇▇▇▇▇▇:
This will amend the Resale Agreement between ▇▇▇▇▇▇ Micro, Inc. and ▇▇▇.▇▇▇ Inc. dated March 10, 1999 (the “Resale Agreement”). When signed on behalf of ▇▇▇▇▇▇ Micro Inc., Section 24 of the Resale Agreement will be replaced with the following:
| 24. | Term and Termination |
This Agreement will commence on the date of the last signature set forth below and will continue for one (1) year. Either party may terminate this Agreement without cause by giving one hundred twenty (120) days advance written notice to the other party. The termination provisions in Exhibit B shall apply only to Exhibit B and Clause 9 of this Agreement. Ingram may terminate this Agreement immediately for cause upon written notice, which notice will include a ten (10) day opportunity to cure. Unless and until either party provides at least 120 days prior written notice of its intention not to extend the term of this Agreement, this Agreement shall automatically renew for additional one (1) year term.
Except as amended by this letter agreement, the Resale Agreement will remain in full force and effect between our companies.
| Sincerely, |
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
| ▇▇▇▇ ▇▇▇▇▇▇▇ |
| Chief Executive Officer |
Accepted and Agreed this
day of , 1999.
| ▇▇▇▇▇▇ Micro, Inc. | ||
| By: | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Senior V.P. of Sales |
Resale Agreement – Amendment #2
▇▇▇▇▇▇ Micro Inc. (“Ingram”) and ▇▇▇.▇▇▇ Inc. (“▇▇▇.▇▇▇”) hereby agree to amend their mutual Resale Agreement, effective 10 March 1999, and any subsequent Amendments, as follows:
| 1. | Add new Page 14, Exhibit D dated 08/27/99 entitled ▇▇▇.▇▇▇ Post-it Note Program, attached hereto. |
This Amendment shall remain in effect for the current term and any renewal term of the Agreement.
Notwithstanding the foregoing, all other provisions of the Agreement remained unchanged. The undersigned has read this Amendment, agrees hereto, and is an authorized representative of its respective party.
This Amendment will become effective as of September 21, 1999.
| “▇▇▇.▇▇▇” | “Ingram” | |||||||
| ▇▇▇.▇▇▇ Inc. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ▇▇▇▇▇▇ Micro Inc. ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | By: | ||||||
| (Officer of the Company) | (Officer of the Company) | |||||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | Name: | ||||||
| (Please print or type) | (Please print or type) | |||||||
| Title: | VP, Sales Operations | Title: |
EXHIBIT D
▇▇▇.▇▇▇ Post-it Note Program
| 1. | Ingram and ▇▇▇.▇▇▇ agree to implement a process whereby ▇▇▇.▇▇▇ will provide Post-it Notes (“Notes”) to Ingram and Ingram will insert the Notes in each carton containing Products purchased by ▇▇▇.▇▇▇ from Ingram prior to shipment to ▇▇▇.▇▇▇ or ▇▇▇.▇▇▇’s customers from one of ▇▇▇▇▇▇’▇ distribution centers in accordance with the terms identified herein, |
| 2. | ▇▇▇.▇▇▇ shall ship a total of [***] packages of Notes to various Ingram distribution centers throughout the United States, F.O.B. destination, as specified below. |
[***]
| 3. | Ingram shall receive and warehouse the Notes provided by ▇▇▇.▇▇▇. |
| 4. | Upon ▇▇▇▇▇▇’▇ receipt and acceptance of a ▇▇▇.▇▇▇ order for Product, Ingram shall open each Product carton, insert a single pack of Notes in each carton and reseal the cartons prior to shipment. Ingram shall continue this process until all [***] packages of Notes have been shipped. |
| 5. | Ingram and ▇▇▇.▇▇▇ agree that in the event the process described above jeopardizes ▇▇▇▇▇▇’▇ ability to meet established service levels with ▇▇▇▇▇▇’▇ customers, Ingram is not obligated to continue this process until Ingram determines, at its sole discretion, that the process may be performed without jeopardizing such service levels. If Ingram suspends or terminates this process, and this suspension or termination continues for more than [***], Ingram will make commercially reasonable efforts to notify ▇▇▇.▇▇▇ of such suspension or termination. |
| 6. | Either party may terminate the process identified in this Exhibit D without cause upon ten (10) days prior notice to the other party. If the process is terminated prior to shipment of all [***] packages of Notes, Ingram shall make a pro-rata reduction in the amount due as specified in Section 6 below based on the actual quantity of Notes shipped. |
| 7. | In consideration for ▇▇▇▇▇▇’▇ implementation of the process described above, Ingram shall invoice and ▇▇▇.▇▇▇ agrees to pay Ingram the sum of [***]: |
[***]
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
Resale Agreement – Amendment #3
▇▇▇▇▇▇ Micro Inc. (“Ingram”) and ▇▇▇.▇▇▇ Inc. (“▇▇▇.▇▇▇”) hereby agree to amend their mutual Resale Agreement, effective 10 March 1999, and any subsequent Amendments, as follows:
| 1. | Replace Exhibit B, Marketing Agreement with Exhibit B dated 2/02/00, attached hereto. |
This Amendment shall remain in effect for the current term and any renewal term of the Agreement.
