HEWLETT-PACKARD COMPANY
U.S. AGREEMENT FOR AUTHORIZED DISTRIBUTORS
SIGNATURE PAGE
ICN # TBD
LEGAL BUSINESS NAME Pinacor
ADDRESS 0000 Xxxxx Xxxxxx Xxxxx
XXXX, XXXXX, XXX Xxxxx, XX 00000-0000
PHONE, FAX# 800-PINACOR, 602/366-2323
DBA(s) n/a
E-MAIL/INTERNET ADDRESS xxxxxxx.xxx
THE DOCUMENTS BELOW GOVERN THE RELATIONSHIP BETWEEN HP AND YOU FOR THE PURCHASE
AND RESALE OF HP PRODUCTS.
AGREEMENTS: APPLICATIONS:
X HP Reseller Business Terms U.S. Authorized Reseller
--- ---
X U.S. Distributor Agreement U.S. International VAR Application
--- ---
X U.S. Reseller Agreement
--- EXHIBITS:
X EXHIBIT L Approved Locations
ADDENDA: ---
U.S. CAD/Specialty Product Distributor EXHIBIT UD Calculator Distributor Products
--- ---
X U.S. Personal Computing TopValue Program X EXHIBIT U20D Full Line Volume Products
--- ---
U.S. GSA Agent EXHIBIT U25D Volume Mass Storage Distributor Products
--- ---
U.S. Solutions Reseller Certification EXHIBIT U27D Volume Personal Computing Products
--- ---
U.S. Solutions-UNIX Products X EXHIBIT U40A Volume Accessory Products
--- ---
U.S. Solutions-MPE Products X EXHIBIT U40C Volume Consumable Products
--- ---
U.S. Solutions-Openview IT Service Management X EXHIBIT U74D PC TopValue Program Products
--- and Electronic Business Software ---
EXHIBIT U80D Volume CAD/Specialty Distributor Products
U.S. Solutions Distributor ---
--- EXHIBITA2Tl2 System Printer Consumables
X U.S. Volume Distributor ---
--- EXHIBIT A2T20 HP-UX Server Products
U.S. Federal Distributor ---
--- EXHIBIT A2T21 Unbundled HP-UX Server Products
U.S. Calculator Distributor ---
--- EXHIBIT A2T22 HP-UX Workstation Products
HP Configuration Tools License ---
--- EXHIBIT A2T23 Unbundled HP-UX Workstation Products
HP Software License Terms ---
--- EXHIBIT A2T24 Enterprise Storage Products
U.S. Software License-MPE Products ---
--- EXHIBIT A2T25 Other Peripheral and HP-UX Related Product
HP System Support Options ---
--- EXHIBIT A2T26 HP Openview NT Solutions
HP Unbundling Program ---
--- EXHIBIT A2T27 HP Openview IT Service Management and
U.S. Volume Reseller --- and Electronic Business Software
---
EXHIBIT A2T28 MPE Multiuser Products
AMENDMENTS: ---
U.S. International VAR EXHIBIT E81PL HP Unbundling Program Products
--- ---
ATTACHMENTS:
X HP Operations Policy Manual
---
X HP Product Categories
---
X Distributor Matrix
---
================================================================================
EXHIBIT ELECTION
HP and Distributor agree that its volume level, at Net Distributor price, for HP
Products on the Exhibit(s)/Program(s) noted for the term of this Agreement is:
Full Line Volume Distributor / U20D Volume PC and Networking Distributor/ U27D
X $200,000,000 - and up $10,000,000 - and up
--- ---
Volume Mass Storage Products Distributor/U25D Federal Distributor
$10,000,000 - and up $15,000,000 - and up
--- ---
Solutions Distributor Volume CAD/Speciality Distributor / U80D
$50,000,000 - and up $50,000,000 - and up
--- ---
Calculator Distributor / UD
$1,000,000 - and up
---
================================================================================
HEWLETT-PACKARD COMPANY
U.S. AGREEMENT FOR AUTHORIZED DISTRIBUTORS
SIGNATURE PAGE
ICN # 829
LEGAL BUSINESS NAME MICROAGE COMPUTER CENTERS INC
ADDRESS 0000 XXXXX XXXXXXXX XXX
XXXX, XXXXX, XXX Xxxxx, XX 00000-0000
PHONE, FAX# (000) 000-0000
DBA(s)
E-MAIL/INTERNET ADDRESS
THE DOCUMENTS BELOW GOVERN THE RELATIONSHIP BETWEEN HP AND YOU FOR THE PURCHASE
AND RESALE OF HP PRODUCTS.
AGREEMENTS: EXHIBITS:
X HP Reseller Business Terms X EXHIBIT L Approved Locations
--- ---
X U.S. Distributor Agreement X EXHIBIT UD Calculator Distributor Products
--- ---
X U.S. Reseller Agreement X EXHIBIT U20D Full Line Volume Products
--- ---
EXHIBIT U25D Volume Mass Storage Distributor Products
ADDENDA: ---
U.S. CAD/Specialty Product Distributor EXHIBIT U27D Volume Personal Computing Products
--- ---
U.S. Personal Computing TopValue Program X EXHIBIT U40A Volume Accessory Products
--- ---
X U.S. GSA Agent X EXHIBIT U40C Volume Consumable Products
--- ---
U.S. Solutions Reseller Certification EXHIBIT U74D PC TopValue Program Products
--- ---
U.S. Solutions-UNIX Products EXHIBIT U80D Volume CAD/Specialty Distributor Products
--- ---
U.S. Solutions-MPE Products EXHIBITA2Tl2 System Printer Consumables
--- ---
U.S. Solutions-Openview IT Service Management EXHIBIT A2T20 HP-UX Server Products
--- and Electronic Business Software ---
EXHIBIT A2T21 Unbundled HP-UX Server Products
U.S. Solutions Distributor ---
--- EXHIBIT A2T22 HP-UX Workstation Products
X U.S. Volume Distributor ---
--- EXHIBIT A2T23 Unbundled HP-UX Workstation Products
X U.S. Federal Distributor ---
--- EXHIBIT A2T24 Enterprise Storage Products
X U.S. Calculator Distributor ---
--- EXHIBIT A2T25 Other Peripheral and HP-UX Related Product
HP Configuration Tools License ---
--- EXHIBIT A2T26 HP Openview NT Solutions
HP Software License Terms ---
--- EXHIBIT A2T27 HP Openview IT Service Management and
U.S. Software License-MPE Products --- and Electronic Business Software
---
HP System Support Options EXHIBIT A2T28 MPE Multiuser Products
--- ---
HP Unbundling Program EXHIBIT E81PL HP Unbundling Program Products
--- ---
U.S. Volume Reseller
--- ATTACHMENTS:
X HP Operations Policy Manual
AMENDMENTS: ---
X U.S. International VAR X HP Product Categories
--- ---
X Distributor Matrix
APPLICATIONS: ---
U.S. Authorized Reseller
---
U.S. International VAR Application
---
================================================================================
EXHIBIT ELECTION
HP and Distributor agree that its volume level, at Net Distributor price, for HP
Products on the Exhibit(s)/Program(s) noted for the term of this Agreement is:
Full Line Volume Distributor / U20D Volume PC and Networking Distributor/ U27D
$200,000,000 - and up $10,000,000 - and up
--- ---
Volume Mass Storage Products Distributor/U25D Federal Distributor
$10,000,000 - and up $15,000,000 - and up
--- ---
Solutions Distributor Volume CAD/Speciality Distributor / U80D
$50,000,000 - and up $50,000,000 - and up
--- ---
Calculator Distributor / UD
$1,000,000 - and up
---
================================================================================
STATEMENT OF OWNERSHIP:
Form of Organization: (i.e. Corporation, General Partnership, Limited
Partnership, Sole Proprietor): CORPORATION
For a Corporation, specify whether: Publicly Held: X Privately Held: State
of Incorporation/Organization: DELAWARE
Identify Company ownership and management structure as follows (attach
additional pages if necessary):
o Sole Proprietor: Identify all owners, officers and ownership percentages held
o Trust: Identify Trustee(s), Administrators and Beneficiaries of Trust
o Partnership: Identify all General Partners, Limited Partners, Officers and
ownership percentages held
Specify dollar investment of limited partners
o Privately Held Corporation: Identify all shareholders with class and percentage ownership,
Officers and Board of Director Members
o Publicly Held Corporation Identify owners of 20% or more of each class of shares with
class and percentage ownership, Officers and Board of
Director Members
NAMES TITLES OWNERSHIP INTEREST
Percentage Ownership (Dollar Type of Ownership Interest
Investment in Limited (Assets, Common or
Partners) Preferred Shares)
----------------- ------------------ ---------------------------- --------------------------
----------------- ------------------ ---------------------------- --------------------------
----------------- ------------------ ---------------------------- --------------------------
----------------- ------------------ ---------------------------- --------------------------
If Company is 100% owned by another corporation, identify the parent
corporation's ownership and management structure above and the identity of the
parent corporation below:
--------------------------------------------------------------------------------
Parent/Owner, including DBA(s)
--------------------------------------------------------------------------------
Address
( )
--------------------------------------------------------------------------------
City State Zip Telephone
( )
--------------------------------------------------------------------------------
State of Parent/Owner's Incorporation Fax
AUTHORIZED SIGNATURES HEWLETT-PACKARD COMPANY
/s/ Xxx Xxxxx /s/ Xxxxx Xxxxxxxxxx
--------------------------------- ------------------------------------
Authorized Signature Xxxxx Xxxxxxxxxx
Reseller Contracts & Negotiation Manager
XXX XXXXX
---------------------------------
Typed Name
GROUP VP - PRODUCT MGMT 4-1-98 March 31, 1999
--------------------------------- -------------- ---------------
Title Effective Date Expiration Date
[MICROAGE LETTERHEAD]
March 24, 1998
Xxx Xxxxxxxxxx
Reseller Contracts & Negotiation Manager
Hewlett-Packard Company
0000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000-0000
Dear Xxx:
The purpose of this letter is to modify the Hewlett-Packard Reseller Business
Terms, and the Hewlett-Packard US Distributor Agreement between Hewlett-Packard
and MicroAge Computer Centers, Inc. By agreeing to the changes below and signing
and returning this document, the Agreement will be modified accordingly.
