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EXHIBIT 10.19
EXTENDED
SYSTEMS
AGREEMENT NO:
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The Buyer named below agrees to purchase Extended Systems Incorporated (ESI)
products described in the attached Exhibit(s) subject to the following terms
and conditions.
PRICE
The price for products purchased hereunder for the initial contract period
shall be as set forth in the DISTRIBUTOR PRODUCT PRICING EXHIBIT plus
applicable taxes. Prices for subsequent contract years will be furnished to
Buyer prior to March 1 each year.
PAYMENT AND SECURITY TERMS
Buyer shall pay all invoices issued according to the credit terms specified on
each invoice calculated from the date of invoice and is subject to an overall
credit limit. ESI reserves the right to change the credit terms and credit
limit at anytime. A late payment is subject to a "FINANCE CHARGE" of 1 1/2%
per month which is an ANNUAL PERCENTAGE RATE of 18%. The finance charge is
computed by applying the periodic rate to the previous balance which is the
balance at the beginning of each billing cycle.
Should Buyer become delinquent in the payment of any sum due ESI, after ten
(10) days from the date of written notice to Buyer, ESI shall not be obligated
to continue performance under any agreement with Buyer.
DELIVERY AND TERM OF CONTRACT
Deliveries of products purchased under this agreement shall be initiated by
written orders. Orders for products must be received by ESI not more than one
hundred and eighty (180) days prior to Buyer's requested delivery dates. Each
order shall contain a reference to this agreement. Buyer shall issue orders
from one location within its organization to: X.X. Xxx 0000, Xxxxx, XX 00000.
ESI shall make every reasonable effort to meet any delivery date(s) quoted or
acknowledged. However, ESI will not be liable for its failure to meet such
date(s).
This agreement shall have an initial term ending on
, and shall renew automatically for additional one year
periods. A new DISTRIBUTOR PRODUCT PRICING EXHIBIT will be furnished to Buyer
each year prior to March 1. Either Buyer or ESI may, without cause, terminate
this agreement at any time upon thirty days prior written notice to the other
party provided, however, that this shall not affect any order received prior to
termination.
SHIPMENT - RISK OF LOSS AND PACKING
Products are shipped FOB Boise, Idaho. Title and risk of loss and damage shall
pass to Buyer when the product leaves the ESI plant. All products shall be
packed, if appropriate, for shipment and storage in accordance with standard
commercial practices.
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ORDER OF PRECEDENCE
These Terms and Conditions of Sale and any attachments take precedence over
Buyer's additional or different terms and conditions. Acceptance by Buyer is
limited to these terms and conditions including all Exhibits and Attachments.
Buyer's purchase of ESI's products hereunder represents acceptance of these
Terms and Conditions of Sale and all Exhibits and Attachments, which together
constitute the entire understanding between the parties and supersede any
previous communications, representations, or agreements by either party whether
verbal or written. No change or modification of any of the terms or conditions
herein shall be valid or binding on either party unless in writing and signed
by an authorized representative of each party.
CHANGES, CANCELLATIONS, DAMAGES AND RETURNS
If Buyer cancels an order for Products any time after the order is received by
ESI, Buyer may be subject to additional charges for damages in accordance with
provisions in the Idaho Uniform Commercial Code.
Returns of Products will be accepted in accordance with the provisions of the
STOCK BALANCING EXHIBIT.
ACCEPTANCE OF PRODUCTS
Acceptance shall be accomplished by using applicable test procedures or
programs established by ESI.
PATENT AND COPYRIGHT INDEMNITY
ESI shall, except as otherwise provided below, defend or settle any claim made
or any suit or proceeding brought against Buyer so far as it is based on an
allegation that any product furnished hereunder infringes a patent or copyright
of the country in which Buyer takes delivery of said product, if notified
promptly in writing and given information, assistance and the sole authority to
defend or settle same at ESI's expense, and ESI shall pay all damages and costs
finally awarded therein against Buyer. In case said product is determined by
court decree to infringe and the use of said product is enjoined, or in the
case of a settlement as referred to above, ESI shall have the option, at its
own expense, to procure for Buyer the right to continue using said product; or
replace same with a non-infringing product; or modify same so it becomes
non-infringing; or refund the depreciated value of said product and accept
return of same. ESI shall have no liability for any infringement of patents,
copyrights, trademarks or other intellectual property rights resulting from
compliance with Buyer's designs, specifications, or instructions; from
modification of said product; from use of said product other than as specified
in relevant ESI publications or from use of said product with products not
supplied by ESI, and Buyer shall indemnify and hold ESI harmless from any such
liability.
The foregoing states the entire liability of ESI for infringement of
intellectual property rights by products furnished hereunder.