Notwithstanding the foregoing, all other provisions of the Agreement remained unchanged. The undersigned has read this Amendment, agrees hereto, and is an authorized representative of its respective party.
This Amendment will become effective as of January 1, 2000.
| “▇▇▇.▇▇▇” | “Ingram” | |||||||
| ▇▇▇.▇▇▇ Inc. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ▇▇▇▇▇▇ Micro Inc. ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| (Officer of the Company) | (Officer of the Company) | |||||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇ | Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| (Please print or type) | (Please print or type) | |||||||
| Title: | VP, Marketing & Advertising Sales | Title: | VP GM CMD | |||||
| Date: | 2/18/00 | Date: | 2/21/00 |
EXHIBIT B
Marketing Agreement
Ingram understands the demands and requirements that ▇▇▇.▇▇▇ has in order to meet its specific business objectives and future goals. ▇▇▇▇▇▇’▇ Consumer Markets Division (CMD) is committed to work with key contacts at ▇▇▇.▇▇▇ to facilitate an ease of doing business, increase communication between our companies and collaborate in meeting ▇▇▇.▇▇▇’s established marketing goals.
To achieve ▇▇▇.▇▇▇’s vendor funding goals, Ingram will commit to best efforts in working jointly with ▇▇▇.▇▇▇ in securing marketing related vendor pass-through funding based on [***] established by ▇▇▇.▇▇▇ and Ingram.
To effectively facilitate this agreement, Ingram will assemble and assign a qualified team of associates to manage all aspects of the Ingram and ▇▇▇.▇▇▇ marketing relationship. Ingram assigned associates will include a [***] ad sales team of Ingram Account Executives, and additional support on an as-needed basis such as a senior manager, a marketing manager, pass-through support and administration support. These associates, and the CMD management team, will work closely with the ▇▇▇.▇▇▇ sales team to initiate and drive marketing programs to [***]. Ingram will maintain a [***] for the assigned sales Account Executives. The [***] to the ▇▇▇.▇▇▇ team. Ingram currently has [***] from the date of ▇▇▇▇▇▇’▇ signature on the amendment that makes this Exhibit B effective.
The Ingram/▇▇▇.▇▇▇ sales and marketing team will be assigned [***] that meet the funding requirements of ▇▇▇.▇▇▇, as measured by Ingram fiscal quarter, as outlined below.
| Q1 | [***] | |
| Q2 | [***] | |
| Q3 | [***] | |
| Q4 | [***] |
[***]
Any changes to the [***] identified herein must be mutually agreed to between ▇▇▇.▇▇▇ and Ingram by written amendment to this Agreement.
This funding agreement is based on the [***] to ▇▇▇.▇▇▇ either through Ingram or directly to ▇▇▇.▇▇▇ [***] secured by either Ingram, ▇▇▇.▇▇▇ or any other source. Funding shall include all [***]. All [***] currently secured and [***] will count towards this funding agreement.
▇▇▇.▇▇▇ will prepare and forward to Ingram a monthly statement detailing current [***] and progress toward achievement of [***].
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
As part of this marketing program, Buy com agrees to pay Ingram [***]. This [***] will apply to all [***] secured by either Ingram or ▇▇▇.▇▇▇ including existing contracts, carryover contracts, new[***], upgrades, renewals and any [***] contract changes, The [***] payment schedule is based on [***] achievement and is as follows:
[***]
Ingram will collect the [***] by debiting ▇▇▇.▇▇▇’s account on a quarterly basis.
