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Exhibit 10.37
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections
200.80(b)(4), 200.83 and 230.406
DISTRIBUTOR AGREEMENT
THIS AGREEMENT, dated this 21st day of September, 1993 (the "Effective Date"),
is between TECH DATA CORPORATION, a Florida corporation ("Tech Data"), and AT&T
PARADYNE ("AT&T PARADYNE").
W I T N E S S E T H:
WHEREAS, Tech Data desires to purchase certain Products from AT&T
PARADYNE from time to time; and
WHEREAS, AT&T PARADYNE desires to sell certain Products to Tech Data in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, AT&T PARADYNE 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 promises herein
contained and other good and valuable consideration, Tech Data and AT&T PARADYNE
hereby agree as follows:
ARTICLE I. TERM OF AGREEMENT
1.1 Term of Agreement During the term of this Agreement AT&T PARADYNE will
provide to Tech Data the Products so 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 will be automatically renewed for successive one (1) year
terms unless prior written notification of nonrenewal is received at
least sixty (60) days prior to the renewal date.
1.2 AT&T PARADYNE manufacturers, produces, and/or supplies microcomputer
products and desires to grant to Tech Data the right to sell and
distribute certain of those products, as hereinafter defined, upon the
terms and conditions set forth below. Tech Data is engaged in the sale
and distribution of microcomputer products and desires to have the
right to sell and distribute AT&T PARADYNE's products upon said terms
and conditions.
In consideration of the mutual covenants and agreements set forth
below, the parties hereto agree as follows:
1.3 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.
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(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 as
appropriate, hardware, licensed software, Documentation,
developed Products, supplies, accessories, and other
commodities related to any of the foregoing, provided or to be
provided by AT&T PARADYNE pursuant to this Agreement.
(d) "Standard Products" shall mean Products requiring no
changes, alterations, or additions, from those Products
customarily offered by AT&T PARADYNE, described in brochures
and by exhibits.
(e) "Customized Products" shall mean any Products AT&T
PARADYNE must purchase requiring AT&T PARADYNE to perform
changes, alterations, assembly, additions or special packaging
prior to shipping to Tech Data, as described in brochures and
by exhibits.
(f) "Territory" shall mean the United States of America and
its territories and possessions, and Canada.
(g) "Customers" of Tech Data shall include dealers, resellers,
value added resellers and other similar Customers, but shall
not include End Users unless specifically set forth in an
addendum to the Agreement.
(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 AT&T PARADYNE.
(j) "Retailer" shall mean any person or entity who sells any
Product to end-users.
(k) "Vendor Non-Affiliated Purchasers" shall mean any person
or entity that purchases the Products from AT&T PARADYNE for
sale to Retailers that is not affiliated with AT&T Corporation
or any AT&T subsidiary.
(l) "Return Price" for any unit of Product shall mean the
amount originally billed Tech Data for such unit less any
rebates or amounts with respect to such unit actually paid or
credited by AT&T PARADYNE to Tech Data, but shall not include
any deductions or offsets for cash, prepaid or early paid
discounts.
1.4 Appointment an Distributor. AT&T PARADYNE hereby grants to Tech Data
the non-exclusive right to distribute Products during the term of this
agreement within the Territory as herein defined. AT&T PARADYNE
reserves the right to appoint other authorized distributors Tech Data
will use its best efforts to promote sales of the Products within the
Territory.
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ARTICLE II. PURCHASE ORDERS
2.1 In the event that AT&T PARADYNE shall (i) sell any additional Product
not set forth on Exhibit A, or (ii) introduce a new version or
materially change the specifications or packaging of, or discontinue
any Product, AT&T PARADYNE shall use reasonable efforts to notify Tech
Data, not less than thirty (30) days in advance of such an event and,
in any event, at least as quickly as AT&T PARADYNE notifies any other
reseller.
2.2 Issuance and Acceptance of Purchase Orders. Tech Data may purchase and
AT&T PARADYNE shall sell to Tech Data, Products as described below:
(a) Tech Data may issue to AT&T PARADYNE one or more purchase
orders identifying the Products Tech Data desires to purchase
from AT&T PARADYNE. 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. Purchase orders
may be placed by Tech Data by fax or electronically
transferred.
