EXHIBIT 10.7
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
RESALE AGREEMENT
This Agreement ("Agreement") is by and between Xxx.xxx Inc. ("Xxx.xxx"), with
its principal place of business at 00 Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
and Xxxxxx Micro Inc. ("Ingram") excluding its subsidiaries, with its principal
place of business at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000.
This Agreement will include shipments to Xxx.xxx's locations in the United
States only.
1. Purpose
The purpose of this Agreement is to provide the terms and conditions
for the purchase and resale by Xxx.xxx and the sale by Ingram to
Xxx.xxx of various computer products including both hardware and
software offered by Ingram to its customers ("Product"), excluding
electronic software distribution (ESD) product.
2. Terms of Sale
A. Xxx.xxx will source all of its Product requirements from Ingram
during the term of this Agreement, provided that the Product is
available at the time Xxx.xxx places its order. In the even the
Product is not available or is not offered to Xxx.xxx by Ingram,
Xxx.xxx shall have the right to source such Product from another
source.
B. If authorization for resale is required by the vendor of any
Product, then Ingram will not be obligated to sell such Product to
Xxx.xxx unless Ingram has received such required authorization. If any
vendor prohibits Ingram from selling a specific Product to Xxx.xxx,
then Ingram reserves the right not to sell said Product to Xxx.xxx.
X. Xxxxxx and Xxx.xxx will work towards the implementation of Inside
Line which provides pricing and on-line availability.
3. Ordering
A. Xxx.xxx will compile, update, and provide Ingram with Product order
information. The Product order information will include the (i)
Product type(s), (ii) unit quantity, (iii) Ingram SKU number and/or
vendor part number, (iv) Xxx.xxx purchase price from Ingram, and (v)
correct shipping address. For government orders, Xxx.xxx will compile
the above Product order information as well as (i) end user name and
zip code and (ii) government contract number. Xxx.xxx personnel will
identify, for each Product order, the ship-to destination as either
Xxx.xxx, Xxx.xxx's customer, or to some other specified third party.
Ingram will, subject to Product availability, use its best efforts to
fill and ship all Product orders placed by Xxx.xxx within one (1)
business day of order receipt.
X. Xxxxxx will accept orders over telephone, via facsimile, and via
Ingram approved electronic ordering methods as defined in Xxxxxx'x
Catalog only from those who identify themselves as Xxx.xxx personnel
and provide the Ingram customer number prior to placing the order.
Ingram will have no obligation to confirm the validity of any order
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Page 1
placed or the authority of the person placing an order in this manner.
Xxx.xxx will disclose its Ingram customer number only to its personnel
with a need to know.
X. Xxxxxx will [***] for all of Xxx.xxx's Product orders.
---
4. Volume Commitment
Xxx.xxx agrees that its annual Ingram purchases will meet or exceed
[***] for the term of this Agreement. This annual purchase goal may be
---
reviewed and adjusted quarterly. If Xxx.xxx fails to achieve this run
rate within six (6) months from the effective date of this Agreement,
Ingram reserves the right to review and adjust the pricing as stated
in Section 5.
5. Pricing
A. Xxx.xxx's prices for Product purchases, excluding those listed in
Exhibit A, will be Ingram Cost plus the percentage listed below for
the applicable Product types. Exhibit A provides a list of vendors for
which the pricing is adjusted individually and separately from the
pricing listed below.
Product Type Cost Plus %
Software [***]
Hardware [***]
Accessory [***]
Technical [***]
NOTE: Certain Product purchases, including but not limited to [***],
may not be included in the above pricing.
B. As Xxxxxx'x costs change, prices to Xxx.xxx may be adjusted to
reflect those changes.
