Exhibit 10.22
METATOOLS/STREAM TURNKEY/INVENTORY AGREEMENT
PARTIES:
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This working agreement is made and entered into between MetaTools, Inc.
("MetaTools"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Stream
International Inc. ("Stream"), ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
TERM:
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The term of this agreement is from 3/01/96 through 3/01/97 and will be reviewed
annually.
TERMINATION:
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This agreement can be canceled by either party with 90 calendar days written
notice and agreed to disposition of inventories.
DISPUTES:
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Both parties agree to negotiate disputes in good faith and to submit to
arbitration should they fail to reach agreement.
PURPOSE:
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To award MetaTools turnkey deliverable requirements to Stream in accordance with
the provisions and prices in this agreement.
COMPONENT AND RAW MATERIAL PROCUREMENT:
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Under written authorization from MetaTools, Stream will produce or procure
components and raw material and retain ownership of these components on
MetaTools' behalf per the programs outlined below. This authorization may take
the form of, but is not limited to, purchase orders, electronic mail messages,
MetaTools-generated forecasts, or MetaTools sign-off on production planning or
MRP sheets.
PURCHASE ORDERS:
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Stream will require a hard copy Purchase Order prior to final assembly or final
shipment of products. These purchase orders will be consistent with the price
quotation which Stream will develop from the most current specifications and
requested quantities provided by MetaTools. Purchase Orders will be delivered
in hard copy, fax, or electronic mail. At a minimum, purchase orders will
consist of purchase order number, PO line number parts, prices, and delivery
dates.
Once purchase orders and delivery schedules have been mutually accepted,
subsequent changes in quantities, specifications, or delivery schedules will be
subject to price adjustments and production schedule changes under the terms of
this Agreement. Stream will make every effort
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to maintain price consistency and reduce purchase price variance for MetaTools
in these situations. Stream may ship and invoice all completed kits 90 days
after receipt of PO.
FORECASTS:
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MetaTools' requirements typically call for shipment of product in a timeframe
that is shorter than the required components can be effectively procured or
produced. MetaTools-generated forecasts will be used for component and raw
material procurement or production authorization. MetaTools agrees to provide
Stream a 90 day rolling forecast on the first Thursday of each month. Materials
(components and raw materials) will be purchased to a forecast by Stream on
MetaTools behalf using a net MRP process. This process will include Stream
determining an economic order quantity, not to exceed either the total forecast
quantity, or a maximum of the ninety days forecast requirements. This quantity
will be procured with MetaTools signed authorization.
DELIVERY:
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MetaTools may schedule deliveries for multiple locations for any quantity from a
single purchase order. In the event that multiple "ship to" addresses are
required on the same purchase order, drop ship charges may apply. This does not
apply to distribution orders.
CANCELLATIONS:
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Should MetaTools decide to cancel purchase orders, forecasts, or deliveries,
discontinuing work, or reducing total quantities, MetaTools agrees to give
Stream written notice. This notice shall be in the form of an updated forecast,
purchase change order or electronic mail. In addition, MetaTools agrees to pay
the material and labor at the stated selling price for work completed and in
process as of the date and time Stream receives notification of cancellation.
This payment may include extraordinary costs which are incurred by Stream. This
may include extraordinary administrative expense incurred.
Stream agrees to work in good faith to limit the potential chargeable costs by
rescheduling piece part procurement, deliveries, and manufacturing and assembly
as long as is reasonably possible and cost effective. Interrupted but completed
work and non-standard material may be invoiced in normal billing cycles once
MetaTools has been informed. MetaTools agrees to provide a revised Purchase
Order for the work completed at the time of cancellation.
EXCESS MATERIAL:
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Excess material will be defined as the quantity of any given material
(components and customer specific raw material) which has been on-hand at Stream
for longer than 90 calendar days but not over 180 days. Streams and MetaTools
joint objective will be to consume or dispose of this material prior to 180 days
from its receipt in order to avoid storage charges. The details of storage
charges are described below. Stream may invoice for all material on hand over
180 days.
SURPLUS MATERIAL:
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Surplus material will be defined as the quantity of any given material
(components and customer specific raw material) which has been on-hand at Stream
for longer than 180 calendar days.