RESELLER BUSINESS XXXXX
Xxxxxxx 0X0 XXXXXX CHANGE
Reword to state "Reseller will notify HP in writing, prior to the
intended date of change, unless otherwise restricted by law."
Section 4B RELATIONSHIP
Add to the end of last sentence "unless expressly permitted by an HP
authorized representative in writing in advance."
Section 6G ORDERS AND DELIVERY
Reword to read "Neither party will be responsible for failure or delay
in performance due to circumstances beyond its reasonable control, such
as labor disputes, natural disaster, shortage of or inability to obtain
labor, energy, and materials, war, riot, embargo, fire, or any other
act or condition beyond the reasonable control of the non-performing
party. Notwithstanding, nothing stated in this section shall relieve
Reseller from paying HP."
Section 15A Limitation of Liability and Remedies
Delete last sentence.
US DISTRIBUTOR AGREEMENT
Section 8D PAYMENT
Delete.
I hereby agree to the changes to the Hewlett-Packard Reseller Business Terms,
and the Hewlett-Packard US Distributor Agreement between Hewlett-Packard and
MicroAge Computer Centers, Inc.
HEWLETT-PACKARD COMPANY MICROAGE COMPUTER CENTERS, INC.
Signature: /s/ Xxxxx Xxxxxxxxxx Signature: /s/ Xxx Xxxxx
Printed Name: XXXXX XXXXXXXXXX Printed Name: XXX XXXXX
Title: Reseller Contract Mgr. Title: Group VP - Product Mgmt.
Date: 4-1-98 Date: 3/24/98
HP RESELLER BUSINESS TERMS
TABLE OF CONTENTS
1. DEFINITIONS
2. APPOINTMENT
3. STATUS CHANGE
4. RELATIONSHIP
5. PRICES
6. ORDERS AND DELIVERY
7. PAYMENT
8. WARRANTY
9. PRODUCT MODIFICATION
10. SUPPORT
11. SOFTWARE
12. TRADEMARKS
13. INTELLECTUAL PROPERTY PROTECTION
14. CONFIDENTIALITY
15. LIMITATION OF LIABILITY AND REMEDIES
16. RECORD-KEEPING AND AUDIT
17. CHANGES AND AMENDMENTS
18. TERM AND TERMINATION
19. POLICIES AND PROGRAMS
20. GENERAL
HP RESELLER BUSINESS TERMS
HEWLETT-PACKARD COMPANY ("HP") and (COMPANY NAME) ("Reseller") agree as follows:
1. DEFINITIONS
A. "Agreement" means the Signature Page containing the signatures of HP
and Reseller, these HP Reseller Business Terms, any attached
Agreement, Product Exhibits, Addenda, Product Categories, and the
applicable OPM.
B. "Delivery" means standard HP shipping to and arrival at the receiving
area at the "Ship To" address in the country where Resellees order is
placed, unless otherwise indicated on the quotation.
C. "Exhibits" are documents attached to, incorporated by reference in,
or added to this Agreement at a later date which describe the
Reseller relationship, Products, Support, marketing programs or other
business terms. "Product Exhibits" and "Product Categories" refer to
the Products available for purchase under this Agreement. "Addenda"
refer to particular Reseller relationships, Support offerings and
marketing programs.
D. "Operations Policy Manual" (OPM) is a document which further
describes the specific relationship and obligations between HP and
Reseller under this Agreement.
E. "Net Reseller Price" for Products purchased under this Agreement
means the HP List Price in effect at the time an order from Reseller
is received by HP, less the applicable discounts based on Resellers
volume, other commitments or elections specified in Exhibits and this
Agreement.
F. "Products" means hardware, Software, documentation, accessories,
supplies, parts and upgrades that HP authorizes Reseller to purchase
or license under this Agreement and that are determined by HP to be
available from HP upon receipt of Resellees order. "Custom Products"
means Products modified, designed or manufactured to meet Reseller or
end-user customer requirements.
G. "Software" means one or more programs capable of operating on a
controller, processor or other hardware Product ("Device"). Software
is either a separate Product, included with another Product ("Bundled
Software), or fixed in a Device and not removable in normal operation
("Firmware").
H. "Specifications" means specific technical information about HP
Products which is published in HP Product manuals and technical data
sheets in effect on the date HP ships Resellers order.
I. "Support" means hardware maintenance and repair; Software updates and
maintenance; training; and other standard Support services provided
by HP. "Custom Support" means any agreed non-standard Support,
including consulting and custom project services.
2. APPOINTMENT
A. HP appoints Reseller as an authorized, non-exclusive Reseller for the
purchase and resale or sublicense of Products subject to the terms
and conditions of this Agreement.
B. The nature and scope of Resellers authorization, including any
geographic, vertical market or other restrictions, are mainly
detailed in the attached Agreement, and Addenda. The Products covered
by Resellees authorization, including any discounts and commitment
levels, are detailed in the attached
Product Exhibits and Product Categories. Other policies, procedures,
terms and conditions applicable to this Agreement are contained in
the OPM.
C. Reseller accepts appointment on these terms and conditions.
3. STATUS CHANGE
A. If Reseller wishes to:
1. Change its name;
2. Add, close or change an HP-approved shipment, delivery or other
HP-authorized location;
3. Undergo a merger, acquisition, consolidation or other
reorganization with the result that any entity controls 25% or
more of Resellers capital stock or assets after such
transaction, or assumes management of Reseller operations; then
Reseller will notify HP in writing at least ten (10) working
days prior to the intended date of change and provide HP all
information and documents requested by HP for the purpose of
evaluating such status change.
B. HP will promptly notify Reseller of its consent to the continuation
of Resellees authorization following such a change in status,
provided that HP may terminate this Agreement immediately upon notice
in the event HP does not consent to such change Pending HP's
notification, HP will have no obligation to perform under this
Agreement.
4. RELATIONSHIP
A. Reseller and HP are independent contractors for purposes of this
Agreement. This Agreement does not establish a franchise, joint
venture or partnership, or create any relationship of employer and
employee, master and servant, or principal and agent between the
parties.
B. Neither party will have, nor represent that it has, any power, right,
or authority to bind the other party, or to assume or create any
obligation or responsibility, express or implied, on behalf of the
other party without such other party's express written consent
Reseller acknowledges that any commitment made by Reseller to its
customers with respect to price, quantities, delivery,
specifications, warranties, modifications, interfacing capability or
suitability will be Resellees sole responsibility, and Reseller will
indemnify HP from liability for any such commitment by Reseller.
C. This Agreement applies only to the Products listed on the Product
Exhibits, and the relationship between the parties is non-exclusive.
Reseller acknowledges that HP may market other products, including
products in competition with those listed on the Product Exhibits,
without making them available to Reseller. HP acknowledges that
Reseller may market other products, including those in competition
with those listed on the Product Exhibits. Each party reserves the
right to advertise, promote and sell any product, including Products
listed on the Product Exhibits, in competition with the other party.
D. HP will not be deemed a party to any agreement between Reseller and
any subsequent purchaser or licensee.
5. PRICES
A. Net Reseller Price includes shipment arranged by HP according to HP
standard commercial practice. HP reserves the right to charge
Reseller for any special routing, packing, handling or insurance
requested by Reseller and agreed to by HP. Orders shipped under
special routing instructions must be separately agreed upon and may
be subject to additional charges.