X. Xxxxxx represents to Xxx.xxx that it believes that the [***] being
offered to Xxx.xxx pursuant to this Agreement, when considered in the
aggregate, [***]. On a quarterly basis during the term of this
Agreement, Ingram and Xxx.xxx will meet to review current market
prices and terms for the Products and services being offered by Ingram
to Xxx.xxx pursuant to this Agreement. At such meetings, the parties
will discuss in good faith amendments to such prices and terms, if
necessary, in order to render the [***] provided by Ingram to Xxx.xxx,
when considered in the aggregate, [***].
______________________
[***] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been omitted and filed
separately with the Securities and Exchange Commission.
________________________________________________________________________________
Page 2
6. Payment Terms
A. Xxx.xxx shall furnish to Ingram all financial information
reasonably requested by Ingram from time to time for the purpose of
establishing or continuing Xxx.xxx's credit limit, it being understood
that Ingram shall have the right to decline to extend credit to
Xxx.xxx and to require that the applicable purchase price be paid
prior to shipment. Ingram shall have the right from time to time,
without notice, to change or revoke Xxx.xxx's credit limit on the
basis of changes in Xxxxxx'x credit policies or Xxx.xxx's financial
condition and/or payment record.
X. Xxxxxx will invoice Xxx.xxx upon Product shipment, and all invoices
will be due and payable net [***] ([***]) days from the invoice date.
--- ---
Ingram will provide an Early Pay Discount of [***] ([***]) on all
--- ---
invoices for which payment is received by wire transfer within three
(3) days of invoice date. A service charge of the lesser of [***]
---
([***]) per month or the maximum amount allowed by law will be charged
---
on all past due balances to defray Xxxxxx'x costs of carrying such
balance. Credit cards (MasterCard, VISA and Discover Card) will only
be accepted at the time of order or purchase. Payment for all other
orders must be made in accordance with the terms in effect at the time
the order was placed.
C. In the event Xxx.xxx fails to make timely payment of any amount
invoiced hereunder, Ingram shall have the right, in addition to any
and all other rights and remedies available to Ingram, at law or in
equity, to immediately revoke any or all credit extended, to delay or
cancel future deliveries and/or to reduce or cancel any or all
quantity discounts extended to Xxx.xxx. Xxx.xxx shall pay all costs of
collection, including reasonable attorneys' fees.
D. Any obligation of Ingram under these terms and conditions to
deliver Products on credit terms shall terminate without notice if
Xxx.xxx files a voluntary petition under a bankruptcy statute, or
makes an assignment for the benefit of creditors, or if an involuntary
petition under a bankruptcy statute is filed against Xxx.xxx, or if a
receiver or trustee is appointed to take possession of the assets of
Xxx.xxx.
7. Shipping
A. All orders will be shipped F.O.B. origin, Xxxxxx'x carrier of
choice, with all ground freight charges paid by Ingram for shippable
Product orders over [***] ([***]). In the event an authorized Xxx.xxx
--- ---
representative requests a priority shipping method, Xxx.xxx agrees to
use an Ingram authorized carrier and to pay all such freight costs.
B. For fulfillment orders all Product shipped directly to Xxx.xxx's
customers will be packaged with no reference to Ingram. Specifically,
the packaging will not display any Ingram trademark, service xxxx,
logo, or trade name. If the carrier requires a return
______________________
[***] Confidential treatment has been requested for the bracketed
---
portions. The confidential redacted portion has been omitted and filed
separately with the Securities and Exchange Commission.
________________________________________________________________________________
Page 3
address, Ingram may use its warehouse address, without its company
name on such shipment.
C. Xxx.xxx or its customer shall examine all Products promptly upon
receipt thereof. No later than thirty (30) days after receipt, Xxx.xxx
shall notify Ingram of all claimed shortages or damaged Products or if
rejection is intended, shall specify all grounds therefor. Failure to
give such notice shall be deemed an acceptance of the Products as of
the date of shipment.
8. Returns
A. Xxx.xxx agrees to make separate requests for stock balance and
defective returns. All returns must be accompanied by a valid Ingram
Return Material Authorization ("RMA") number. Each return must be
packaged separately for each RMA and contain only Product specified on
that RMA. All RMA's are valid for thirty (30) days from the date of
issuance.