(b) A Purchase Order shall be deemed accepted by AT&T PARADYNE
unless AT&T PARADYNE notifies Tech Data in writing within ten
(10) days after receiving the Purchase Order that AT&T
PARADYNE does not accept the Purchase Order.
(c) AT&T PARADYNE shall accept Purchase Orders 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 AT&T PARADYNE of any and all such
transactions in writing within sixty (60) days after the
termination date.
(d) The 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. Fifteen (15) days prior to
shipment of Standard Products, AT&T PARADYNE shall accept an alteration
or cancellation to 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. Tech Data
may not alter or cancel any Purchase Order for Customized Products
after such time as the Products have been altered to a point where such
Products are no longer capable of resale by AT&T PARADYNE after
reasonable efforts.
2.4 At the request of Tech Data, AT&T PARADYNE shall consign to Tech Data a
reasonable number of demonstration units of the Product to aid Tech
Data and its sales staff in the support and promotion of the Product.
All units consigned will be returned to AT&T PARADYNE in good
condition, reasonable wear and tear excepted, when requested by AT&T
PARADYNE at any time eleven (11) months after delivery to Tech, Data.
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2.5 Product Shortages. AT&T PARADYNE agrees to maintain sufficient Product
inventory to permit it to fill Tech Data's orders as required herein.
If a shortage of any Product in AT&T PARADYNE's inventory exists in
spite of AT&T PARADYNE's good faith efforts, AT&T PARADYNE agrees to
allocate its available inventory of such Product to Tech Data in
proportion to Tech Data's percentage of all ATM customer orders for
such Product during the previous twelve (12) months.
ARTICLE III - DELIVERY AND
ACCEPTANCE OF PRODUCTS
3.1 Subsidiaries. AT&T PARADYNE understands and acknowledges that Tech Data
may obtain Products in accordance with this Agreement for the benefit
of subsidiaries of Tech Data. Upon prior approval from AT&T PARADYNE
subsidiaries of Tech Data shall be entitled to obtain Products directly
from AT&T PARADYNE 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, overshipments will be
returned to AT&T PARADYNE at AT&T PARADYNE's expense (including costs
of shipment) 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.
Tech Data shall have the ability to return for credit products which
have boxes that are or become damaged. An offsetting purchase order
will be placed for all bad box returns. In addition, AT&T PARADYNE 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 AT&T PARADYNE's published
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. All freight charges
for returned Products will be paid by Tech Data or Tech Data's Customer.
3.4 Transportation of Products. AT&T PARADYNE 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 to Products shall be paid by AT&T
PARADYNE. AT&T PARADYNE 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.
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3.5 Title and Risk of Loss. AT&T PARADYNE shall ship Product only pursuant
to Tech Data's published routing instructions or purchase orders
received by AT&T PARADYNE. Product shall be shipped F.O.B. Tech Data's
warehouse with title and risk of loss or damage to pass to Tech Data
upon shipment by AT&T PARADYNE to the warehouse designated on Tech
Data's purchase order. The foregoing notwithstanding, all
transportation, insurance and handling charges for any Products so
shipped shall be borne by AT&T PARADYNE.
3.6 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) AT&T PARADYNE shall amend to Tech Data and each Customer
of Tech Data the same warranties and indemnifications, with
respect to Products purchased and resold hereunder as AT&T
PARADYNE extends to its end-user Customers. The term of
warranties and indemnities extended by AT&T PARADYNE to an End
User shall commence upon delivery of the Product to the End
User.
(b) AT&T PARADYNE shall support the Product and any efforts to
sell the Product by Tech Data, and provide sales literature,
advertising materials and reasonable training and support in
the sale and use of the Product to Tech Data's employees and
Customers, if requested by Tech Data. AT&T PARADYNE also
agrees to provide Tech Data telephone support representative
at no charge during AT&T PARADYNE's normal business hours.
AT&T PARADYNE agrees to provide Tech Data's customers
telephone representatives at no charge, Monday through Friday
9:00 am to 8:00 pm EST.