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Beginning on the 181st day this inventory will be assessed a carrying and
storage changes equal to 2.5% of the Stream selling price/month or $14.50/pallet
for consigned material. These costs will be invoiced on the first day of each
month. MetaTools agrees to provide a Purchase Order to cover these costs. Stream
may invoice components and customer specific raw material at the earlier of the
termination of this Agreement of the first anniversary of acquisition. MetaTools
agrees to continue paying carrying and storage charges until the material is
physically disposed of. Disposition involves:
1. The surplus material is consumed in the manufacturing process.
2. The surplus material is shipped "as is" to a destination of MetaTools
choice.
3. The surplus material is scrapped at MetaTools direction.
OBSOLETE MATERIAL:
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Obsolete material will be defined as the quantity of any given material
(components and customer specific raw material) meeting any of the following
conditions:
1. All related top level SKU's are no longer being sold through normal
distribution channels.
2. It has been replaced by new or updated versions through a revision or
specification change process.
3. It has been eliminated from all applicable MetaTools Bills of Material.
As of the date material is identified as obsolete, it will be assessed storage
and carrying costs as described under "Surplus" above. MetaTools agrees to
dispose of or consume all obsolete material also as outlined above.
In no event will Stream charge MetaTools for materials Stream elected to produce
in excess of MetaTools authorized component levels set out in MetaTools
forecast. Stream assumes all risks of producing material in excess of these
authorized component levels. Only material which is of a quality suitable for
its original use may be classified as excess or obsolete.
INVENTORY MANAGEMENT:
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In order to assist MetaTools in limiting obsolescence exposure and storage
charges, Stream agrees to utilize Inventory Management procedures as below:
Stream will maintain a maximum of one month supply of finished goods in
MetaTools distribution inventory at any given time. Minimum finished levels
will be set by Stream in conjunction with MetaTools management and will be based
on assembly leadtime and forecasted demand. Stream will be responsible for
monitoring finished goods minimum levels and replenishing to preset maximums at
appropriate times.
Stream will purchase component materials in economic order quantities. In most
cases these quantities will be less than 90 days forecasted demand and in no
case will they exceed this amount.
Stream will monitor component inventory levels via our Master Scheduling MRP
system. Stream will load MetaTools rolling 90 day forecast into the MRP system
each month. The system will net on-hand quantities against projected demand.
Stream purchasing will calculate
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economic order quantities from the MRP net requirements, ensuring minimum
inventory levels and continuity of supply.
SKU specific mid-month forecasts will be required for products which are
significantly exceeding forecasted demand or for new product introductions which
were not included in previous forecasts.
PRICING:
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Pricing will be based on the following:
1. Assembly
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Assembly pricing for March through June is based on the forecasts MetaTools
have provided to Stream. March 1996 plus the quarter beginning April 1996
prices will be based on a flat rate of $1.05. This reflects an understanding
that we were in a start-up period and is not contingent upon previous
volume.
Pricing for the quarter of July through September will remain at
$1.05 provided the volume from March through June 1996 exceeds 120,000
units. In the event that volume in this same period exceeds 240,000 units
(quarterly total), pricing for the quarter of July through September will be
reduced based on the schedule below.
Assembly Pricing Matrix:
July through September
Units produced per month:
(less than) over 40,000- over 60,000- over 80,000- over 100,000- (more than)
40,000 60,000 80,000 100,000 120,000 120,000
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$1.25/unit $1.05/unit $1.05/unit $0.90/unit $0.80/unit $0.75/unit
The above assembly matrix is based on a "standard" kit containing:
1 outer box
1 corrugated inner box
1 CD or diskette subassembly
1 serialized BRC
1 serialized manual
up to 5 miscellaneous inserts
up to 3 outside labels
shrinkwrap
"Zip" Product assemblies will be fifteen cents ($0.15) less per unit
Upon completion of the "start up" period, we will review pricing quarterly and
base each subsequent consecutive quarter, beginning October 1, 1996, on the
"Standard Assembly Pricing Matrix" listed below.
Assembly Pricing Matrix:
Standardized Matrix
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Units produced per month:
(less than) over 40,000- over 60,000- over 80,000- over 100,000- (more than)
40,000 60,000 80,000 100,000 120,000 120,000
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$1.45/unit $1.25/unit $1.05/unit $0.90/unit $0.80/unit $0.75/unit
The above assembly matrix is based on a "standard" kit containing:
1 outer box
1 corrugated inner box
1 CD or diskette subassembly
1 serialized BRC
1 serialized manual
up to 5 miscellaneous inserts
up to 3 outside labels
shrinkwrap
"Zip" Product assemblies will be fifteen cents ($0.15) less per unit.