B. Stock Balancing
1. For systems vendor returns, Ingram will allow Xxx.xxx stock
balance returns for up to [***] ([***]) days from the date of
--- ---
invoice, subject to vendor requirements or restrictions. Xxx.xxx
will have Product return privileges on overstocked resalable
Products purchased from Ingram of up to [***] ([***]) of its
--- ---
previous [***] ([***]) days purchases, less any stock balance
--- ---
returns. Credit for returns is calculated at the last purchase
price or the current price, whichever is lower.
2. For non-systems vendor returns, Ingram will allow Xxx.xxx
stock balance returns for up to [***] ([***]) days from the date
--- ---
of invoice, subject to vendor requirements or restrictions.
Xxx.xxx will have Product return privileges on overstocked
Product purchased from Ingram of up to [***], less any stock
---
balance returns. Credit for returns is calculated at the last
purchase price or the current price, whichever is lower.
3. Ingram reserves the right not to accept Products which are (a)
no longer in production or (b) are being produced or published by
a manufacturer which is insolvent or which has declared
bankruptcy or (c) subject to more restrictive stock balancing
policies issued by the Product's manufacturer or publisher.
Xxx.xxx shall pay all costs and bear all risks of loss when
returning Products to Ingram. Configured Products may not be
stock balanced.
______________________
[***] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been omitted and filed
separately with the Securities and Exchange Commission.
________________________________________________________________________________
Page 4
C. Defective Returns
1. Xxx.xxx may return to Ingram for replacement or credit any
Products (other than Configured Products) found to be defective
within ninety (90) days of purchase or any Configured Products
which are found to be defective within thirty (30) days of
purchase. Xxx.xxx must obtain Xxxxxx'x approval prior to
returning the Products. Ingram reserves the right to require
Xxx.xxx to return defective Products directly to the Products'
manufacturer for replacement according to the manufacturer's
defective Products return policy.
2. Ingram shall not be obligated to repair or replace Products
rendered defective, in whole or in part, by causes external to
the Products, such as, but not limited to catastrophe, power
failure or transients, overvoltage on interface, environment
extremes, improper use, maintenance and application of the
Products or use of unauthorized parts.
9. Marketing Funds
X. Xxxxxx and Xxx.xxx agree to the terms of the Marketing Agreement
incorporated herein as Exhibit B.
10. Confidentiality
A. For a period of two (2) years from the date of disclosure to the
other party, both parties agree that they will not disclose to third
parties the Confidential Information, as hereafter defined, of the
other without the other party's prior written permission. Confidential
Information shall mean all proprietary information and/or trade
secrets (including but not limited to Xxx.xxx customer information)
regardless of the form in which it is transmitted, which (a) if
disclosed in tangible form bears a legend indicating that it is
confidential or proprietary; or (b) if disclosed orally or visually
only, is identified as confidential or proprietary at the time of
disclosure and is documented as such in writing and a non-confidential
written summary of the disclosure is provided to the other party
within thirty (30) days of the date of disclosure. Confidential
Information will only be used by the parties in furtherance of this
business relationship. Ingram agrees not to use Xxx.xxx's Confidential
Information to solicit or develop business directly with Xxx.xxx's
customers.