B. Prices are exclusive of, and Reseller will pay, applicable sales,
use, service, value added or like taxes, unless Reseller has provided
HP with an appropriate exemption certificate for the Delivery
jurisdiction, or HP agrees the transaction is otherwise exempt.
C. HP reserves the right to change prices and discounts upon reasonable
notice or as specified in Exhibits or the OPM. If Reseller is unsure
of the List Price to use in calculating Net Reseller Price for any
Product, Reseller should contact its HP sales representative or
relationship manager.
D. List prices are suggested prices for resale to end-user customers and
a basis for calculating Net Reseller Price. Reseller has the right to
determine its own resale prices, and no HP representative will
require that any particular resale price be charged by Reseller or
grant or withhold any benefits to Reseller based on Resellees resale
pricing policies. Reseller agrees that it will promptly report any
effort by HP personnel to interfere with its pricing policies
directly to an HP officer or senior sales manager.
E. Upon request from Reseller, HP may at its discretion grant special
pricing for particular end-user customer transactions. In good faith
HP may retract the special pricing at any time before acceptance by
the end-user customer. HP may extend the pricing on an exclusive or
non-exclusive basis and may condition the pricing on a pass-through
of all or part of the non-standard offering extended by HP.
F. HP may, from time to time, offer Reseller certain Products on special
promotional terms and conditions. All such offerings may be subject
to pricing or discounts different from those provided for in this
Agreement. Such offerings may not, in some cases, apply towards
Resellees volume or other commitments, and may not be eligible for
other standard benefits, including but not limited to promotional
allowance funds, price protection or stock adjustments.
6. ORDERS AND DELIVERY
A. HP will honor written orders from Reseller unless other methods are
agreed upon in writing. Resellees orders must reference this
Agreement and comply with the minimum order, release, destination
("Shipment" address) and other requirements specified in Addenda,
Exhibits and/or the OPM. Orders must also specify Delivery dates
within periods specified in the OPM.
B. Reseller will issue orders from approved locations within its
organization and will specify HP authorized "Ship To" addresses
within the country where the order is placed, unless otherwise
agreed. Reseller is responsible for ensuring that only authorized
employees place, change or delete orders and that the orders conform
to all requirements of this Agreement.
C. All orders are subject to acceptance by HP.
D. Delivery is subject to Product availability at the time Resellees
order is received. HP will make every reasonable effort to meet
delivery dates quoted or acknowledged. If Products are in short
supply, HP will allocate them at HP's discretion.
E. Title to hardware Products and risk of loss and damage for any
Product will pass to Reseller at destination, provided that if
Products are shipped under Reseller's shipping instructions, title
and risk of loss and damage will pass to Reseller at HP's shipping
dock.
F. Transactions may be conducted through Electronic Data Interchange
("EDI") or other electronic methods, as agreed.
G. HP will not be liable for performance delays or for non-performance,
due to causes beyond its reasonable control.
7. PAYMENT
A. Reseller will pay invoices within thirty (30) days from the date of
HP's invoice. HP reserves the right to specify payment in advance or
other payment terms for credit reasons, or when Resellees financial
condition or relationship with HP so warrants, with respect to any
new or unshipped orders.
B. If Reseller fails to pay any sum when due or fails to perform under
this or any other agreement with HP after ten (10) days written
notice, HP may discontinue performance under this or any other
agreement between HP and Reseller.
C. Any Reseller claim for adjustment of an invoice is deemed to be
waived if Reseller fails to present such claim within ninety ( 90)
days from the date of the invoice. No claims, credits, or offsets may
be deducted from any invoice.
8. WARRANTY
Product warranty terms, conditions, exceptions, exclusions and disclaimers
are contained in the OPM, Exhibits and where applicable with Products.
9. PRODUCT MODIFICATION
A. HP reserves the right to make changes in the design or Specifications
of Products.
B. Reseller is responsible for any modification it makes to Products or
for any commitment made with respect to special interfacing,
compatibility or suitability of Products for specific applications.
C. If HP believes Resellees modifications may have an adverse effect on
Product support, marketing and technical specifications, HP reserves
the right to modify this Agreement.
10. SUPPORT
Reseller may be eligible to participate in HP Support programs. Support
terms and conditions are contained in the OPM and/or Exhibits, and Program
guides which may be supplied separate from this agreement.
11. SOFTWARE
Software distribution rights and license terms are contained in the OPM
and/or Exhibits, and where applicable with Products.
12. TRADEMARKS
A. From time to time, HP may authorize Reseller to display one or more
designated HP trademarks, logo types, trade names and insignia ("HP
Marks"). Reseller may display HP Marks solely to promote Products.
Any display of HP Marks must be in good taste, in a manner that
preserves their value as HP Marks, and in accordance with standards
provided by HP for their display. Reseller will not use any name or
symbol in a way which may imply that Reseller is an agency or branch
of HP; Reseller will discontinue any such use of a name or xxxx as
requested by HP. Any rights or purported rights in any HP trademarks
acquired through Resellees use belong solely to HP.
B. Reseller grants HP the non-exclusive, royalty free right to display
Resellees trademarks in advertising and promotional material solely
for directing prospective purchasers of Products to Resellers selling
locations. Any display of the trademarks must be in good tame, in a
manner that preserves their value as Resellers trademarks, and in
accordance with standards provided by Reseller for their display. Any
rights or purported
rights in any Reseller trademarks acquired through HP's use belong
solely to Reseller.
13. INTELLECTUAL PROPERTY PROTECTION
A. HP will defend or settle any claim against Reseller, (or enduser
customer, or third parties to whom Reseller is authorized by HP to
resell or sublicense), that Products or Support (excluding Custom
Products and Custom Support), delivered under this Agreement infringe
a patent, utility model, industrial design, copyright, trade secret,
mask work or trademark in the country where. Products are used, sold
or receive Support, provided Reseller.
1. promptly notifies HP in writing; and
2. cooperates with HP in, and grants HP sole control of the
defense or settlement.
B. HP will pay infringement claim defense costs, settlement amounts and
court-awarded damages. If such a claim appears likely, HP may modify
the Product, procure any necessary license, or replace it. If HP
determines that none of these alternatives is reasonably available,
HP will refund Resellees purchase price upon return of the Product if
within (1) one year of Delivery, or the Products net book value
thereafter.
C. HP has no obligation for any claim of infringement arising from:
1. HP's compliance with Resellers designs, specifications or
instructions;
2. HP's use of technical information or technology provided by
Reseller
3. Product modifications by Reseller or a third party;
4. Product use prohibited by Specifications or related application
notes; or
5. Use of the Product with products not supplied by HP.
D. These terms state HP's entire liability to Reseller and its customers
for claims of intellectual property infringement.
14. CONFIDENTIALITY
A. In the event that confidential information is exchanged, each party
will protect the confidential information of the other in the same
manner in which it protects its own like proprietary, confidential,
and trade secret information. If the party claiming the benefit of
the provision furnishes such information in writing and marks such
information as "Confidential" or if such information is provided
orally, then the transmitting party ("Discloser") will confirm in
writing to the receiving party ("Recipient") that it is confidential
within thirty (30) days of its communication. Such information will
remain confidential for three (3) years after the date of disclosure.
B. This Section imposes no obligation upon a Recipient with respect to
confidential information which (a) was in the Recipient's possession
before the Disclosure; (b) is or becomes a matter of public knowledge
through no fault of the Recipient; (c) is rightfully received by the
Recipient from a third party without a duty of confidentiality; (d)
is disclosed by the Discloser to a third party without a duty of
confidentiality on the third party; (e) is independently developed by
the Recipient; (o is disclosed under operation of law, or (g) is
disclosed by the Recipient with the Discloser's prior written
approval.
15. LIMITATION OF LIABILITY AND REMEDIES
A. Products are not specifically designed, manufactured or intended for
sale as parts, components or assemblies for the planning,
construction, maintenance, or direct operation of a nuclear facility.
Reseller is solely liable if Products or Support
purchased by Reseller are used for these applications. Reseller will
indemnify and hold HP harmless from all loss, damage, expense or
liability in connection with such use.
B. To the extent HP is held legally liable to Reseller , HP's liability
is limited to:
1. Payments arising from warranty claims and as described in
Section 13 above;
2. Damages for bodily injury;
3. Direct damages to tangible property up to a limit of U.S.
$1,000,000; and
4. Other direct damages for any claim based on a material breach
of Support services, up to a maximum of twelve (12) months of
the related Support charges paid by Reseller during the period
of material breach.
C. Notwithstanding Section 15 B above, in no event will HP or its
subsidiaries, affiliates, subcontractors or suppliers be liable for
any of the following:
1. Actual loss or direct damage that is not listed in Section 15 B
above;
2. Damages for loss of data, or software restoration;
3. Damages relating to Resellers procurement of substitute
products or services (i.e., "cost of cover"); or
4. Incidental, special or consequential damages (including
downtime costs or lost profits).