2. Replication
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Standard Replication Pricing
2 color CD* $0.67 each
CD Sleeve,
includes License Agreement Label and insertion $0.15 each
CD Jewelcase,
includes assembly $0.28 each
3.5" HD Diskettes,
(includes collation, bagging, and label) $0.47 each
Diskette bag label (includes affixing) $0.05 each
*Individual CD orders with less than 3 day lead time will be assessed a fee
of $0.06/CD.
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3. Project Management
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With all kits, a project management fee of $0.30 will be assessed which
includes the following services:
Job Engineering Storage (for the first 90 days)
Interplant Freight Dedicated Resources
Inventory Management Account Management
Transaction Reporting Order Processing
4. Distribution
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Standard distribution turn time will be 24 hours. All orders received prior
to 5:00pm will be shipped before 5:00pm the following work day.
End User: $1.90/order
$0.15/unit
Includes order processing, pick/pack/ship, order confirmation and packing
materials (excluding shipping carton)
Retail: $0.15/unit
Includes order processing, shipping and ship confirmation.
International: $13.75/order*
Includes preparation of export documentation.
*If order is received electronically, price is then reduced to $9.75/order.
Expedite Fees (same day shipment):
Expedites received before 2:00pm: $3.00/unit expedited
Expedites received after 2:00pm: $10.00/unit expedited
Stream will allow MetaTools 10 (ten) "free" cancellations per month, after
which case a cancellation fee of $10.00 per canceled order will be charged.
Thus cancellation charges are as follows:
0 - 10 cancellations per month: $0.00 (no charge)
11+ cancellations per month: $10.00 per canceled order
All distribution charges to be invoiced on a monthly basis, based upon
activity.
5. Procured Parts (supplier Specified)
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If MetaTools wishes to specify a supplier for any portion of the product
kit, Stream will purchase from that supplier and add a 15% ▇▇▇▇-up.
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6. Re-Work Pricing
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In the event MetaTools wishes to re-work current product held in inventory,
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the following prices may apply. These prices are based upon the two
scenarios listed below. If re-work specifications differ from the
specifications listed below, pricing will be negotiated upon complete
understanding of the nature of the re-work. Specifications are as follows:
Re-Work Label:
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Product currently in inventory
Set up assembly line
Remove shrinkwrap
Affix label on top of label to be replaced, or in alternate location as
specified
Shrinkwrap product
Price: $0.35/unit
Re-Work to form Alternate Product (Based on scrapping all excess materials)
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Product currently in inventory
Set up assembly line
Remove shrinkwrap
Remove contents in packaging (based upon contents listed in "Standard
Assembly Pricing Matrix")
Insert contents into different packaging
Shrinkwrap product
Re-work retail product to form "Zip" product: Price: $0.60/unit
Re-work "Zip" product to form retail product: Price: $0.50/unit
7. RMA's
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Bulk Returned Material:
All returned material will be assessed a charge of $75.00 per order.
End User Returns:
All end user returns will be based upon the following:
. Confirm receipt of product
. Monthly review and sortation
. Detailed report of product status
. All returns shipped directly into the Stream Fremont, CA division
at:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cost: $1.25/unit
8. Physical Inventory
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One (1) physical inventory will be included in the project management fees
per year at the finished good level.
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9. Other Pricing
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Pricing for other services including but not limited to Telemarketing
(inbound/outbound). Registration, Technical Support, RMA service and
Software Exchange (OEM direct) is available upon request.
10. Terms of Payment
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Net cash 30 days from date of invoice.
FILM, DIGITAL FILES, AND PLATES
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All platemaking film made by us will be used solely for your work and becomes
your property upon payment of invoices. All film or electronic files furnished
by you will be used solely for your work and will remain your property. All
plates made by us will be used solely for your work but will remain our
property. All electronic imposition files we make from your furnished digital
files, all type fonts used for the production of your work, any storage devices,
disks, etc. we use to archive your files and any proprietary software, systems
or technology we use to process your files will remain our property.
MEDIA REPLICATION
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For work involving diskette replication, you will furnish original and identical
master diskettes or electronic files for each diskette title to our
specifications. Diskette masters and copies made from the masters or files will
be used solely for your work. Upon your request the master will be returned to
you, and the copies destroyed. For work involving CD-ROM replication, all input
files, CD-R's or compact discs furnished by you will be used solely for your
work and remain your property. All tooling, including masters, stampers or any
other tooling made by us will be used solely for your work but will remain our
property.