COPYRIGHTED MATERIALS
Unless otherwise agreed to in writing by ESI, copyrighted materials may not be
copied except for archive purposes, to replace a defective copy, or for program
error verification.
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WARRANTY
The warranty for products purchased hereunder shall be as set forth in the
WARRANTY EXHIBIT.
THE WARRANTY SET FORTH IN THE WARRANTY EXHIBIT IS EXCLUSIVE AND NO OTHER
WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. ESI SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
LIMITATION OF REMEDIES AND LIABILITY
THE REMEDIES PROVIDED IN THIS AGREEMENT ARE BUYER'S SOLE AND EXCLUSIVE
REMEDIES. IN NO EVENT SHALL ESI BE LIABLE FOR DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
MISCELLANEOUS
a. Except as may be prohibited by the U.S. bankruptcy laws, in the event
of any insolvency or inability to pay debts as they become due by a
party hereto, or voluntary or involuntary bankruptcy proceeding by or
against a party hereto, or appointment of a receiver or assignee for
the benefit of creditors, the other party may elect to cancel any
unfulfilled obligations hereunder.
b. Any required notices shall be given in writing at the address of each
party set forth, or to such other address as either party may
substitute by written notice to the other.
c. Neither party may assign or transfer any of the rights, duties, or
obligations herein, without the prior written consent of the other,
and any purported attempt to do so shall be null and void.
d. ESI's failure to exercise any of its rights hereunder shall not
constitute or be deemed a waiver or forfeiture of such rights.
e. No U.S. Government Procurement Regulations or comparable state
government regulations shall be included hereunder and binding on
either party unless specifically agreed to in writing prior to
incorporation herein.
f. Stenographical, typographical and clerical errors are subject to
correction.
g. Unless otherwise agreed to by ESI, Buyers who export from the U.S.
products purchased hereunder assume all responsibility for obtaining
any required export authorizations. Buyer shall not export or
re-export technical data supplied by ESI, directly or through others,
or the direct product of such data, to the prescribed countries listed
in Section 379.4 and associated or successor sections of the U.S.
Export Administration Regulations unless properly authorized by the
U.S. Government.
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h. Any dispute regarding the enforcement, interpretation or validity of
this Agreement shall be governed by the laws of the State of Idaho.
The parties hereby agree that any dispute relating to the products
sold hereunder in this Agreement shall be subject to the exclusive
jurisdiction of the courts within the State of Idaho.
Buyer: __________________________________________________________________
Dated this ____________ day of _________________________, 19______.
___________________________________________________________________
Signature of Authorized Representative
Company Name:
Name:
Title:
Address:
Extended Systems Incorporated
Dated this ____________ day of _________________________, 19______.
___________________________________________________________________
Signature of Authorized Representative
Name: Xxxxx X. Xxxx
Title: Contract Administrator
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000 XXX
List of Exhibits:
Distributor Product Pricing Exhibit
Stock Balancing Exhibit
Market Development Funds Exhibit
Warranty
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DISTRIBUTOR PRODUCT PRICING EXHIBIT
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This Distributor Product Pricing Exhibit to the Purchase Agreement between
Extended Systems Incorporated (ESI) and (Buyer) is effective upon receipt of
signed contract and expires on .
ANNUAL DOLLAR VOLUME COMMITMENT
The contract discount percentage is based upon a minimum annual dollar volume
purchase forecast of $____________________ at ESI List prices.
DISCOUNT PERCENTAGE
Buyer's discount percentage for the contract year will be_________________. As
consideration for this discount, Buyer agrees that:
1. The products purchased hereunder are for resale outside of North
America.
2. Buyer has primary responsibility for product technical support in
Buyer's market area and will maintain a technical support organization
serving customers at a satisfactory level.
3. Buyer will maintain sufficient inventory of ESI products offered for
sale to meet expected demand off the shelf and for immediate
replacement to Buyer's customers of failed units.
4. Buyer will offer Buyer's customers product warranties at least as good
as those offered directly by ESI and will administer warranty policy
in a manner consistent with ESI's warranty policies.
5. Buyer is responsible for product promotion and market development in
Buyer's market area.
ESI reserves the right to modify Buyer's discount percentage upon 30 days
written notice in the event that:
1. ESI or an agent of ESI other than Buyer, assumes primary
responsibility for technical support in Buyer's market area;
2. ESI or an agent of ESI other than Buyer, assumes responsibility for
maintaining off-the-shelf and replacement inventory in Buyer's market
area;
3. ESI or an agent of ESI other than Buyer, assumes responsibility for
promotion and/or market development in Buyer's market area; or
4. ESI changes its overall pricing and/or discount policies.
PRODUCTS AND PRICE
1. Buyer may purchase products appearing on ESI's U.S. Price List,
excluding Database Products, on the date of receipt of Buyer's
applicable purchase order. The price for each product purchased shall
be the price appearing on the Price List less the above discount
percentage.