(c) AT&T PARADYNE shall provide [***] to Tech Data and the
Customers of Tech Data, sales training, marketing support,
advertising materials and technical training in connection
with the resale of Products as are currently offered or that
may be offered by AT&T PARADYNE. Tech Data reserves the right
to [***].
(d) As reasonably necessary and upon mutual agreement, Tech
Data will make its facilities available for, and will assist
AT&T PARADYNE in providing, Product training and support.
(e) Tech Data may advertise and promote the Product and/or
AT&T PARADYNE in a commercially reasonable manner and may use
AT&T PARADYNE's trademarks, service marks and trade names in
connection therewith; provided that, Tech Data shall submit
the advertisement or promotion to AT&T PARADYNE for review and
approval prior to its initial release, which approval shall
not be unreasonably withheld or delayed. Copies of any
proposed publication containing any such xxxx, name or logo
shall be submitted to AT&T PARADYNE for review and approval,
and Tech Data shall make reasonable commercial efforts to
obtain AT&T PARADYNE's approval at least thirty (30) days
prior to publication.
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(f) AT&T PARADYNE shall clearly xxxx each unit package with
the serial number, product description and machine readable
bar code (employing ISBN or other industry standard bar code)
approved in writing by Tech Data.
3.7 Inventory Adjustment. Notwithstanding anything else to the contrary in
this Agreement, at any time during the term of this Agreement Tech Data
may return to AT&T PARADYNE Products with an aggregate return price
equal to [***] of the total aggregate purchase price of Products
delivered to Tech Data during the year [***]. Tech Data shall obtain a
AT&T PARADYNE issued Return Equipment Authorization ("REA") number,
which shall not be unreasonably withheld, for all Product returned
under this Section 3.7, and shall accompany all such returns with an
order for Product in an amount equal to [***]. Upon receipt of such
Products, AT&T PARADYNE shall credit Tech Data with an amount equal to
[***]. To be eligible for such a return, Product must be in its
original, unopened package. All freight charges for returned Products
will be paid by Tech Data.
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 or AT&T PARADYNE discontinues or are removed from AT&T
PARADYNE's current price list; provided Tech Data returns such Products
within ninety (90) days after Tech Data receives written notice that
such Products are obsolete, discontinued or are removed from AT&T
PARADYNE's price list.
3.8 Time of Performance. Time is hereby expressly made of the essence with
respect to each and every term and provision of this agreement, except
for delivery dates which are estimates only.
3.9 Quality Control. AT&T PARADYNE shall test and inspect Products prior to
shipment. AT&T PARADYNE's standard inspection records, and a report
setting forth product defect percentage rates are to be maintained by
AT&T PARADYNE and made available to Tech Data upon request with
reasonable notice or, at the option of Tech Data, on a quarterly basis.
ARTICLE IV. WARRANTIES,
INDEMNITIES AND LIABILITIES
4.1 Warranty. Tech Data may return any Product which it or any of it's
Customer's finds to be defective in workmanship or material for credit
in the amount of the Return Price of such Product. AT&T PARADYNE shall
indemnify and hold Tech Data, its subsidiaries, harmless from and
against all 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. All transportation charges for Product so returned shall be
borne by Tech Data.
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AT&T PARADYNE hereby represents and warrants that the Products do and
will conform to all codes, laws or regulations of any governmental
agency. AT&T PARADYNE provides a warranty to end users who purchase the
Product. Such warranty is included in the Product package. Such
warranty is not in lieu of Tech Data's rights within Section 4.1 above,
and shall not be considered to be AT&T PARADYNE's warranty to Tech Data
or Tech Data's Retailers. SUCH WARRANTIES TO THE END USER ARE IN LIEU
OF ALL OTHER WARRANTIES TO THE END USER, EXPRESS OR IMPLIED, EITHER IN
FACT OR BY AN OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE OR INTENDED PURPOSE.