TERMS OF PAYMENT, INTEREST, COLLECTION COSTS, AND BILLING DISPUTES
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The Terms of Payment statement immediately follows the prices. Should any
invoice issued hereunder become past due, you agree to pay interest at the rate
of one and one-half percent (1 1/2%) per month, or the lawful limit if less, on
all amounts past due as well as all the costs of collection, if any, including,
but not limited to, reasonable attorney's fees. Interest will be calculated from
the invoice due date to the date payment is received. Failure to ▇▇▇▇ for
interest due will not constitute a waiver of our right to charge interest.
Should any portion of an invoice be disputed, you agree to pay the undisputed
portion according to its terms and you will notify us promptly of the dispute.
Both parties agree to use their best efforts to resolve the disputed portion of
the invoice within thirty (30) days of learning of the dispute.
EXPORT REQUIREMENTS
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MetaTools represents to Stream that all MetaTools shipping instructions to
Stream will comply with all applicable export laws, rules, and regulations.
MetaTools agrees to indemnify Stream against any claims that MetaTools shipping
instructions violate applicable export requirements.
BANKRUPTCY
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If either party shall be adjudicated a bankrupt, institute voluntary proceedings
for bankruptcy or reorganization, make an assignment for the benefit of its
creditors, apply for or consent to the appointment of a receiver for it or its
property, or admit in writing its inability to pay its debts as
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they become due, the other party may terminate this Agreement by written
notice. Any such termination will not relieve either party from any accrued
obligations hereunder.
GUARANTEE AND LIMITATION OF LIABILITY
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We will perform the work in a good workmanlike manner and in accordance with the
specifications and production schedule. In the event the work is defective or
delayed due to our fault (including negligence), we will not be liable for
special or consequential damages, including, but not limited to, lost profits or
business.
RESPONSIBILITY FOR SUBJECT MATTER
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In furnishing us matter to reproduce, or distribute, or to have incorporated in
the completed product, you represent and warrant that none of such matter
infringes any copyright (either as furnished to us by you or as altered by us at
your direction), or patent, is libelous, or otherwise violates the rights of or
will cause damage or injury to other persons, and you agree to indemnify and
save us harmless from all losses, damages and expenses, including attorneys'
fees, which we may suffer as the result of any claim of such violation, damage,
or injury.
WORK STOPPAGES
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We will not be liable for delays or non-performance of this Agreement occasioned
by strikes, fires, accidents, or by causes beyond our control including, but not
limited to, the inability to obtain necessary materials or utilities. In the
event of a stoppage or delay resulting from any such cause, we will perform such
parts of the work as we are capable of performing, and in the event you place
any other part of the work elsewhere, we will be entitled to resume the same as
promptly as practicable.
ASSIGNMENT
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Neither party to this Agreement will assign any right(s) hereunder without the
prior written consent of the other party, except that we may assign payments due
us to any affiliated company without consent. Subject to this consent, this
Agreement will inure to the benefit of and will bind the successors and assigns
of the parties hereto.
INSURANCE
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We will carry at our expense fire, sprinkler leakage and extended coverage
insurance, subject to the usual exclusions, limitations, and conditions of such
policies on the actual cash value of all our materials, work in process, and all
production completed and not shipped, and on the actual cash value of all
positives, copy, artwork, paper and other materials furnished by you while in
our care, custody and control. If your property is damaged as a result of an
insured peril under the applicable insurance policy, then, at our option, we
will either replace your damaged property or reimburse you for the actual cash
value of the damaged property. If we elect to reimburse you for the damaged
propertys actual cash value, the amount payable to you shall be limited to the
proceeds of such policy plus any related deductible, if any, applied to the
claim for damage to your property. For positives and other media our insurance
coverage and our liability shall be limited to the cost of blank film or other
media and the cost of duplication from an original or other copy.
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PASSING OF TITLE
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Title and possession will pass to you upon delivery or upon date of final
invoicing, whichever is earlier, f.o.b. our final plant of manufacture.
GOVERNING LAW
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The Agreement will be governed by the laws of the State of California
If this proposal meets with your approval, kindly sign below. Your signature
below means all the terms and conditions at the bottom of this page and on the
attached pages are incorporated herein and made a part of this Agreement.
Following your approval and upon confirmation by an officer of Stream
International Inc., the approved proposal will then constitute a contract
between us.
APPROVED: Respectfully submitted,
MetaTools, Inc. Stream International Inc.
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
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Authorized Officer ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Director Business Development
Date April 18, 1996
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