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EXHIBIT 10.07
INTEGRATED AUTOMATION INT'L.
NATIONAL HELP DESK
000 X. Xx Xxxxxx Xxxx, #00 (000) 000-0000 Ext.4
Xxx Xxxxxxxx, XX 00000 FAX (000) 000-0000
INTEGRATED AUTOMATION INTERNATIONAL (IAI)
MAINTENANCE SERVICE AGREEMENT
This Agreement, entered into this ____ day of ______________, 1999, by
and between INTEGRATED AUTOMATION INTERNATIONAL ("IAI") and STUPIDPC, INC.
("OEM"), listed hereafter as signatories, do hereby agree as follows:
RECITALS
A. IAI is in the business of providing computer warranty
products to be resold through its various clients, such as
OEM, to OEM's customers.
B. OEM desires to market IAI's warranty products to its
customers in an effort to provide better service to those
customers.
C. It is the intent of both parties that OEM shall be at all
times an independent contractor and not subject to the
control or dictates of IAI; and, that OEM shall in no way be
involved in controlling the service process contained in the
IAI product after the sale is consummated by OEM to its
customers.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, IAI AND OEM AGREE AS
FOLLOWS:
1. DEFINITIONS, DESCRIPTIONS AND TERMINOLOGY OF AGREEMENT:
A. "IAI One Year Warranty" refers to the initial period of
warranty service applicable to OEM computer systems sold
under this Agreement, said warranty period to begin with the
date of User purchase, and to continue for one year
thereafter;
B. "Extended Warranty" refers to placing OEM computer systems
under IAI warranty after the expiration of the IAI One Year
Warranty;
C. "Non-Warranty" refers to IAI services not provided under the
IAI One Year Warranty or Extended Warranty, (site
preparation, installation, etc);
D. "On-Site" refers to the physical User system location;
E. "Field Failure" refers to any CPU unit failure which occurs
requiring replacement of a part or parts;
F. "User" refers to the consumer who purchases a CPU unit for
their own use, and not for resale.
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INTEGRATED AUTOMATION INT'L.
NATIONAL HELP DESK
000 X. Xx Xxxxxx Xxxx, #00 (000) 000-0000 Ext.4
Xxx Xxxxxxxx, XX 00000 FAX (000) 000-0000
2. RESPONSIBILITIES OF THE PARTIES (OEM TO IAI):
OEM agrees to abide by and perform in accordance with the following
provisions:
A. OEM, as an independent contractor, will sell the IAI One Year
Warranty product with its computer systems;
B. OEM will supply parts necessary for use in maintaining
computers sold under the IAI One Year Warrant, at no cost to
IAI;
C. OEM will promptly ship (via UPS or equivalent service) all
parts necessary to be provided to IAI under this Agreement at
no charge to IAI;
D. OEM will take all steps necessary to refer Users to IAI for
Extended Warranty or Non-Warranty services.
3. RESPONSIBILITIES OF THE PARTIES (IAI TO OEM):
IAI agrees to abide by and perform in accordance with the following
provisions:
A. IAI hereby authorizes OEM, as an independent contractor, to
sell IAI's One Year Warranty product pursuant to the costs
and charges set forth herein. Nothing in this Agreement shall
be construed to consider OEM an agent or employee of IAI;
B. IAI shall bear the cost of returning parts provided by OEM
under this Agreement;
C. IAI shall ship out defective parts to OEM within five (5)
working days following the completion of IAI One Year
Warranty maintenance work;
D. IAI hereby warrants each on-site service performed for a
period of thirty (30) days following completion or repairs.
Any defective repair performed by IAI shall be corrected at
no charge, provided IAI receives notice within the thirty
(30) day period.
E. IAI shall have a Field Service Technician at the User site
within 8 working hours from the time IAI receives
confirmation of parts receipt at the User site, provided the
USER site is within 50 miles of a designated IAI service
location. For User sites located further than 50 miles from a
designated IAI service location, IAI shall use its best
effort to have a Field Service Technician at the User site as
soon as possible.