D. THE REMEDIES IN THIS AGREEMENT ARE RESELLER'S SOLE AND EXCLUSIVE
REMEDIES.
16. RECORD-KEEPING AND AUDIT
A. For purposes such as Product safety notification, operational problem
correction and contract compliance, Reseller will maintain records of
second-tier reseller and/or customer purchases, which at a minimum
must include such purchasees name, address, phone number, date of
sale, Product numbers, quantities, serial numbers, and shipment
address.
B. HP may, from time to time, give notice to Reseller of its intention
to verify and audit Resellers compliance with this Agreement or with
related marketing program terms and conditions. The auditor will be
given prompt access, either on-site or through other means, to
Resellees customer, inventory or other records.
C. Further record-keeping and audit requirements may be contained in
Agreement, Addenda and/or the OPM.
17. CHANGES AND AMENDMENTS
A. From time to time, HP may add Products to or delete them from Product
Exhibits; obsolete Products; change List Prices or discounts;
implement or change HP policies or programs; or otherwise amend this
Agreement at HP's discretion, after reasonable notice to Reseller in
writing.
B. Any amendment will automatically become a part of this Agreement on
the effective date specified in the notice, unless Reseller provides
HP with written notice of its objection to such amendment within
fifteen (15) days of Resellers receipt of the notice. If agreement to
the Amendment is not reached by both HP and Reseller within thirty
(30) days after HP's receipt of Resellers objection, either party may
terminate this Agreement.
C. Each party agrees that the other has made no commitments regarding
the duration or renewal of this Agreement beyond those expressly
stated in this Agreement.
18. TERM AND TERMINATION
A. Subject to applicable law, either party may terminate this Agreement
without cause at any time upon sixty (60) days' written notice or
with cause at any time upon thirty (30) days' written notice to the
other party. Unless earlier terminated as provided herein, this
Agreement will expire on March 31, 1999, but will continue to apply
to orders previously accepted by HP.
B. If either party becomes insolvent, is unable to pay its debts when
due, files for bankruptcy, is the subject of involuntary bankruptcy,
has a receiver appointed, or has its assets assigned, the other party
may terminate this Agreement without notice and may cancel any
unfulfilled obligations.
C. If either party gives the other notice of termination or advises the
other of its intent not to renew this Agreement, HP may require that
Reseller pay cash in advance for additional shipments until the
remaining term, regardless of Resellers previous credit status, and
may withhold all such shipments until Reseller pays its outstanding
balance.
D. Upon termination or expiration, Reseller will immediately cease to be
an authorized HP Reseller and will refrain from representing itself
as such and from using any HP trademark or name. Authorization of
Reseller and its Authorized Resellers to use any HP Xxxx will cease
upon such termination or expiration.
E. Upon any termination or expiration, HP may require that Reseller
return, against outstanding balance or for repurchase, any HP
Products purchased under this Agreement on HP's then current Product
Exhibits, which are in their unopened, original packaging and
marketable as new merchandise.
The repurchase price shall be the lower of either the Net Reseller
Price on the date of termination or expiration or Resellees original
purchase price, in each case less any promotional or other discounts
or price protection or other credits extended by HP to Reseller for
the HP Product. Reseller should contact its HP sales representative
for information about the items eligible for repurchase and
instructions for their return at HP's expense.
F. Upon termination or expiration, all rights to any accrued HP
promotional allowance funds and HP promotional services will
automatically lapse.
G. All obligations concerning outstanding transactions, warranties,
Support, software, intellectual property protection, limitations of
liability and remedies, confidentiality, and the general terms and
conditions will survive termination or expiration, except that the
provisions for confidentiality and Support will survive only through
the periods set forth in this Agreement
19. POLICIES AND PROGRAMS
From time to time, HP may offer or change HP policies and promotional or
other marketing programs, including but not limited to programs involving
promotional allowances, product demonstration and development unit
purchases, and Support. Participation in such programs will be subject to
the then current terms and conditions of those programs.
20. GENERAL
A. Neither party may assign or transfer any rights or obligations
hereunder without prior written consent of the other party provided
that HP may assign or transfer all such rights and obligations to
other HP entities, and the right to receive payments to third
parties, without consent.
B. Neither party's failure to enforce any provision of this Agreement
will be deemed a waiver of that provision or of the right to enforce
it in the future.
C. Reseller will conduct all its activities relating to its business
with HP in accordance with the highest standards of ethics and
fairness as well as compliance with applicable law. HP may suspend
performance of this Agreement if Reseller fails to do so.
D. Reseller who is expressly authorized by HP in writing to export,
re-export or import Products, technology or technical data purchased
hereunder, assumes responsibility for complying with applicable laws
and regulations and for obtaining required export and import
authorizations. HP may suspend performance if Reseller is in
violation of any applicable laws or regulations.
E. This Agreement will be governed by the laws of the State of
California.
F. To the extent that any provision of this Agreement is determined to
be illegal or unenforceable in a particular country, the remainder of
the Agreement will remain in full force and effect. The offending
provision will be deemed amended by the parties so as to make it
enforceable and to the extent possible, have consequences which are
substantially the same as what was intended by the parties.
G. The United Nations Convention on Contracts for the International Sale
of Goods will not apply to this Agreement or to transactions
processed under this Agreement.
H. All notices that are required under this Agreement and OPM will be in
writing and will be considered given as of twenty-four (24) hours
after sending by electronic means, facsimile transmission, overnight
courier, or hand delivery, or as of five (5) days of certified
mailing and appropriately addressed to 0000 Xxxxxxx Xxxxx Xxxxxxxxx,
Xxxxx Xxxxx, XX 00000-0000, M/S 54UHC.
I. This Agreement constitutes the entire understanding between HP and
Reseller, and supersedes any previous communications, representations
or agreements between the parties, whether oral or written, regarding
transactions hereunder. Resellees additional or different terms and
conditions will not apply. Except as provided in Section 17 above, no
modification of this Agreement will be binding on either party unless
made in writing and signed by both parties.
J. In the event of a conflict, the following order of precedence will
apply: Agreement, OPM Agreement and Addenda, Product Exhibits , HP
Reseller Business Terms.
U.S. DISTRIBUTOR AGREEMENT
TABLE OF CONTENTS
1. APPOINTMENT
2. INTENTIONALLY OMITTED
3. DISTRIBUTOR RESPONSIBILITIES
4. MULTIPLE AGREEMENT DISCOUNTS
5. INTENTIONALLY OMITTED
6. INTENTIONALLY OMITTED
7. PRICES
8. PAYMENT
9. ORDERS AND DELIVERY
10. INTENTIONALLY OMITTED
11. INTENTIONALLY OMITTED
12. INTENTIONALLY OMITTED
13. INTENTIONALLY OMITTED
14. INTENTIONALLY OMITTED
15. RECORD-KEEPING AND AUDIT
16. INTENTIONALLY OMITTED
17. INTENTIONALLY OMITTED
18. INTENTIONALLY OMITTED
19. INTENTIONALLY OMITTED
20. INTENTIONALLY OMITTED
21. U.S. GOVERNMENT
22. INTENTIONALLY OMITTED
23. INTENTIONALLY OMITTED
24. INTENTIONALLY OMITTED
25. INTENTIONALLY OMITTED
26. INTERNATIONAL SALES
U.S. DISTRIBUTORSHIP AGREEMENT
1. APPOINTMENT
In addition to the terms set forth in Section 2 of the HP Reseller
Business Terms, the following will apply:
A. HP appoints Reseller as an authorized, non-exclusive distributor
("Distributor") for marketing the Products listed on the Product
Exhibits and Product Categories.
B. Distributor is in the business of distributing Products to and
supporting selling locations owned and operated by resellers. These
resellers may be, depending upon their HP authorization, (i)
distributor authorized, solutions focused value-added resellers
("DARs"), or (ii) second-tier resellers (collectively, "Authorized
Resellers").
C. With respect to specific "Type One" Volume Products as defined in the
OPM, which HP may identify in the Product Exhibits or Product
Categories, HP may authorize Distributor to resell such Products to
(i) resellers which are not HP-authorized or (ii) or end-user
customers who are not purchasing for the purpose of resale
(collectively, "Customers"), as described more particularly in other
Exhibits.
D. Distributor desires to acquire Products as permitted by this
Agreement.
3. DISTRIBUTOR RESPONSIBILITIES
A. Distributor may sell Products only to those of its Authorized
Resellers and/or Customers who have been appointed by HP or as
permitted under this Agreement.
B. Distributor shall ensure that Authorized Resellers meet HP's
qualifications and comply with HPs terms and conditions for those
Authorized Resellers, and with Distributor's standard agreements and
business policies. Distributor also agrees to report violations of
HP's terms and conditions by Authorized Resellers to HP in a timely
manner, and to make its Authorized Reseller agreements available to
HP for review upon request.