AT&T PARADYNE NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME
FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION OR
USE OF ITS PRODUCTS, NOR MAKES ANY WARRANTY WHATSOEVER FOR ANY
NON-STANDARD PRODUCT ORDERED BY TECH DATA HEREUNDER. IN NO EVENT WILL
AT&T PARADYNE HAVE ANY OBLIGATION OR LIABILITY FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF
REVENUE, PROFIT OR BUSINESS) SUSTAINED BY TECH DATA OR THE COST OR
COVER ARISING FROM OR OTHERWISE RELATED TO THE PRODUCTS OR THIS
AGREEMENT. The foregoing limitation shall not limit AT&T PARADYNE's
obligation to defend and hold harmless Tech Data against certain third
party claims as provided herein.
In the event AT&T PARADYNE recalls any or all of the Products due to
defects, revisions, or upgrades, Tech Data shall provide reasonable
assistance in such recall; provided that, AT&T PARADYNE shall pay all
of Tech Data's expenses in connection with such.
4.2 Proprietary Rights Indemnification. AT&T PARADYNE hereby represents and
warrants that AT&T PARADYNE 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. AT&T
PARADYNE shall indemnify and hold Tech Data, Tech Data's related and/or
subsidiary companies, Tech Data's Customers and End Users 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
AT&T PARADYNE'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 AT&T PARADYNE. AT&T PARADYNE shall
defend and settle, at its expense, all suits or proceedings arising
therefrom. Tech Data shall inform AT&T PARADYNE 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
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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
or in Tech Data's opinion is likely to be sought or obtained, AT&T
PARADYNE 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 Product to make its use non-infringing
while being capable of performing the same function without degradation
of performance. AT&T PARADYNE shall have no liability under this
Section for any infringement based on the use of any equipment or
software, if the equipment or software is used in a manner or with
equipment for which it was not reasonably intended, or if the equipment
or software is used in an infringing process. AT&T PARADYNE's
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 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 Xxxxxxx'x
Compensation insurance on its employees.
(b) Without in any way limiting AT&T PARADYNE's indemnification
obligations as set forth in this Agreement, AT&T PARADYNE shall
maintain Comprehensive General Liability (Bodily Injury and Property
Damage) Insurance in such amounts as is set forth on the attached
certificate of insurance, including the following supplementary
coverage:
(1) Personal Injury Liability with "employee" and
"contractual" exclusions deleted;
(2) Product and Completed Operations Liability;
(3) AT&T PARADYNE shall provide certificates of all
coverage to Tech Data naming Tech Data as additional
insured and requiring ten (10) days prior notice to
Tech Data before termination of any such insurance.
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.
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4.6 Unauthorized Representations. Tech Data shall have no authority to
alter or extend any of the warranties of AT&T PARADYNE expressly
contained or referred to in this Agreement without prior approval of
AT&T PARADYNE.
4.7 Continuing Availability of Parts. AT&T PARADYNE agrees to offer for
sale to Tech Data for the purpose of warranty or resale to its
Customers during the term of this Agreement for a period of five (5)
years after the expiration of this Agreement, functionally equivalent
maintenance, replacement and repair parts for all Products sold to Tech
Data.
4.8 Disclaimer of Warranties. AT&T PARADYNE has made expressed warranties
in this Agreement and in documentation, promotional and advertising
materials. EXCEPT AS SET FORTH HEREIN OR THEREIN, AT&T PARADYNE
DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS.
ARTICLE V. PAYMENT TO AT&T PARADYNE
5.1 Changes, Prices and Fees for Products. The price and applicable
discount, if any, for the Product shall be as set forth in Exhibit A.
Tech Data shall not be bound to sell Product to its customers at any
prices suggested by AT&T PARADYNE.
5.2 Most Favored Pricing and Terms. The Discounts and Payment Terms for the
Products now or hereafter set forth on Exhibit A shall [***] of such
Product who purchases Product for resale. It is acknowledged by both
parties hereto that AT&T PARADYNE shall [***]. The offer may be with
specific regard to, though not limited to, Purchase Price of Product,
Payment Terms, inventory protection, allocation of available Products,
or availability of special funding for special projects or programs.
5.3 Price Increase. AT&T PARADYNE shall have the right to change the list
price of any Product upon giving thirty (30) days' prior written notice
to Tech Data. In the event that AT&T PARADYNE shall raise the list
price of a Product, [***].