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INTEGRATED AUTOMATION INT'L.
NATIONAL HELP DESK
000 X. Xx Xxxxxx Xxxx, #00 (000) 000-0000 Ext.4
Xxx Xxxxxxxx, XX 00000 FAX (000) 000-0000
4. CONTRACT PERIODS OF MAINTENANCE AND SERVICE - "IAI ONE YEAR WARRANTY":
A. Under the IAI One Year Warranty, telephone support is
provided by IAI 24 hours a day, 365 days a year.
B. On-Site maintenance service shall be performed from the
period of 8:00 AM to 5:00 PM, Monday through Friday,
excluding holidays observed at the User site.
5. EXTENDED WARRANTY AND NON-WARRANTY WORK:
A. Extended Warranty and Non-Warranty services will be made
available to the User and paid for by the User.
6. INVOICES AND PAYMENTS:
A. IAI monthly charges are based on OEM monthly systems
shipments as follows:
There shall be a minimum monthly fee of $2,500 per month,
which covers initial 100 systems.
OEM will be charged additional $25 flat rate per system per
year for any systems in excess of the first 100 systems.
The OEM field failure rate shall be no greater than Ten
Percent (10%) of total monthly shipments (based on current
Calendar Year shipments). For each and every field failure
that exceeds the Ten Percent (10%), the charge shall be at
the rate of $165 per on-site service call.
B. Invoices are due and payable to IAI on the first (1st) day of
each month. For payment received at the offices of IAI later
than the fifth (5th) day of each month, there shall be a late
charge assessed of Ten Percent (10%) of the overdue amount.
C. If payment is not received by the eighth (8th) day of the
month, OEM accounting department shall be placed on
"credit-hold pending" status, which notice shall be delivered
to OEM via immediate fax transmission and by overnight mail.
D. If payment is not received by the tenth (10th) day of the
month, OEM shall be placed on "credit hold". While on credit
hold, all telephone support and on-site service activity
shall cease. When payment has been received, plus late charge
if applicable, service shall be restored on a "best efforts"
basis as soon as possible.
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INTEGRATED AUTOMATION INT'L.
NATIONAL HELP DESK
000 X. Xx Xxxxxx Xxxx, #00 (000) 000-0000 Ext.4
Xxx Xxxxxxxx, XX 00000 FAX (000) 000-0000
7. CONFIDENTIAL NATURE OF THIS AGREEMENT:
A. IAI acknowledges that, as a part of IAI's obligations under
this Agreement, IAI may obtain information from OEM related
to OEM products and business operations, all of which are
confidential and proprietary in nature. Such "Confidential
Information" includes, but is not limited to, the following
types of information and/or other information of a similar
nature, whether or not reproduced in writing: (1) information
regarding OEM installed base and its customers or those of
its affiliates; (2) any information which OEM obtains from
another party which OEM treats as proprietary or designates
as Confidential Information, whether or not owned or
developed by OEM. IAI shall at all times, both during and
after the term of this Agreement, agree not to disclose
Confidential Information to any person or entity, and shall
retain all such Confidential Information in confidence.
B. IAI may release said Confidential Information with the
express written consent of OEM;
C. IAI shall notify OEM of any actual or suspected breach of
confidentiality and shall cooperate fully with OEM in
discovering the details of said actual or suspected breach of
confidentiality.
8. DAMAGES:
A. IAI shall not be liable for any damage caused by delay on
rendering service arising from any cause beyond its control.
B. The sole and exclusive remedy for any breach of warranty,
express or implied, including without limitation any
warranties of merchantability of fitness, or negligence with
respect to maintenance service hereunder and all other
performance by IAI under or pursuant to this Agreement, shall
be limited, except as specified in Paragraph 8A, above, to
correction of any defective maintenance service by restoring
the equipment to good operating condition.
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INTEGRATED AUTOMATION INT'L.