B. The foregoing obligations not to disclose Confidential Information
shall not apply with respect to a party's Confidential Information
that: (i) was in the possession of or known by the other party without
an obligation of confidentiality prior to receipt from the disclosing
party; (ii) is or becomes general public knowledge through no fault or
acts of the other party; (iii) is or becomes lawfully available to the
other party from a third party which, to the other party's knowledge,
is not subject to an obligation of confidentiality; (iv) in
independently developed by the other party without use of any
Confidential Information; or (v) the other party is advised by counsel
is required to be disclosed by any governmental agency or pursuant to
any law, code or regulation, provided the disclosing party notifies
the other party in writing as soon as it becomes aware of the
________________________________________________________________________________
Page 5
disclosure requirement so as to afford the other party every
opportunity to take whatever steps it deems necessary to protect the
confidentiality of the information. In the event that Xxx.xxx
determines that it must file this Agreement as an exhibit to any
registration statement it files with the U.S. Securities and Exchange
Commission (the "SEC"), confidential treatment for the filing will
permit Ingram to review and approve the portions of this Agreement for
which confidential treatment is requested at least seventy-two (72)
hours prior to the filing, and will permit Ingram to participate in
any discussions it or its representatives may have with the SEC with
respect to such request.
11. Taxes
Xxx.xxx shall bear applicable federal, state, municipal, and other
government taxes (such as sales, use, etc.). Unless otherwise
specified, list prices do not include such expenses, and they will
appear, if applicable, as separate, additional items on the invoice.
Exemption certificates, valid in the place of delivery, must be
presented to Ingram prior to shipment if they are to be honored.
12. Warranty
Product warranties, if any, are provided by the manufacturer/publisher
of the Products. Ingram makes no warranties whatsoever. Xxxxxx'x sole
obligation (and Xxx.xxx's sole remedy) in the event of breach of any
warranty shall be the repair or replacement of defective Products. IN
NO EVENT SHALL XXXXXX BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR
DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH
OF WARRANTY. INGRAM DOES NOT WARRANT THE MERCHANTABILITY OF THE
PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. INGRAM MAKES NO
WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THOSE SPECIFICALLY SET FORTH
HEREIN.
13. Patent and Trademark Indemnity
INGRAM SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS
XXX.XXX FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY
XXX.XXX ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE
VIOLATION OF COPYRIGHTS BY PRODUCTS. NOTWITHSTANDING ANY OTHER TERMS
OR CONDITIONS TO THE CONTRARY, XXXXXX'X LIABILITY UNDER THIS SECTION
SHALL NOT EXCEED THE PURCHASE PRICE OF THE INFRINGING PRODUCT.
14. Limitation of Liability
INGRAM SHALL NOT BE LIABLE TO XXX.XXX, XXX.XXX'S CUSTOMERS, OR OTHER
PARTY FOR ANY LOSS, DAMAGE, OR INJURY WHICH RESULTS FROM THE USE OR
APPLICATION BY XXX.XXX, XXX.XXX'S CUSTOMER, OR ANY OTHER PARTY OF
PRODUCTS DELIVERED TO XXX.XXX, UNLESS THE LOSS OR DAMAGE RESULTS
DIRECTLY FROM THE INTENTIONALLY
________________________________________________________________________________
Page 6
TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF INGRAM. IN NO EVENT SHALL
XXXXXX BE LIABLE TO XXX.XXX OR ANY THIRD PARTY FOR LOSS, DAMAGE, OR
INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH
THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE
INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS
AND CONDITIONS BY INGRAM, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN
EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS ACTUALLY DELIVERED TO
XXX.XXX HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF
ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN
CONNECTION WITH EITHER PARTY'S BREACH OF, OR FAILURE TO PERFORM IN
ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING,
INSTALLATION, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS PROVIDED
HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY
OF SUCH DAMAGES. BOTH PARTIES HEREBY EXPRESSLY WAIVE ANY AND ALL
CLAIMS FOR SUCH DAMAGES. IN NO EVENT SHALL INGRAM HAVE ANY LIABILITY
FOR ANY PRODUCTS USED FOR AVIATION, MEDICAL, LIFESAVING, LIFE
SUSTAINING OR NUCLEAR APPLICATIONS.
15. Compliance with U.S. Export Laws
The Products are sold to Xxx.xxx for resale in the United States only.