C. Shipments of Products to non-Authorized Resellers, or to Authorized
Resellers who sell such Products in violation of HP's "Selling and
Sourcing Restrictions," eligibility criteria, qualifications, added
value requirements, or other limitations on Reseller activity as set
forth in this Agreement constitute a breach of this Agreement, and
may result in termination of this Agreement Distributor agrees to pay
to HP an amount equivalent to the discount received from HP for such
shipments.
D. HP may withdraw its permission for sales to a particular Authorized
Reseller(s), or to all Authorized Resellers, with or without cause,
at any time, by notifying Distributor and Distributors Authorized
Reseller(s) in writing. Upon receipt of such notice, Distributor will
immediately discontinue shipments of Products to the affected
Authorized Reseller(s).
E. Distributor agrees to:
1. Focus its activities on the marketing and sales of Products
identified in this Agreement by strictly conforming its
Authorized Reseller recruitment, marketing, and sales to a
mutually agreed marketing development plan signed by HP and
Distributor.
2. Represent Products fairly to all Authorized Resellers and
Customers.
3. Forward promptly to Authorized Resellers and to Customers all
technical sales and promotional materials, suggested price
lists and other information provided by HP for the purpose of
reshipment to such Authorized Resellers and Customers.
4. Provide Authorized Resellers and Customers with any HP
ergonomics information, including, where applicable, HP Working
in Comfort materials (in paper and electronic form), any
warning or advisory tags, labels, or other information relating
to the use of Products containing keyboards.
5. Ensure that ongoing pre-sales support and post-sales technical
support for Products is provided to all Authorized Resellers
and Customers. Distributor agrees to maintain or make available
such qualified personnel as necessary to provide timely and
knowledgeable support services.
6. Provide or arrange for technical support relating to Products
to Authorized Resellers and Distributors own sales staff.
7. Ensure that no sale, advertising, promotion, display or
disclosure of any features, availability or pricing of any new
Product takes place before HP's public announcement of that
Product
8. Respond promptly to all end-user Customer inquiries or requests
related to HP Products.
9. Authorize HP's representatives to call on Authorized Resellers
and/or Customers for Product training and other objectives.
10. Report promptly to HP all suspected defects in HP Products.
11. Ensure that its employees complete any required training
courses designated by HP.
12. Confer periodically with HP at HP's request on matters relating
to market conditions, sales forecasting, and Product planning.
13. Provide Authorized Resellers with access to HP designated
service programs or to other HP approved service plans.
14. Comply with the HP Product Categories.
F. Distributor may advertise on a United States-wide basis on behalf of
itself and its Authorized Resellers.
G. Before the tenth day of each month, and through a process defined by
HP and Distributor, Distributor will send to HP a summary of any
changes in any Authorized Resellees address, phone number or
ownership.
4. MULTIPLE AGREEMENT DISCOUNTS
Unless otherwise specified by HP in writing, purchases of Products under
this Agreement and purchases under any other Addenda, or HP Agreement are
exclusive of each other for the purpose of calculating volume commitment
and discount levels.
7. PRICES
In addition to the terms set forth in Section 5 of the HP Reseller
Business Terms, the following will apply:
A. Nothing contained in this Agreement shall prevent an Authorized
Reseller or Customer from purchasing individually, on its own credit
and account, directly from HP should it elect to do so, but nothing
shall obligate HP to sell directly to any Customer.
8. PAYMENT
In addition to the terms set forth in Section 7 of the HP Reseller
Business Terms, the following will apply:
A. Distributor will furnish HP with copies of its financial reports,
including but not limited to Distributor's latest balance sheet,
profit and loss statement, and other pertinent financial information
as HP deems necessary to determine Distributors credit worthiness.
B. Upon request, HP will provide Distributor with invoice copies
accounting for sales of Products and services by HP to Distributor.
(Distributor shall have ninety (90) days from date of HP's invoice to
raise any questions or objections to this statement of account.)
C. In the event that Distributor and HP are unable to resolve any
questions or objections to the statement of Distributor's account or
invoice, Distributor may file suit against HP at any time up to one
(1) year after the date of invoice in question.
D. Distributor grants and HP reserves a purchase money security interest
in each Product purchased under this Agreement and in any proceeds
thereof for the amount of the purchase price from HP. Upon request by
HP, Distributor will sign any document required to perfect such
security interest. Payment in full of the purchase price of a Product
purchased will release the security interest in that Product.
9. ORDERS AND DELIVERY
In addition to the terms set forth in Section 6 of the HP Reseller
Business Terms, the following will apply:
A. HP will honor electronic, fax and telephone orders from Distributors
approved locations.
B. HP reserves the right to schedule and reschedule any order, at HP's
discretion, and to decline any order for credit reasons or because
the order specifies an unreasonably large quantity or makes an
unreasonable shipment request.
C. Distributor agrees to accept all deliveries of Products as scheduled.
If Distributor fails to accept a scheduled delivery, or takes any
action which delays or hinders HP's ability to meet any delivery
schedule, HP reserves the right to charge Distributor for any costs
resulting from such action, including return freight fees and
stocking charges. In addition, HP reserves the right to cancel any
order, the shipment of which Distributor refuses to accept or delays,
and to reallocate such order.
D. HP will use reasonable efforts to meet scheduled shipment dates.
However, HP will not be liable for delay in meeting a scheduled
shipment date. When Products are in short supply,
HP reserves the right to allocate Products equitably, at HP's
discretion.
E. HP may require Distributor and/or its Authorized Resellers to
separately need additional requirements to be eligible to sell
certain Products, as specified in this Agreement. HP will notify
Distributor of those Authorized Resellers eligible to resell the
Products. Distributor may not ship these Products to Authorized
Resellers who have not met the HP-defined criteria.
15. RECORDKEEPING AND AUDIT
In addition to the terms set forth in Section 16 of the HP Reseller
Business Terms, the following will apply:
A. HP may require Distributor to provide HP or HP's designate with
Product inventory, sales and order reports. These reports may require
information such as total units of selected Products sold and held in
all inventory, by month for each approved location in a format
specified by HP. HP may require monthly reports incorporating the
previous month's data for each approved location.
B. In addition, Distributor must comply with any reporting requirements
for HP marketing and promotional programs.
C. At HP's discretion and upon reasonable notice to Distributor, HP or
HP's designate will be given prompt access during normal business
hours, either on site, or through other means specified by HP, to
Distributor's customer records, inventory records and other books and
records of account specifically related to Products as HP believes
are reasonably necessary to verify and audit Distributor's compliance
with this Agreement.
D. Failure to promptly comply with HP's request will be considered a
repudiation of this Agreement justifying HP's termination of this
Agreement with thirty (30) day's notice without further cause.
E. HP may recover all reasonable actual costs associated with compliance
verification procedures from any promotional funds, rebate funds or
any other HP accrued funds due Distributor or, in the case of an
Authorized Reseller, from the reseller(s)' accrued promotional
marketing funds, rebate funds or any other HP accrued funds for the
reseller(s).
F. HP may debit Distributor for all wrongfully claimed discounts,
rebates, promotional allowances or other amounts determined as a
result of HP's audit.
G. HP may from time to time, send to Distributor a list of serial
numbers of designated Products for which HP tracks unauthorized
sales. Distributor agrees to identify to which Authorized Reseller or
Customer each serial number was shipped and to forward this
information to its HP representative within a period of not more than
twenty-one (21) days from the date of HP's notice.
H. HP may, from time to time, find it necessary to audit an Authorized
Reseller for the purpose of determining its compliance with the terms
and conditions of its HP authorization. HP will identify to
Distributor.
1. The Authorized Reseller (s) to be audited;
2. A list, by HP Product Number, of "designated products" of
concern;
3. The period of time the audit will cover; and
4. A deadline by which HP must receive associated sell-through
data from Distributor.
Distributor agrees to assist HP by providing HP within ten (10) days
from the date of HP's notice, a list of the quantities and
serial numbers of "Designated Products" that have been shipped to
Authorized Reseller (s) during the audit period.
21. U.S. GOVERNMENT
A. Unless Distributor has obtained HP's prior written consent,
Distributor is prohibited from issuing any 'Letter of Supply', from
guaranteeing to supply, or from selling, supplying, or providing any
person with HP Product for resale under any GSA contract. Unless
Distributor has first received a Letter of Supply or other written
authorization from HP, Distributor is prohibited from listing, and
shall not list, Products on any GSA schedule or contract, or on any
procurement, schedule, or contract.
B. No U.S. Government procurement regulations will be deemed included in
this Agreement or binding on either party unless specifically
accepted in writing and signed by both parties.