2. If Buyer does not order at least one-third (1/3) of the Annual Dollar
volume commitment in the first six (6) months of the contract year,
ESI may terminate this contract.
3. In the event of a price reduction, ESI will price protect Buyer for
all product shipped to Buyer within thirty (30) days prior to the
effective date of the price change that is still in Buyer's inventory
on the effective date of the price change. Buyer's account will be
credited with an amount, to be used for future purchases only, equal
to the difference between the old and the new net price. To receive
credit, Buyer will notify ESI of the number and type of products in
its inventory as of the effective date of price change, by providing a
copy of an inventory report with ESI's model number and serial number.
Buyer must notify ESI within thirty (30) days following effective date
of price change.
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STOCK BALANCING EXHIBIT
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This Stock Balancing Exhibit to the Purchase Agreement between Extended Systems
Incorporated (ESI) and (Buyer) is effective upon receipt of signed contract and
expires on _____________________.
ESI will accept returns of standard ESI products in their unopened original
packaging without a restocking fee subject to the conditions that follow. ESI
will accept returns of discontinued products for thirty (30) days after notice
from ESI to Buyer of discontinuance. Returns of products more than one year
after their original purchase date and of "Special Order" products as
designated on the ESI U.S. Price List will not be accepted under these stock
balancing provisions. Aggregate returns of current and discontinued products
cannot exceed 10% of the amount purchased from ESI during the preceding
quarter. All returns must be accompanied by a purchase order for an equal or
greater dollar amount of ESI's products. Credits issued for such returns can
only be used for the purchase of other ESI products. All returns require a
valid Return Materials Authorization from ESI prior to the return and must be
returned to ESI on a freight prepaid basis. To be eligible for stock balancing
Buyer must provide ESI with monthly reports showing quantity of ESI products in
inventory. These reports should be sent to ESI Attention of Contract
Administration. Only stock that shows on these reports will be eligible for
stock balancing.
Returns of opened products, or products purchased more than one year ago, or of
any other items not permitted by the preceding paragraph are subject to a
standard restocking fee.
The following person is authorized to return product for stock balancing:
Name:_____________________________ Title:___________________________
Phone #:____________________________
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MARKET DEVELOPMENT FUNDS EXHIBIT
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This Market Development Funds Exhibit to the Purchase Agreement between Extended
Systems Incorporated (ESI) and__________________ (Buyer) is effective upon
receipt of signed contract and expires on .
MARKET DEVELOPMENT FUNDS
Buyer will be granted credit to its account for marketing programs approved in
advance by ESI if Buyer shows proof of the promotion of ESI's products in the
form of invoices and sample promotional materials. Such promotional materials
must contain ESI's logo and the product's name. Buyer's account will be
credited with an amount, to be used for future purchases only, equal to fifty
percent (50%) of complying invoiced promotion expense; however, in no case will
ESI issue credit for more than two percent (2%) of net shipments during the
calendar year. Claims for market development funds must be submitted to ESI
within 30 days of the promotion. Funds available are calculated on a calendar
year basis, and must be used no later than March 31 of the following calendar
year. If not used, funds do not carry forward to subsequent years.
ESI RESERVES THE RIGHT TO MODIFY THE TERMS AND CONDITIONS FOR USE OF MARKET
DEVELOPMENT FUNDS UPON 30 DAYS WRITTEN NOTICE.
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WARRANTY
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HARDWARE WARRANTY
Hardware products are warranted for two (2) years from the purchase date of the
original product against defects in materials and workmanship. If ESI receives
notice of such defects during the warranty period, ESI will replace products
which prove to be defective. THIS IS AN EXCLUSIVE REMEDY AND ESI SHALL HAVE NO
LIABILITY OF ANY TYPE BEYOND REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT.
For product warranties requiring return to ESI, Buyer shall prepay shipping
charges (and shall pay all duties and taxes) for products returned to ESI for
warranty service. Except for products returned to Buyer from another country,
ESI shall pay for return of products to Buyer.
NO OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, ARE EXPRESSED OR IMPLIED. ESI
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
SOFTWARE WARRANTY
ESI does not warrant that the operation of software products (programs) will
meet the Buyer's requirements or be error free. The programs are provided "AS
IS" without warranty of any kind. The entire risk as to the quality and
performance of the programs is with the Buyer. If the programs prove defective
or inadequate, Buyer assumes the entire cost of service or repair and for any
damages caused by the defects. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND
THIS WARRANTY.
LIMITATION OF DAMAGES
The remedies set forth in the product warranty are the Buyer's sole and
exclusive remedies. In no event shall ESI be liable for direct, indirect,
special or consequential damages (including loss of profits), whether based on
contract, tort, or any other legal theory.