5.4 Price Decrease. In the event AT&T PARADYNE reduces the price of any
Product or offers the Product at a lower price, including raising the
discount offered, to any other like Purchaser, AT&T PARADYNE shall
provide thirty (30) days prior written notice and [***]. AT&T will also
credit Tech Data for the difference between the invoice price charged
to Tech Data and the reduced price for each unit of Product held in
inventory by Tech Data's customers on the date the reduced price is
first offered by AT&T PARADYNE provided Tech Data's customers request
is received by AT&T PARADYNE within sixty (60) days from the time the
reduced price is first offered and is accompanied by reasonable
commercial documents.
5.5 Payment. Terms of payment for any order shall be net thirty (30) days;
except for Tech Data's initial order for any Product, for which payment
shall be due ninety (90) days from date of the applicable invoice and
Tech Data may return any of the initial order for credit
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within ninety (90) days of delivery of the initial order to Tech Data.
AT&T PARADYNE shall invoice Tech Data no earlier than the applicable
shipping date for the Products covered by such invoice.
Notwithstanding any other provision in this Agreement to the contrary,
Tech Data shall not be deemed in default under this Agreement if it
withholds any payment to AT&T PARADYNE because of legitimate dispute
between the parties so long as the amount withheld is not greater than
the disputed amount.
5.6 Taxes. Tech Data's Purchase Price [***] that may be applicable to the
Products. When AT&T PARADYNE has the legal obligation to collect such
taxes, [***].
5.7 For each Product shipment to Tech Data, AT&T PARADYNE shall issue to
Tech Data an invoice showing Tech Data's order number and the Vendor
Product model number, description, price and any discount. At least
monthly AT&T PARADYNE shall provide Tech Data with a current statement
of account.
5.8 Tech Data shall provide to AT&T PARADYNE a monthly sales out report of
the total dollar volume and number of units of Products shipped by Tech
Data, sorted by zip code, within fifteen (15) days of the close of the
month.
5.9 Advertising Credit. AT&T PARADYNE agrees to cooperate with Tech Data in
advertising and promoting the Product and/or AT&T PARADYNE and hereby
grants Tech Data a [***] of invoice amounts for Product purchased by
Tech Data from AT&T PARADYNE to the extent that Tech Data uses the
[***]. Tech Data will provide a copy of AT&T PARADYNE's prior approval
and proof of performance for promotional programs, and Tech Data will
provide AT&T PARADYNE a copy of Tech Data's Co-op policy and
guidelines. AT&T PARADYNE may from time to time at its sole discretion
separately authorize Tech Data to conduct advertising and other
activities and may agree at that time to pay the costs thereof from
funds outside of the allowance granted in the preceding sentence.
Invoices rendered hereunder shall be paid by AT&T PARADYNE within
thirty (30) days of invoice date. In the event AT&T does not make such
payment within thirty (30) days after invoice date, Tech Data shall
provide AT&T PARADYNE with thirty (30) days notice of its intent to
deduct such amount from any amounts due AT&T PARADYNE hereunder. In the
event AT&T PARADYNE has not made such payment following the expiration
of such thirty (30) day notice, Tech Data shall have the right to
deduct such amount from any amounts due AT&T PARADYNE under this
Agreement.
5.10 Tech Data shall provide AT&T PARADYNE a ninety (90) day forecast of
anticipated sales on a monthly basis. Forecast shall not be considered
firm commitments on the part of Tech Data to purchase any Products.
ARTICLE VI. TERMINATION
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6.1 Termination. Either party may terminate this Agreement upon (a) sixty
(60) days written notice to the other following any material breach or
omission by the other with respect to any term, representation,
warranty, condition or covenant hereof and (b) the failure of such
other party to cure such breach or omission prior to the expiration of
a sixty (60) day period.
6.2 For the purpose of this Agreement, a party shall be in default if (a)
it materially breaches a terms of this Agreement and such breach
continues for a period of thirty (30) business days after it has been
notified of the breach, or (b) it shall cease conducting business in
the normal course, become insolvent, make a general business assignment
for the benefit of its creditors, suffer or permit the appointment or a
receiver for its business or assets, or shall avail itself of or become
subject to any proceeding under the Federal Bankruptcy Act or any other
federal or state statue relating to insolvency or the protection of
rights of creditors.