26. INTERNATIONAL SALES
Notwithstanding Section 20.D of the HP Reseller Business Terms, without
HPs prior written consent Distributor will not export Products outside the
U.S. nor will Distributor sell Products to any Authorized Reseller or
Customer for export outside the U.S. Upon written consent from HP,
Distributor may export Products, either directly or indirectly, provided
that Distributor first obtains a license from the United States Department
of Commerce or any other agency or department of the United States
government or the regulatory agency of any other Government, as required,
and provided that Distributor complies with all other obligations set
forth in Section 20.D of the HP Reseller Business Terms.
U.S. RESELLER AGREEMENT
TABLE OF CONTENTS
1. APPOINTMENT
2. STATUS CHANGE
3. RESELLER RESPONSIBILITIES
4. MULTIPLE AGREEMENT DISCOUNTS
5. INTENTIONALLY OMITTED
6. INTENTIONALLY OMITTED
7. PRICES
8. INTENTIONALLY OMITTED
9. ORDERS AND DELIVERY
10. SOFTWARE
11. TRADEMARKS
12. INTENTIONALLY OMITTED
13. LIMITATION OF LIABILITY AND REMEDIES
14. INTELLECTUAL PROPERTY PROTECTION
15. RECORD-KEEPING AND AUDIT
16. CHANGES AND AMENDMENTS
17. TERM AND TERMINATION
18. RELATIONSHIP
19. POLICIES AND PROGRAMS
20. GENERAL
21. NUCLEAR APPLICATIONS
22. U.S. GOVERNMENT
23. CONFIDENTIALITY
24. NOTICES
25. RESELLER REPORTING
26. INTERNATIONAL SALES
U.S. RESELLER AGREEMENT
1. APPOINTMENT
A. Hewlett-Packard Company ("HP") appoints Reseller as an authorized,
non-exclusive Reseller for marketing the HP Products listed on the
Product Exhibits and sold by and purchased from an HP Authorized
Distributor.
B. Reseller's appointment is subject to the terms and conditions set
forth in this Agreement, Addenda, Product Exhibits and HP Product
Categories (collectively, the "Agreement") for the period from the
effective date through the expiration date of this Agreement.
Reseller accepts appointment on these terms.
C. This Agreement is intended as an addition and amendment to any other
terms and conditions of sale to which Reseller and Distributor may
have mutually agreed with regard to Distributor sale and Reseller
purchase of Products supplied by HP. If HP approved Distributor's
sale of these Products to Reseller, HP will be regarded as a
third-party beneficiary of the agreements and commitments made
herein.
2. STATUS CHANGE
A. Reseller's approved company names, including DBA(s) and selling
locations, are listed on the HP Exhibit L and are the only names and
selling locations under which Reseller may represent and sell HP
Products. If Reseller wishes to:
1. Change its name;
2. Add, close or change an approved shipment, delivery or other
HP-authorized location;
3. Undergo a merger, acquisition, consolidation or other
reorganization with the result that any entity controls 25% or
more of Reseller's capital stock or assets after such
transaction; or
4. Undergo a significant change in control or management of
Reseller operations;
then Reseller shall notify HP in writing prior to the intended date
of change. In no event may such notice be provided more than ten (10)
days after the change has occurred.
B. HP agrees to promptly notify Reseller of its approval or disapproval
of any proposed change, provided that Reseller has given HP all
information and documents reasonably requested by HP.
C. HP must approve proposed Reseller changes prior to any obligation of
HP to perform under this Agreement with Reseller as changed.
3. RESELLER RESPONSIBILITIES
A. Reseller agrees to:
1. Advertise, promote, demonstrate and sell HP Products only
within the geographies defined in this Agreement and, when
defined by the HP Product Categories, on a face-to-face basis.
2. Represent HP Products fairly to all Customers.
3. Forward promptly to Customers all technical sales and
promotional materials, suggested price lists and other
information provided by HP for the purpose of reshipment to
Customers.
4. Provide Customers with any HP ergonomics information,
including, where applicable, HP WORKING IN COMFORT materials
(in paper and electronic form) and any warning or advisory
tags, labels, or other information relating to the use of HP
Products containing keyboards.
5. Ensure that ongoing pre-sales support and post-sales technical
support of HP Products and Reseller's value-added solutions is
provided to all Customers. Reseller agrees to maintain or make
available such qualified personnel as necessary to provide
timely and knowledgeable support services sufficient to ensure
a high level of Customer satisfaction.
6. Ensure that no sale, advertising, promotion, display, or
disclosure of any features, availability or price of any new HP
Product takes place before HP's public announcement of that
Product.
7. Respond promptly to all Customer inquiries or requests related
to HP Products.
8. Report promptly to HP all suspected defects in HP Products.
9. Ensure that its employees complete any required training
courses and certification designated by HP.
10. Confer periodically with HP at HP's request on matters relating
to market conditions, sales forecasting, and Product planning.
11. Use catalogs and telemarketing sales techniques only in
conformity with current HP policies and only as a complement to
face-to-face sales activity.
12. Identify and keep current a primary and secondary support
contact for both marketing communications and post-sales
technical support at each approved Selling Location.
13. Provide Customers with a written invoice stating the Customers
name and address, the date of purchase, and serial numbers, if
any, of HP Products. Reseller will retain such records, or
their equivalent, to enable Reseller to notify Customers of
Product safety information, corrections for operational
problems, and the like.
B. Reseller may advertise only those HP Products which it is authorized
to sell. Reseller's advertising may in no way mention Reseller as an
authorized reseller for any other HP Product.
4. MULTIPLE AGREEMENT DISCOUNTS
Unless otherwise specified by HP in writing, purchases of HP Products
under any HP Product Exhibit in this Agreement and purchases under any
other HP Product Exhibits in this or any other HP Agreement are exclusive
of each other for the purpose of calculating volume commitment and
discount levels.
7. PRICES
Upon request from Reseller, at its discretion, HP may grant special
pricing for particular end-user Customer transactions. In good faith, HP
may retract the special pricing any time before acceptance by
the end-user Customer. HP may extend the pricing on an exclusive or
non-exclusive basis and may condition the pricing on a pass-through to the
end-user of all or part of the non-standard offering extended by HP.
9. ORDERS AND DELIVERY
HP may, from time to time, offer Reseller certain HP Products on special
promotional terms. Such purchases may not, in some cases, be eligible for
promotional allowance funds, price protection or stock adjustments. With
these exceptions, Reseller's purchases in response to these special
promotional offers are subject to the terms set forth in Reseller's
Agreement.
10. SOFTWARE
Reseller is granted the right to distribute software materials supplied by
HP only in accordance with the license terms supplied with these
materials. Reseller may alternatively acquire the software materials from
HP for its own demonstration purposes in accordance with the terms for use
in those license terms.
11. TRADEMARKS
A. From time to time, HP may authorize Reseller to display one or more
designated HP trademarks, logo types, trade names, and insignia ("HP
Marks"). Reseller may display the HP Marks solely to promote HP
Products. Any display of the HP Marks must be in good taste, in a
manner that preserves their value as HP Marks, and in accordance with
standards provided by HP for their display. Reseller will not use any
name or symbol in a way which may imply that Reseller is an agency or
branch of HP; Reseller will discontinue any such use of a name or
xxxx as requested by HP. Any rights or purported rights in any HP
trademarks acquired through Reseller's use belong solely to HP.
B. Reseller grants HP the non-exclusive, royalty-free right to display
Reseller's trademarks in advertising and promotional material solely
for directing prospective purchasers of HP Products to Reseller's
Selling Locations. Any display of the trademarks must be in good
taste, in a manner that preserves their value as Reseller's
trademarks, and in accordance with standards provided by Reseller for
their display. Any rights or purported rights in any Reseller
trademarks acquired through HP's use belong solely to Reseller.
13. LIMITATION OF LIABILITY AND REMEDIES
A. The remedies provided in this Agreement are Reseller's sole and
exclusive remedies against HP. IN NO EVENT WILL HP BE LIABLE FOR LOSS
OF DATA, FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS) OR FOR ANY OTHER DAMAGES WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
B. Notwithstanding the foregoing, HP will be liable for damage to
tangible property, bodily injury or death to the extent a court of
competent jurisdiction determines that an HP Product sold under this
Agreement is defective and has directly caused such property damage,
bodily injury or death, provided that HP's liability for damage to
tangible property will be limited to $1,000,000 per incident or the
purchase price of the specific HP Products that caused such damage.
14. INTELLECTUAL PROPERTY PROTECTION
A. HP will defend or settle any claim against Reseller that any HP
Product furnished under this Agreement infringes a patent, utility
model, industrial design, copyright, trade secret, mask work or
trademark in the country where Reseller acquires or sells the Product
from HP, provided that Reseller:
1. Promptly notifies HP in writing of the claim; and
2. Cooperates with HP in and grants HP sole authority to control
the defense and any related settlement.
HP will pay the cost of such defense or settlement and any costs and
damages finally awarded by a court against Reseller.