In the event Xxx.xxx delivers the Products to a customer who may use
the Products outside the United States, Xxx.xxx acknowledges and shall
advise its customers that the Products are controlled for export by
the U.S. Department of Commerce and that the Products may require
authorization prior to export from the United States or re-export.
Xxx.xxx agrees that it will not export, re-export, or otherwise
distribute Products, or direct products thereof, in violation of any
export control laws or regulations of the United States. Xxx.xxx
warrants that it will not export or re-export any Products with
knowledge that will be used in the design, development, production, or
use of chemical, biological, nuclear, or ballistic weapons, or in a
facility engaged in such activities, unless Xxx.xxx has obtained prior
approval from the Department of Commerce. Xxx.xxx further warrants
that it will not export or re-export, directly or indirectly, any
Products to embargoed countries, including, but not limited to, Cuba,
Libya, North Korea, Iran, Iraq, Sudan and Syria. Diversion of Products
contrary to U.S. law is prohibited.
16. Manufacturer/Publisher Restrictions
All Products delivered by Xxx.xxx hereunder may have additional
restrictions on their use required by manufacturer/publisher. Xxx.xxx
is solely responsible for ensuring its adherence to any and all such
restrictions or requirements.
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Page 7
17. Severability
A judicial determination that any provision hereunder is invalid in
whole or in part shall not affect the enforceability of those
provisions not found to be invalid.
18. Reconciliation
Both parties mutually agree to reconcile Xxx.xxx's account every
ninety (90) days from the effective date of this Agreement. In order
to allow appropriate credits to be applied, Xxx.xxx agrees to provide
appropriate documentation as listed in Exhibit C to Ingram and wait
thirty (30) days from the date of the disputed claim before debiting
Ingram for any reason.
19. Notices
All notices and other communications relating to this Agreement or its
terms will be in writing and mailed via first class United States
Postal Service, certified or registered with return receipt requested
or via facsimile. All notices so mailed will be deemed received two
(2) days after postmark date and facsimile will be deemed received
upon notification of successful transmission.
20. Choice of Law/Choice of Forum
This Agreement shall be deemed to have been executed and delivered in
Santa Ana, California, and shall be construed, interpreted and
enforced under and in accordance with the internal laws of the State
of California, excluding its conflicts or choice of law rule or
principles which might refer to the law of another jurisdiction. The
parties agree to exercise any right or remedy in connection with this
Agreement exclusively in, and hereby submit to the jurisdiction of the
State of California, Courts of Orange County, California, or the
United Xxxxxx Xxxxxxxx Xxxxx xx Xxxxx Xxx, Xxxxxxxxxx. The state and
federal courts situated in Orange County, California will have non-
exclusive jurisdiction and venue over any dispute or controversy,
which arises out of this Agreement.
21. Binding Effect/Assignment
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, and their respective representatives, successors
and permitted assigns. Neither party may assign its rights and/or
duties under this Agreement without prior written consent of the other
party given at the other party's sole option; except that Ingram may
assign this Agreement to a subsidiary or affiliate upon notice to
Xxx.xxx. Any such attempted assignment shall be void.
22. Headings
This Agreement may be executed in any number of original counterparts,
each of which when executed and delivered will be deemed to be an
original and all of which taken together will constitute but one and
the same instrument. Headings in this Agreement are
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Page 8
included for convenience of reference only and will not constitute a
part of this Agreement for any other purpose.
23. Attorneys Fees
In the event there is any dispute concerning the terms of this
Agreement or the performance of any party hereto pursuant to the terms
of this Agreement, and any party hereto retains counsel for the
purpose of enforcing any of the provisions of this Agreement or
asserting the terms of this Agreement in defense of any suit filed
against said party, each party shall be solely responsible for its own
costs and attorney's fees incurred in connection with the dispute
irrespective of whether or not a lawsuit is actually commenced or
prosecuted to conclusion.
