ASSIGNMENT, ASSUMPTION, RENEWAL, AND MODIFICATION AGREEMENT
BETWEEN XEROX IMAGING SYSTEMS, INC., SCANSOFT, INC.,
AND TECH DATA PRODUCT MANAGEMENT, INC.
THIS ASSIGNMENT. ASSUMPTION, RENEWAL AND MODIFICATION AGREEMENT (hereinafter the
"Assignment) by and between XEROX IMAGING SYSTEMS, INC., a Delaware corporation,
(hereinafter the "Xerox") with its principal corporate address at 0 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, SCANSOFT, INC., a DELAWARE corporation.
(hereinafter the "ScanSoft") with its principal corporation, address at 0
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 and TECH DATA PRODUCT MANAGEMENT,
INC., a Florida corporation (hereinafter the Distributor) with its principal
corporate address at 0000 Xxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
RECITALS
A. Xerox and Tech Data Corporation entered into a Software Distribution
Agreement on August 26, 1995, a copy of which is attached as Exhibit
A, which was assigned to Distributor an January 1, 1997 (the
"Distribution Agreement").
B. ScanSoft is a wholly owned subsidiary of Xerox.
C. Xerox desires to assign all of its rights, title, interest and
obligations In the Distribution Agreement to ScanSoft and ScanSoft
desires to assume all of the rights, title, interest and obligations
from Xerox and to modify the Distribution Agreement at provided in
this Assignment.
D. As consideration for Distributor's agreeing to assign the Distribution
Agreement. Distributor is requiring Xerox to guarantee the performance
of ScanSoft under the Distribution Agreement, and Xerox has agreed to
guarantee said performance.
E. Distributor is willing to consent to the Assignment by Xerox and the
assumption by ScanSoft and modify the Distribution Agreement pursuant
to the terms this Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals, the mutual convenants
contained herein and other good and valuable consideration, the parties agree as
follows:
1. RECITALS:
--------
The Recitals are true and correct and are hereby incorporated into
this Assignment.
2. ASSIGNMENT:
----------
Xerox does hereby sell, assign, and transfer to ScanSoft all of
Xerox's rights, title, interest and obligations In and to the
Distribution Agreement and ScanSoft hereby assumes all of the rights,
title, interest and obligations under the Distribution Agreement.
3. PAYABLE:
-------
Xerox and ScanSoft hereby direct Distributor to make payment of all
outstanding amounts due to ScanSoft, Inc., g Centennial Drive.
Xxxxxxx. XX 00000 subject to any offsets, credits or other amounts due
to Distributor from Xerox or ScanSoft.
4. RENEWAL:
-------
This Assignment renews and brings current the Distribution Agreement
dated August 26. 1995 which shall remain in full force and effect as
amended and modified herein.
5. MODIFICATION:
------------
Pursuant to this Assignment, the Distribution Agreement is hereby
amended and modified as follows:
a. All references to Xerox Imaging Systems, Inc. ("XEROX IMAGING) in
the Distribution Agreement shall be construed to be a reference to
ScanSoft, Inc. ("ScanSoft");
b. Section 1.1 of the Distribution Agreement Is hereby revised in its
entirety to read as follows:
TERM OF THE AGREEMENT The term of this Agreement shall
commence on August 26, 1995 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 from Effective
Date, and will automatically renew for successive one (1) year
terms unless prior written notification of termination Is
delivered by one of the parties to the other in accordance
with the notice provision of this Agreement.
c. Section 1.4 Is hereby added to read as follows:
1.4 APPOINTMENT AS DISTRIBUTOR. ScanSoft hereby grants to Tech
Data the non-exclusive right to distribute Products within the
Territory during the term of this Agreement. This Agreement
does not grant ScanSoft or Tech Data an exclusive right to
purchase or sell Products and shall not prevent either party
from developing or acquiring other vendors or customers or
competing Products. Tech Data will use commercially reasonable
efforts to promote sales of the Products. ScanSoft agrees that
Tech Date may obtain Products in accordance with this
Agreement for the benefit of its parent, affiliates and
subsidiaries of Tech Data. Said parent, affiliates and
subsidiaries of Tech Data shall be entitled to order Products
directly from ScanSoft pursuant to this Agreement.
d. The second paragraph of Section 3.8 of the Distribution Agreement
is hereby revised in its entirety to read as follows:
In addition. Tech Data shall have the right to return for
Return Credit, without limitation as to the dollar amount, all
Products that become obsolete or ScanSoft discontinues or are
removed from ScanSoft's current price list; provided Tech Data
returns such Products within sixty (60) days after Tech Data
receives written notice from ScanSoft that such Products are
obsolete, superseded by a newer version, discontinued or are
removed from ScanSoft's price list. Tech Data shall also be
entitled to return any such obsolete or discontinued Products
to ScanSoft which are returned to Tech Data by its Customers
within one-hundred-eighty (180) days of receipt of ScanSoft's
written notice.
e. Section 5.5 of the Distribution Agreement is hereby revised in its
entirety to read as follows:
PRICE DECREASES ScanSoft shell have the right to decrease
prices from time to time, upon prior written notice to Tech
Data. ScanSoft shall grant to Tech Data, its parent,
affiliates and subsidiaries and Tech Data's Customers s price
credit for the full amount of any ScanSoft price decrease on
all Products on order. In transit and In their Inventory on
the effective date of such price decrease. Tech Data shall,
within sixty (60) days after receiving written notice of the
effective date of the price decrease, provide a list of all
Products for which they claim a credit, and within
one-hundred-twenty (120) days, will provide a list of all
Products
which its Customer, claim price protection credits.