B. HP's indemnity shall extend to Reseller's authorized Customers under
this Agreement provided they comply with the obligations above.
C. HP may procure for Reseller, its Customers and end-users the right to
continued sale or use, as appropriate, of the Product or HP may
modify or replace the Product. If a court enjoins the sale or use of
the Product and HP determines that none of the above alternatives is
reasonably available, or in the case of a settlement agreement which
binds HP, HP will have the option to replace the Product with a
non-infringing Product, modify the Product so it becomes
non-infringing at HP's expense, or repurchase the HP Product from
Distributor or Authorized Reseller at Net Distributor price less
depreciation.
D. HP has no obligation for any claim of infringement arising from:
1. HP's compliance with any designs, specifications or
instructions of Reseller;
2. Modification of the Product by Reseller or a third party;
3. Use of the Product in a way not specified by HP; or
4. Use of the Product with products not supplied by HP.
E. This Section states HP's entire liability for intellectual property
infringement by HP Products furnished under this Agreement.
15. RECORD-KEEPING AND AUDIT
A. At HP's discretion and upon reasonable notice to Reseller, HP or HP's
designate will be given prompt access during normal business hours,
either on site, or through other means specified by HP, to Reseller's
Customer records, inventory records, other books and records of
account specifically related to Products as which HP believes are
reasonably necessary to verify and audit Reseller's compliance with
the terms of this Agreement.
B. Failure to comply with HP's request will be considered a repudiation
of this Agreement justifying HP's termination of this Agreement on
fifteen (15) days notice without further cause.
C. HP may recover all reasonable actual costs associated with compliance
verification procedures from Reseller's HP promotional accrual
program funds accrued by Distributor(s), or by HP, on behalf of
Reseller, or by Reseller.
16. CHANGES AND AMENDMENTS
A. From time to time, HP may add Products to or delete them from the
Product Exhibits, or implement or change HP policies or programs, at
HP's discretion, after reasonable notice to Reseller. Additionally,
HP may give Reseller thirty (30) days, advance notice of any other
Amendment to this Agreement.
B. Any Amendment will automatically become a part of this Agreement on
the effective date specified in the notice.
C. Each party agrees that the other has made no commitments regarding
the duration or renewal of this Agreement beyond those expressly
stated in this Agreement.
17. TERM AND TERMINATION
A. Either party may terminate this Agreement without cause at any time
upon thirty (30) days' written notice or with cause at any time upon
fifteen (15) days' written notice.
B. Upon termination of this Agreement for any reason, Reseller will
immediately cease to be an authorized HP Reseller and will refrain
from representing itself as such and from using any HP trademark or
trade name. Authorization of Reseller to use any HP trademarks will
cease as of the effective date of any expiration or termination under
this Agreement.
C. Upon termination of this Agreement or expiration without renewal of
this Agreement, all rights to any accrued HP promotional allowance
funds will automatically lapse.
D. All obligations concerning indemnities, warranties, and limitations
of liability provided in this Agreement will survive termination or
expiration of this Agreement, except that the provisions for
confidentiality and support will survive only through the periods set
forth herein.
18. RELATIONSHIP
A. Reseller's relationship to HP will be that of an independent
contractor purchasing HP Products from Authorized Distributor(s) for
resale to Reseller's Customers. Neither party will have, nor
represent that it has, any power, right, or authority to bind the
other party, or to assume or create any obligation or responsibility,
express or implied, on behalf of the other party's name except as
expressly permitted by this Agreement or in a writing signed by HP.
B. Nothing stated in this Agreement shall be construed as making
Reseller and HP a franchise, joint venture or partnership, or as
creating the relationship of employer and employee, master and
servant, or principal and agent between the parties. Reseller will
not represent itself in any way that implies Reseller is an agent or
branch of HP. Reseller will immediately change or discontinue any
representation or business practice found to be misleading or
deceptive by Distributor or HP.
C. HP shall not be deemed a party to any agreement between Reseller and
Distributor or Customer.
D. Unless expressly authorized by HP in writing in advance, any
representation, warranty, or other commitment made by Reseller or
Distributor to its Customer with respect to price, quantities,
delivery, specifications, warranties, modifications, interfacing
capability or suitability will be Reseller's sole responsibility.
Reseller has no authority to modify any warranty provided with any HP
Product, or to make any other commitment on HP's behalf. Reseller
will indemnify HP from any liability arising from any such commitment
by Reseller.
E. List prices are suggested prices for resale to end-user Customers.
Reseller has the right to determine its own resale prices, and no HP
representative will require that any particular resale price be
charged by Reseller or grant or withhold any treatment to Reseller
based on Reseller's resale pricing policies. Reseller agrees that it
will promptly report any effort by HP personnel to interfere with its
pricing policies directly to an HP officer or manager.
F. Nothing contained in this Agreement shall prevent a Reseller from
purchasing individually, on its own credit and account directly from
HP should it elect to do so, but nothing shall obligate HP to sell
directly to Reseller.
19. POLICIES AND PROGRAMS
From time to time, HP may offer or change HP policies and programs, such
as but not limited to the HP promotional fund accrual program(s), Product
demonstration and development unit programs, Premier Support program and
other programs and policies, participation in which will be on the current
terms and conditions of those policies and programs.
20. GENERAL
A. Neither party may assign or transfer any rights or obligation in this
Agreement without the prior written consent of the other party. Any
attempted assignment or transfer will be deemed void.
B. Neither party's failure to enforce any provision of this Agreement
will be deemed a waiver of that provision or of the right to enforce
it in the future.
C. This Agreement constitutes the entire and only understanding between
the parties relating to its subject matter and supersedes all prior
representations, discussions, negotiations and agreement, whether
written or oral. HP hereby gives notice of objection to any
additional or inconsistent terms set forth in any purchase order or
other document issued by Distributor or Reseller. Except as provided
in paragraphs 16A and 16B of this Agreement, no modification of this
Agreement will be binding on either party unless made in writing and
signed by both parties.
D. In the event that any portion of this Agreement should conflict, the
terms and conditions defined in this U.S. Reseller Agreement take
precedence.
E. This Agreement will be governed by the laws of the State of
California.
F. If any clause of this Agreement is held to be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the
remainder of the Agreement will continue unaffected.
G. Neither party will be responsible for failure or delay in performance
due to circumstances beyond its reasonable control, such as labor
disputes, natural disaster, shortage of or inability to obtain labor,
energy, and materials, war, riot, embargo, fire, or any other act or
condition beyond the reasonable control of the non-performing party.
21. NUCLEAR APPLICATIONS
HP Products are not specifically designed, manufactured, or intended for
sale as parts, components, or assemblies for the planning, construction,
maintenance, operation or use in any nuclear facility. Reseller, on behalf
of itself and any direct or indirect end-user using HP Products for these
applications, agrees that HP is not liable in whole or in part for any
claim(s) or damage(s) arising from such use. If Reseller or any direct or
indirect end-users use HP Product for these applications, Reseller agrees
to indemnify and hold HP harmless from any claims for loss, cost, damage,
expense, or liability arising out of or in connection with the use and
performance of HP's Products or services in such nuclear applications.
22. U.S. GOVERNMENT
A. No U.S. Government procurement regulations will be deemed included
hereunder or binding an either party unless specifically accepted in
writing and signed by both parties.
B. Unless Reseller has obtained HP's prior written consent, Reseller is
prohibited from issuing any Letter of Supply, from guaranteeing to
supply, or from selling, supplying, or providing any person with HP
Product for resale under any GSA contract. Unless Reseller has first
received a Letter of Supply or other written authorization from HP,
Reseller is prohibited from listing, and shall not list, HP Products
on any GSA Schedule or contract.
23. CONFIDENTIALITY
In the event that confidential information is exchanged between HP and
Reseller, each party will protect the confidential information of the
other in the same manner in which it protects its own like proprietary,
confidential, and trade secret information, but, in any
event, not less than a reasonable degree of care. If the party claiming
the benefit of the provision furnishes such information in writing and
marks such information as "Confidential" or if such information is
provided orally, then the transmitting party ("Discloser") will confirm in
writing to the receiving party ("Recipient") that it is confidential
within thirty (30) days of its communication. Such information will remain
confidential for three (3) years after the date of disclosure.
This Section imposes no obligation upon a Recipient with respect to
confidential information which (a) was in the Recipient's possession
before the Discloser; (b) is or becomes a matter of public knowledge
through no fault of the Recipient; (c) is rightfully received by the
Recipient from a third party without a duty of confidentiality; (d) is
disclosed by the Discloser to a third party without a duty of
confidentiality on the third party; (e) is independently developed by the
Recipient; (f) is disclosed under operation of law; or (g) is disclosed by
the Recipient with the Discloser's prior written approval.