24. Term and Termination
This Agreement will commence on the date of the last signature set
forth below an will continue for one (1) year. Either party may
terminate this Agreement without cause by giving one hundred twenty
(120) days advance written notice to the other party. The termination
provisions in Exhibit B shall apply only to Exhibit B and Clause 9 of
this Agreement. Ingram may terminate this Agreement immediately for
cause upon written notice, which notice will include a ten (10) day
opportunity to cure.
25. Entire Agreement
This Agreement (including any Exhibits and Addenda) constitutes the
entire Agreement between the parties pertaining to the subject matter
hereof, and will cancel, terminate, and supersede any and all previous
agreements, proposals, representations, or statements, whether oral or
written. The terms of this Agreement will supersede the terms of any
invoice or purchase order issued by either party. Any modifications of
this Agreement must be in writing and signed by an authorized
representative of each party.
This Agreement will become effective as of the last date of signature by the
authorized parties below.
"Xxx.xxx" "Ingram"
By:_____________________________ By:_____________________________
(Officer of the Company) (Officer of the Company)
Name:___________________________ Name:___________________________
(Please print or type) (Please print or type)
Title:__________________________ Title:__________________________
Date:___________________________ Date:___________________________
_______________________________________________________________________________
Page 9
August 11, 1999
Xxxxxx Xxxxx
Senior Vice President of Sales
Xxxxxx Micro, Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Re: Amendment to Resale Agreement
Dear Xxxxxx:
This will amend the Resale Agreement between Xxxxxx Micro, Inc. and XXX.XXX Inc.
dated March 10, 1999 (the "Resale Agreement"). When signed on behalf of Xxxxxx
Micro Inc., Section 24 of the Resale Agreement will be replaced with the
following:
24. Term and Termination
This Agreement will commence on the date of the last signature set
forth below and will continue for one (1) year, Either party may terminate
this Agreement without cause by giving one hundred twenty (120) days
advance written notice to the other party. The termination provisions in
Exhibit B shall apply only to Exhibit B and Clause 9 of this Agreement.
Ingram may terminate this Agreement immediately for cause upon written
notice, which notice will include a ten (10) day opportunity to cure.
Unless and until either party provides at least 120 days prior written
notice of its intention not to extend the term of this Agreement, this
Agreement shall automatically renew for additional one (1) year term.
Except as amended by this letter agreement, the Resale Agreement will remain in
full force and effect between our companies.
Sincerely,
Xxxx Xxxxxxx
Chief Executive Officer
Accepted and Agreed this
_______day of_____, 1999.
Xxxxxx Micro, Inc.
By: ________________________
Xxxxxx Xxxxx
Senior V.P. of Sales
______________________________________________________________________________
Page 1
EXHIBIT B
Marketing Agreement
Xxxxxx'x Marketing Department understands the needs and requirements that
Xxx.xxx has in order to meet its specific business objectives and future goals.
Xxxxxx'x Product Marketing and Reseller Marketing team is committed to work with
key contacts at Xxx.xxx to facilitate an ease of doing business, increase
communication between our companies and collaborate in meeting Xxx.xxx's
established marketing goals.
To achieve Xxx.xxx's vendor-funding goals, Ingram will commit to best efforts in
working jointly with Xxx.xxx to secure [***] based on a level equal to [***] of
--- ---
Xxx.xxx's [***] with a maximum amount of [***] period. Notwithstanding any
---
other provision to the contrary herein, this marketing agreement is contingent
upon Xxx.xxx achieving and maintaining [***].
---
To effectively facilitate this agreement, Ingram will assemble and assign a team
of associates to manage all aspects of the Ingram and Xxx.xxx marketing
relationship. Ingram [***] sales team, a sales manager, a marketing manager,
---
and pass through, administration and analysis support. These sales associates,
and the marketing management team, will work closely with the Xxx.xxx sales team
to initiate and drive marketing programs. Ingram will develop a [***] for the
---
assigned sales associates. Ingram will assemble this team within [***] of
---
effective date of this marketing agreement. The [***] to the Xxx.xxx account.