6.3 Rights Upon Termination. Termination of any Purchase Order or this
Agreement shall not affect AT&T PARADYNE's right to be paid for
undisputed invoices for Products already shipped. The termination of
this Agreement shall not affect any of AT&T PARADYNE'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 cut as a distributor of AT&T
PARADYNE'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 AT&T PARADYNE.
6.4 Repurchase of Products Upon Termination. Tech Data may return any
Product in its inventory to AT&T PARADYNE for credit against
outstanding invoices, or for cash refund if there are no invoices then
outstanding, within sixty (60) days following the termination of this
Agreement. In such event, AT&T PARADYNE shall issue a Return Equipment
Authorization (REA) number to Tech Data for all such Products. Any
credit or refund due Tech Data for returned product shall be equal to
the purchase price of the Product, less any discounts or credits
previously received, but shall not include any deduction or offset for
prepaid or early pay discounts. Such returns shall not reduce or offset
any co-op payments or obligations owed to Tech Data
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.
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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 AT&T PARADYNE. 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, its subsidiaries, or Customers, 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 in Pinellas County, Florida
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 mad, return receipt requested, postage prepaid, and
addressed as follows:
In the case of AT&T PARADYNE: In the Case of Tech Data:
---------------------------- ------------------------
AT&T Paradyne Tech Data Corporation
0000 000xx Xxxxxx Xxxxx 0000 Xxxx Xxxx Xxxxx
Xxxxx, XX 00000-0000 Xxxxxxxxxx, Xx 00000
Attn: Vice President and General Attn: Xxxxxxxx X. Xxxxxx
Manager of Personal Director of Marketing Operations
Communications Technology cc: Xxxx X. Xxxxxxxx
cc: Corporate Secretary 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. In the event that performance by a party under this
Agreement is precluded or adversely materially affected because of the
occurrence of an event,
13
unforeseen development, or contingency beyond the control of such
party, the rights and obligations of such party shall be governed by
this provision.
For the purpose of this Agreement, an event, an unforeseen development,
or contingency beyond the control of the party shall include, but shall
not be limited to, the following: war, declared or undeclared,
revolution, insurrection, counter revolution, isolated instances of
violence, labor or material shortages, fire, flood, xxxxx, xxxxxxx,
riots, civil commotion, acts of God including (but not limited to)
lightening, severe weather, earthquakes or other acts of nature, acts
of public enemy, prohibition of import or export of goods covered
hereby, governmental orders, regulations, restrictions, and all other
similar causes.
Each party shall be excused from any failure to perform any obligation,
except for the payment of uncontested invoices by Tech Data, hereunder
to the extent such failure is caused by the foregoing causes. Any
suspension of the performance by reason of this provision shall be
limited to the period during which the cause or the related effect of
failure exists, and such suspension shall not affect the running of the
time period provided for in this Agreement.
(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 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
ninety (90) 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. In the event any provision of
this Agreement call/allow for Tech Data to return Product to AT&T
PARADYNE as described here, Tech Data will obtain an Return Equipment
Authorization (REA) number from AT&T which will be issued within five
(5) working days of Tech Data's request; however, if the REA is not
received within five (5) business days, AT&T PARADYNE shall accept
returned Products absent an REA. The net purchase price, minus any
adjustments of such Products returned to AT&T PARADYNE 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 AT&T PARADYNE require that
AT&T PARADYNE 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 AT&T PARADYNE. In such
event, Tech Data shall be entitled to deduct any such credits from the
red monies owed to AT&T PARADYNE. In the event credits exceed any
balances owed by Tech Data to AT&T PARADYNE, then AT&T PARADYNE shall
upon receipt of Tech Data's request accompanied by valid supporting
documentation from Tech Data,
14
pay Tech Data the amount of such credit within thirty (30) days of
AT&T's receipt of such request.
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 AT&T PARADYNE 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.
7.16 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.
7.17 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.