24. NOTICES
All notices and demands issued under the terms of this Agreement shall be
in writing, delivered by fax, personal service, first class mail, postage
prepaid or by registered mail to a location set forth in this Agreement or
to HP at 0000 Xxxxxxx Xxxxx Xxxxxxxxx, XX Xxx 00000, Xxxxx Xxxxx,
Xxxxxxxxxx 00000-0000, or at such different address as may be designated
by such party by written notice to the other party.
25. RESELLER REPORTING
Upon HP's request Reseller is required to provide HP with accurate HP
Product sell-to and inventory data in a format and frequency defined by
HP, using the HP-provided software utility or existing EDI standards.
Participation in HP programs will be reliant on Reseller's ability to
comply with program reporting requirements.
26. INTERNATIONAL SALES
Reseller will sell HP Products only to end-user Customers in the U.S., for
use in the U.S., and abide by any other geographic restrictions defined in
this Agreement unless otherwise authorized by HP in writing. Without HP's
prior written consent, Reseller will not export HP Products outside the
U.S. nor will Reseller sell HP Products for export outside the U.S.
U.S. GSA AGENT ADDENDUM
TABLE OF CONTENTS
1. APPOINTMENT
2. INTENTIONALLY OMITTED
3. INTENTIONALLY OMITTED
4. INTENTIONALLY OMITTED
5. VOLUME COMMITMENT LEVELS
6. INTENTIONALLY OMITTED
7. INTENTIONALLY OMITTED
8. INTENTIONALLY OMITTED
9. INTENTIONALLY OMITTED
10. INTENTIONALLY OMITTED
11. INTENTIONALLY OMITTED
12. INTENTIONALLY OMITTED
13. INTENTIONALLY OMITTED
14. INTENTIONALLY OMITTED
15. INTENTIONALLY OMITTED
16. INTENTIONALLY OMITTED
17. TERM AND TERMINATION
18. INTENTIONALLY OMITTED
19. INTENTIONALLY OMITTED
20. INTENTIONALLY OMITTED
21. INTENTIONALLY OMITTED
22. U.S. GOVERNMENT
23. INTENTIONALLY OMITTED
24. INTENTIONALLY OMITTED
25. INTENTIONALLY OMITTED
26. INTERNATIONAL SALES
U.S. GSA AGENT ADDENDUM
1. APPOINTMENT
A. Hewlett-Packard Company ("HP") appoints Reseller as an authorized,
non-exclusive Reseller for marketing certain HP Products sold by and
purchased from an HP authorized Distributor holding a valid General
Services Administration ("GSA") Federal Supply Service Information
Technology Schedule ("FSS IT") Contract and HP Federal Distributor
Addendum.
B. Reseller's appointment is subject to the terms of the U.S. Reseller
Agreement, the associated Volume Product Exhibits, this Addendum, and
HP Product Categories (collectively, the "Agreement") for the period
from the effective date through the expiration date of the Agreement.
Reseller accepts appointment on these terms.
C. Reseller ("GSA Agent") may market and sell under GSA Schedule only
those HP products which it is authorized to sell pursuant to its U.S.
Reseller Agreement.
5. VOLUME COMMITMENT LEVELS
GSA Agent minimum resale shipments for twelve (12) months under this
Addendum are $250,000 of HP Products, measured by Net Distributor Price
from HP to the Distributor.
If the term of this Agreement or any Addendum or new Product Exhibit is
less than twelve (12) months, an applicable twelve (12)-month volume
commitment level will be calculated for GSA Agent by projection over a
full twelve (12)-month term.
17. TERM AND TERMINATION
Either party may terminate this Addendum without cause at any time upon
thirty (30) days' written notice or with cause at any time upon fifteen
(15) days' written notice. Such termination will not necessarily impact
the remainder of Reseller's Agreement with HP.
22. U.S. GOVERNMENT
Unless GSA Agent has obtained HP's prior written consent, GSA Agent is
prohibited from issuing any Letter of Supply, from guaranteeing to supply,
or from selling, supplying, or providing any person with HP Product for
resale under any GSA contract. Unless GSA Agent has first received a
Letter of Supply or other written authorization from HP, GSA Agent is
prohibited from listing, and shall not list HP Products on any GSA
Schedule or contract.
26. INTERNATIONAL SALES
Without HP's prior written consent, GSA Agent will not export HP Products
to any customer outside the U.S., nor will GSA Agent sell HP Products for
export outside the U.S., with the following exception:
GSA Agent may sell HP Product for use outside of the U.S. if the end-user
Customer is a United States Government Agency or Department or has valid
purchasing authority from GSA list of authorized end-user agencies
("Purchaser"). Purchaser must be purchasing for use in connection with the
Government Agency or Department and must buy HP Products for resale or
transfer only to a U.S. Government Agency or Department. Any such foreign
sale shall be conducted in strict compliance with the statutes, rules and
regulations governing such sales, as promulgated by the U.S. Department of
Commerce and any other U.S. Government Agency.
HP 220V Products that are equivalent to Products on the GSA Product List
may be purchased by Distributor for these foreign sales at Net Distributor
Price based on U.S. List Prices. All associated warranties require return
of Products to HP in the U.S.
The HP 220V Product purchases are dependent on the currently available
inventory and do not apply toward order or sell-through milestones or
volume commitment levels, and are not eligible for the HP Advantage
program, rebates or other promotional programs. Shipments will be made
only to U.S. Shipment Locations approved by HP.
HEWLETT-PACKARD COMPANY
U.S. FEDERAL DISTRIBUTOR ADDENDUM
SIGNATURE PAGE
ICN # 829
LEGAL BUSINESS NAME MICROAGE COMPUTER CENTERS INC
ADDRESS 0000 XXXXX XXXXXXXX XXX
XXXX, XXXXX, XXX XXXXX XX 00000-0000
PHONE, FAX # (000)000-0000
E-MAIL/INTERNET ADDRESS ______________________________
DBA(s) ______________________________
THE DOCUMENTS BELOW GOVERN THE RELATIONSHIP BETWEEN HP AND YOU FOR THE PURCHASE
AND RESALE OF HP PRODUCTS.
ADDENDA:
X U.S. Federal Distributor
---
================================================================================
EXHIBIT ELECTION
HP AND DISTRIBUTOR AGREE THAT ITS VOLUME LEVEL, AT NET DISTRIBUTOR PRICE, FOR HP
PRODUCTS UNDER THE U.S. FEDERAL DISTRIBUTOR ADDENDUM A ABOVE FOR THE TERM OF
THIS DISTRIBUTOR'S AGREEMENT IS:
U.S. FEDERAL DISTRIBUTOR
___ LEVEL 1 $15,000,000 - and up
================================================================================
STATEMENT OF OWNERSHIP:
Form of Organization: (i.e. Corporation, General Partnership, Limited
Partnership, Sole Proprietor):_________________________
For a Corporation, specify whether: Publicly Held:_____ Privately Held:______
State of Incorporation/Organization: ________
Identify Company ownership and management structure as follows (attach
additional pages if necessary):
o Sole Proprietor Identify all owners, officers and ownership percentages held
o Trust: Identify Trustee(s), Administrators and Beneficiaries of Trust
o Partnership: Identify all General Partners, Limited Partners, Officers and
ownership percentages held
Specify dollar investment of limited partners
o Privately Held Corporation: Identify all shareholders with class and percentage ownership,
Officers and Board of Director Members
o Publicly Held Corporation: Identify owners of 20% or more of each class of shares with
class and percentage ownership, Officers and Board of
Director Members
NAMES TITLES OWNERSHIP INTEREST
Percentage Ownership (Dollar Type of Ownership Interest
Investment in Limited (Assets, Common or
Partners) Preferred Shares)
----------------- ------------------ ---------------------------- --------------------------
----------------- ------------------ ---------------------------- --------------------------
----------------- ------------------ ---------------------------- --------------------------
----------------- ------------------ ---------------------------- --------------------------
If Company is 100% owned by another corporation, identify the parent
corporation's ownership and management structure above and the identity of the
parent corporation below:
--------------------------------------------------------------------------------
Parent/Owner, including DBA(s)
--------------------------------------------------------------------------------
Address
( )
--------------------------------------------------------------------------------
City State Zip Telephone
( )
--------------------------------------------------------------------------------
State of Parent/Owner's Incorporation Fax
MICROAGE AUTHORIZED SIGNATURES MA FEDERAL INC. AUTHORIZED SIGNATURES
/s/ Xxxxxx Xxxx /s/ Xxxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Authorized Signature Authorized Signature
XXXXXX XXXX XXXXXXX X. XXXXX
--------------------------------- ------------------------------------
Typed Name Typed Name
VP OPERATIONS PRESIDENT
--------------------------------- ------------------------------------
Title Title
HEWLETT-PACKARD COMPANY
/s/ Xxxxx Xxxxxxxxxx March 31, 1999
--------------------------------- -------------- ---------------
Xxxxx Xxxxxxxxxx Effective Date Expiration Date