NATIONAL HELP DESK
000 X. Xx Xxxxxx Xxxx, #00 (000) 000-0000 Ext.4
Xxx Xxxxxxxx, XX 00000 FAX (000) 000-0000
9. TAXES:
A. IAI shall be responsible for any NEXUS taxes associated with
the performance of User on-site service of systems sold in
accordance to the terms and conditions of this Agreement. The
relationship between OEM and IAI is considered and agreed to
be that of an independent contractor. It is the understanding
of both parties that the sale of the IAI One Year Warranty
product will not cause or subject OEM to taxation or
liability by NEXUS.
10. TERM OF AGREEMENT/TERMINATION:
A. Except as provided in the following paragraph (Paragraph B),
this Agreement shall not be subject to termination in whole
or in part by either party until the expiration of three (3)
years from the Commencement Date. This Agreement may be
terminated at any time after the expiration of this period
upon receipt of at least ninety (90) days written notice by
either party, which notice shall be given no earlier than one
hundred eighty (180) days before the expiration of the three
(3) year term. The OEM obligation to pay all maintenance and
other charges which shall have accrued shall survive any
termination of this Agreement.
B. If OEM or IAI petitions for reorganization under the
Bankruptcy Act or is adjudged a bankrupt, or if a receiver is
appointed for OEM's or IAI's business or if OEM or IAI makes
an assignment for the benefit of creditors or if OEM or IAI
defaults I payment of any sum due hereunder, or if OEM or IAI
otherwise fail to fulfill their obligations under this
Agreement, then the non-defaulting party, either OEM or IAI
shall, without further notice, have the immediate right to
terminate this Agreement. OEM's or IAI's termination shall be
without prejudice to any other remedies IAI or OEM may have.
11. GENERAL PROVISIONS:
A. Neither party shall have the right to assign its rights or
obligations under this Agreement except with the written
consent of the other party provided, however, that a
successor in interest by merger, by operation of law,
assignment, purchase, or otherwise of the entire business of
either party shall acquire all interest of such party
hereunder, and provided that either party shall be entitled
to assign its right to receive money under this Agreement.
Any prohibited assignment shall be null and void.
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INTEGRATED AUTOMATION INT'L.
NATIONAL HELP DESK
000 X. Xx Xxxxxx Xxxx, #00 (000) 000-0000 Ext.4
Xxx Xxxxxxxx, XX 00000 FAX (000) 000-0000
B. There are no other understandings, agreements or
representations, express or implied, other than those
specified herein. The foregoing terms and conditions shall
prevail notwithstanding any variance with the terms and
conditions of any order submitted by OEM. This Agreement
shall not be deemed or construed to e modified, amended,
rescinded, canceled or waived in whole or in part, except by
written amendment by the parties hereto.
C. The use of invoices or purchase orders between the parties to
this Agreement shall be for convenience of record keeping
only, and will have no effect on the terms and conditions set
forth in this Agreement.
D. Should a party to this Agreement breach the terms hereof, the
prevailing party shall be entitled to reasonable attorney's
fees and costs.
E. Should any of the provisions to this Agreement, or any
portion thereof, be determined illegal or unenforceable it
shall be deemed stricken and the remaining provisions hereof
shall be given separate effect from the provisions so
determined and shall not be affected.
F. This Agreement shall be governed by the laws of the State of
California and that venue shall be Orange County, California.
G. The parties hereby agree that either party may demand
arbitration through the American Arbitration Association,
Orange County, California. Should a dispute arise between the
parties, discovery shall be governed by the American
Arbitration Association Rules of Arbitration. The results of
such arbitration shall be binding on all parties.
Dated: 4/15/99 INTEGRATED AUTOMATION INTERNATIONAL
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By: /s/ Xxxxxx Xxx Lo
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Name: Xxxxxx Xxx Lo [Name]
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Title: V.P. [Title]
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Dated: 4/9/99 OEM
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By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx [Name]
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Title: President/CEO [Title]
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