7.18 Software Licenses. Whenever the Products described in this Agreement
shall include software licenses, AT&T PARADYNE hereby grants to Tech
Data a nonexclusive license to market, demonstrate and distribute the
software to Customers of Tech Data. Tech Data agrees to comply with
AT&T PARADYNE's reasonable software license agreements, and agrees to
use reasonable efforts to protect AT&T PARADYNE's software, including
using reasonable efforts to avoid allowing Customers, individuals, or
employees to make any unauthorized copies of AT&T PARADYNE's licensed
software; to modify, disassemble or decompile any software; to remove,
obscure or after any notice
15
of patent, trademark, copyright or trade name; or authorize any person
to do anything that Tech Data is prohibited from doing under this
Agreement. Provided, however, AT&T PARADYNE shall provide Tech Data
with copies of appropriate software and documentation, at no charge,
for the purpose of effectively demonstrating equipment to Customers.
This demonstration software shall be updated as appropriate to insure
that current software is available for sales demonstration. Tech Data
acknowledges that no title or ownership of the proprietary rights to
any software is transferred by virtue of this Agreement. Tech Data will
use reasonable efforts to protect AT&T PARADYNE's rights under this
section but Tech Data is not authorized and shall not be required to
instigate legal action on behalf of AT&T PARADYNE or its suppliers
against third parties for infringement. Tech Data will notify AT&T
PARADYNE of any infringement of which it has actual knowledge.
7.19 International Business. AT&T PARADYNE 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 order into additional agreements between
AT&T PARADYNE 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.
7.20 Compliance with U.S. Export Regulations and Other Laws. Tech Data shall
comply with the rule and regulation under the U.S. Export
Administration Act, the U.S. Anti-Boycott provisions, and the U.S.
Foreign Corrupt Practices Act, as well as all of the applicable U.S.
federal, state and municipal statues, rules and regulations.
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.
AT&T PARADYNE TECH DATA CORPORATION
By: /s/ Xxxx Xxxxxx Xxxxxxxx By: /s/ Xxxxx X Xxxxxxxx
Printed Name: Xxxx Xxxxxx Xxxxxxxx Printed Name: XXXXX X XXXXXXXX
Title: Vice President and General Title: Senior Vice President
Manager Marketing
Personal Communications
Technology
Date: Date: 4/29/93
16
ATTACHMENT A
TECH DATA/AT&T PARADYNE
PRICE LIST
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DATAPORT LIST PRICE
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[***] [***] [***]
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* Confidential Treatment Requested
1.
17
AT&T
LAUNCH PLAN
October - November 1993
OBJECTIVES
To introduce and gain mind share for the AT&T modem products within Tech Data's
sales force, Var, and Reseller customer base.
INTERNAL ACTIVITIES
SALES TRAINING - Cost $250
Sales Training will take place during the month of December. The format will be
four one hour sessions. We request creation and handout of a quick reference
guide including product specifications and Tech Data part numbers along with
literature of you products.
PORTABILITY PROMOTION - Cost $8,000
In October Tech Data will have a month long company wide promotion with a
theme centered around portability. Participation would give you great exposure
within Tech Data.
EXTERNAL ACTIVITIES
DIRECT MAIL - $4,000
A 2-color direct mail piece will be produced and sent to Tech Data's top 10,000
customers, introducing the complete line of AT&T modems. Target date for
mailing approximately 30 days after contract completion, and initial order is
placed. The direct mail piece can include a dealer introductory offer.
DEALER INCENTIVE - Cost $5,000 est
Included in the CRN ads and the direct mail piece. An example would be two
modems - get a third for $50 off.
JUST THE FAX - Cost $1,000
Depending on timing of the launch, one inclusion in Tech Data's automated fax
service announcing AT&T as a new vendor. Distributed to our top $4,000
customers.
ON-HOLD MESSAGE - Cost $400
On Tech Data's automated telephone system, customers listen to promotions,
special prices, as well as product announcements. We would like to include AT&T
for September.
TECH DATA CATALOG - Cost $6,000
Full Page, Compatibility chart, B&W
COST SUMMARY
Internal Sales Training $250
Portability Promotion $8,000
External Direct Mail $4,000
Dealer Incentive $5,000
Just The Fax $1,000
On-Hold Message $400
Tech Data Catalog $6,000
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$24,650
1.