---
The marketing team will be [***] that meet the funding requirements of Xxx.xxx.
---
[***] will be mutually defined between Xxx.xxx and Xxxxxx within [***] of the
--- ---
effective date of this marketing agreement. Progress to assigned goal will be
evaluated monthly by both parties. If [***] are underachieved, Xxx.xxx has a
---
right to terminate the marketing agreement with [***] written notice to Xxxxxx
---
if Xxxxxx fails to cure the underachievement within [***] of the notice of
---
termination.
The accomplishment of [***] will be measured by the [***] to Xxx.xxx either
--- ---
through Xxxxxx [***] secured by either Xxxxxx or Xxx.xxx. All [***] currently
--- ---
secured and [***] will count towards the calculation of goal achievement.
---
Reporting on all pass through transactions, through Xxxxxx, will be available
and provided on a weekly basis to a designated contact at Xxx.xxx.
As an integral component of the marketing programs, the assigned associates will
spend a mutually agreed upon length of time working at Xxx.xxx's corporate
location in order to acquire a full comprehension of Xxx.xxx business model and
available marketing vehicles. Xxx.xxx will provide for adequate workspace for
Xxxxxx associates to facilitate vendor meetings and participate in training and
informational updates on site at the Xxx.xxx corporate location.
___________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
_______________________________________________________________________________
Page 1
Facilitation of necessary training and the development of promotional collateral
and sales tools will be a joint responsibility of Xxxxxx and Xxx.xxx. Each
party will bear its own expenses in the preparation of these materials.
Responsibilities will include managing all marketing communications and
activities related to the successful promotion and solicitation of Xxxxxx Micro
product marketing and purchasing associates and vendor partners in participation
of Xxx.xxx marketing vehicles. Specifically the marketing team will be
chartered with the following responsibilities:
. Act as primary interface for overall marketing management
. Act as point persons for product marketing managers, buyers, and Xxxxxx Micro
vendor partners with respect to Xxx.xxx marketing programs
. Coordinate product marketing and vendor training and presentations
. Schedule and drive key meetings
. Manage development, follow-up, and reporting of Xxx.xxx activity
solicitations
. Act as point persons for Xxx.xxx pass through approvals and credits
. Understand Xxx.xxx's business model, its position in the marketplace and end
user market segments
. Plan, develop, and coordinate necessary and approved marketing activities and
opportunities as related to Xxxxxx associates and vendor partners
. Research, inquire, and develop channel of incremental funding from vendors in
support of Xxx.xxx marketing programs.
As part if this marketing program, and for the duration of this marketing
agreement, Xxxxxx will charge a [***] secured on behalf of Xxx.xxx. This
---
[***] will apply to all [***] secured by either Xxxxxx Micro or Xxx.xxx
--- ---
including [***], upgrades, renewals and vendor advertising contracts
---
changes. The [***] does not apply to contracts in place prior to this
---
Agreement, except for the following vendors:
Vendor Contract Start Date
------ -------------------
1. [***] [***]
--- ---
2. [***] [***]
--- ---
3. [***] [***]
--- ---
4. [***] [***]
--- ---
5. [***] [***]
--- ---
6. [***] [***]
--- ---
7. [***] [***]
--- ---
8. [***] [***]
--- ---
The [***] will be utilized by Xxxxxx to offset the costs associated with
---
building the infrastructure and maintaining the resources required in providing
marketing and sales services to Xxx.xxx.
_____________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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Page 2
Xxxxxx will collect the [***] via [***] upon receipt of an invoice and proof of
--- ---
performance provided by Xxx.xxx and issuing a credit to xxx.xxx [***]. Xxx.xxx
---
will provide Xxxxxx with a monthly report detailing [***]. Xxxxxx will [***].
--- ---
___________________________
[***] Confidential treatment has been requested for the bracketed portions.
---
The confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
________________________________________________________________________________
Page 3