ScanSoft shall have the right to a reasonable audit at
ScanSoft's expense.
f. Section 6.4 of the Distribution Agreement is hereby revised in its
entirety to read as follows;
REPURCHASE OF PRODUCTS UPON TERMINATION OR EXPIRATION. Upon
the effective date of termination or expiration of this
Agreement for any reason, ScanSoft agrees to repurchase all
Products in Tech Data's inventory (the value of which may not
exceed the dollar volume of purchases during the previous
one-hundred-eighty (180) days) and Products which are returned
to Tech Data by its Customers within one hundred eighty (180)
days following the effective date of termination or
expiration. ScanSoft will repurchase such Products at the
original purchase price, less any deductions for price
protection. The repurchase price shall not be reduced by any
deductions or offsets for early pay or prepay discounts. Such
returns shall not reduce or offset any co-op payments or
obligations owed to Tech Data. Within sixty (60) days
following the effective date of termination or expiration,
Tech Data shall return to ScanSoft for repurchase all Product
held in Tech Data's inventory as of the effective date of
termination or expiration. Additional returns shall be sent at
reasonable intervals thereafter, provided all returns of
Product by Tech Data under this Section 7.3 shall be shipped
within one hundred eighty five (185) days following the
effective date of termination or expiration. ScanSoft will
issue an RMA to Tech Data for all such Products; provided,
however, that ScanSoft shall accept returned Products in
accordance with this Section absent an RMA if ScanSoft fails
to issue said RMA within five (5) business days of Tech Data's
request. ScanSoft shall credit any outstanding balances owed
to Tech Data. If such credit exceeds amounts due from Tech
Data, ScanSoft shall remit in the form of a check to Tech Data
the excess within ten (10) business days of receipt of the
Product. Customized Products shall not be eligible for
repurchase pursuant to this Section.
g. Section 7.7 of the Distribution Agreement is hereby revised in its
entirety to read as follows:
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 actually delivered by hand, by
telecopier, via overnight courier or when mailed by registered
or certified mall, return receipt requested, postage prepaid.
and addressed as follows:
IN THE CASE OF SCANSOFT: IN THE CASE OF TECH DATA:
---------------------------------------------------
ScanSoft, Inc. Tech Data Product Management, Inc.
0 Xxxxxxxxxx Xxxxx 0000 Xxxx Xxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxx X'Xxxxxx Attn: Xxxxx Xxxx
Contracts Manager Vice President of Marketing
Operations
cc: Contracts Administration
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.
8. GUARANTEE.
---------
Xerox hereby gives Distributor its continuing, absolute and
unconditional guaranty of the payment In full when due, by
acceleration or otherwise, of all of payment obligations under the
Distribution Agreement, and the performance of any and all present or
future obligations of ScanSoft to Distributor to the same extent as if
Xerox were the principal obilgor of such obligations. Xerox agrees to
so pay and perform in accordance with the terms of the Distribution
Agreement without requiring Distributor to exercise, pursue or enforce
any
right or remedy Distributor has against ScanSoft, it being the
intention hereof that Xerox pay or perform as a primary obligation
directly from Xerox to Distributor all obligations which ScanSoft shall
fail to faithfully and properly pay or perform when due.
Notwithstanding any implication to the contrary herein. Xerox shall
have all of ScanSoft's defenses to, and all of ScanSoft's rights of
set-off with respect to, any claim made or action brought by
Distributor with respect to the Distribution Agreement and this
AssIgnment. Xerox's obligations hereunder are binding upon Xerox and
Xerox's successor, and assigns and shall inure to the benefit of
Distributor's successors and assigns. All of Distributors rights and
remedies hereunder are cumulative and not alternative. Xerox hereby
represents and warrants that the modifications to the Distribution
Agreement set forth herein will be to the direct benefit of Xerox; and
that the person executing this Assignment on behalf of Xerox is duly
authorized and has the power and authority to bind Xerox under this
Assignment.
7. CONSENT TO ASSIGN:
-----------------
Distributor hereby consents to the assignment of the Distribution
Agreement pursuant to the terms and conditions of this Assignment.
8. RATIFICATION:
------------
Except as modified by this Assignment. the parties hereby ratify and
confirm all terms and conditions of the Distribution Agreement.
9. MISCELLANEOUS:
-------------
This Assignment, including any Exhibits and documents referred to in
this Assignment 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 Assignment which are not
fully expressed herein.
IN WITNESS WHEREOF. each party has signed this Assignment on the day and
year written below and shall be effective upon signing by Distributor.
"ASSIGNOR" "ASSIGNEE"
XEROX IMAGING SYSTEMS, INC. SCANSOFT, INC.
a Delaware corporation a DELAWARE corporation
By: /S/ XXXXXXX X. XXXXXX By: /S/ XXXXX XXXXXXXX
----------------------------------- -----------------------------
Printed Name: Xxxxxxx X. Xxxxxx Printed Name: Xxxxx Xxxxxxxx
Title: General Manager Title: VP Sales
Date: 6/18/97 Date: 6/18/97
"DISTRIBUTOR"
TECH DATA PRODUCT MANAGEMENT. INC.
a Florida corporation
By: /S/ XXXXX XXXXXXXX JULY 1, 1997
----------------------------------
Printed Name: XXXXX X. XXXXXXXX
Title: SENIOR VICE PRESIDENT MARKETING