The [***] is based on covering the [***]. Ingram currently has [***] from the date of ▇▇▇▇▇▇’▇ signature on the amendment that makes this Exhibit B effective. This [***] will be considered as [***] to ▇▇▇.▇▇▇ since the beginning of Q1 2000 for the purposes of this Agreement. [***]. If the number of [***] to ▇▇▇.▇▇▇ as defined above should [***] will be reduced by [***] to ▇▇▇.▇▇▇ until [***]. The [***] will be calculated on a pro-rated basis for each working day after the initial [***].
Ingram will ensure processes and resources are in place to provide ▇▇▇.▇▇▇ with effective and timely processing of [***] approvals and credits. Reporting on all [***] transactions, through Ingram, will be available and provided on a weekly basis to a designated contact at ▇▇▇.▇▇▇.
Ingram intends to support ▇▇▇.▇▇▇ in developing strategic alliances with key decision-makers with authority over [***] in addition to actively acting in a sales agent role [***].
As an integral component of the program, the [***] associates will spend a mutually agreed upon length of time working at ▇▇▇.▇▇▇’s corporate location in order to acquire a full comprehension of ▇▇▇.▇▇▇ business model and available marketing vehicles. ▇▇▇.▇▇▇ will provide for adequate workspace for Ingram associates to facilitate vendor meetings and participate in trainings and informational updates on site at the ▇▇▇.▇▇▇ corporate location.
Facilitation of necessary trainings and the development of promotional collateral and sales tools will be a joint responsibility of Ingram and ▇▇▇.▇▇▇. Specifically the ▇▇▇.▇▇▇ CMD Marketing team will be chartered with the following responsibilities.
| • | Act as primary interface for overall Product Management |
| • | Act as point persons far Product Management associates [***] in respect to ▇▇▇.▇▇▇ marketing programs |
| • | Coordinate Product Management and vendor trainings and presentations |
| • | Develop and maintain a new vendor interaction program |
| • | Schedule and drive key meetings |
| • | Manage development, follow-up and reporting of ▇▇▇.▇▇▇ activity solicitations |
| • | Act as point persons for ▇▇▇.▇▇▇ [***] approvals and credits |
| • | Understand ▇▇▇.▇▇▇’s business model, its position in the marketplace and end user market segments |
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
2
| • | Plan, develop and coordinate necessary and approved marketing activities and opportunities as related to Ingram associates [***] |
| • | Research, inquire and develop channels of [***] in support of ▇▇▇.▇▇▇ marketing programs and identify and help recover additional [***] |
The ▇▇▇.▇▇▇ CMD Marketing associates are employees of Ingram, dedicated to implementing the ▇▇▇.▇▇▇/▇▇▇▇▇▇ marketing relationship. The associates will receive compensation and benefits as an Ingram employee and cannot accept incentives, bonuses or spiffs directly from ▇▇▇.▇▇▇.
The associates will report directly to a dedicated marketing associate and must abide by all policies and procedures as established in the Ingram employee handbook. Ingram will retain all hiring and termination decisions per ▇▇▇▇▇▇’▇ policies.
Either party may cancel this Exhibit B Marketing Agreement without cause at any time after 1 July 2000 upon thirty (30) day advance written notice to the other party.
| [***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
3
Resale Agreement – Amendment #4
▇▇▇▇▇▇ Micro Inc. (“Ingram”) and ▇▇▇.▇▇▇ Inc. (“▇▇▇.▇▇▇”) hereby agree to amend their mutual Resale Agreement, effective 10 March 1999, and any subsequent Amendments, as follows:
| 1. | Section 2.A. is modified as follows: |
A. ▇▇▇.▇▇▇ agrees that Ingram will be ▇▇▇.▇▇▇’s primary source for its Product requirements during the term of this Agreement.
This Amendment shall remain in effect for the current term and any renewal term of the Agreement.
Notwithstanding the foregoing, all other provisions of the Agreement remained unchanged. The undersigned has read this Amendment, agrees hereto, and is an authorized representative of its respective party.
This Amendment will become effective as of July 12, 2000.
| “▇▇▇.▇▇▇” | “Ingram” | |||||||
| ▇▇▇.▇▇▇ Inc. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ▇▇▇▇▇▇ Micro Inc. ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| (Officer of the Company) | (Officer of the Company) | |||||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| (Please print or type) | (Please print or type) | |||||||
| Title: | Chief Executive Officer | Title: | VP GM | |||||
| Date: | July 13, 2000 | Date: | 7/18/00 |