EXHIBIT 10.14
DISTRIBUTOR AGREEMENT
This Agreement is entered into between Javelin Systems, Inc. (hereinafter
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referred to as "Manufacturer"), and ScanSource, Inc., 0 Xxxxx Xxxxx, Xxxxx X,
Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000 (hereinafter referred to as "Distributor").
This Agreement is effective upon the date of the last signature, the "Effective
Date".
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Distributor desires to purchase certain products from Manufacturer
from time to time; and
WHEREAS, Manufacturer desires to sell certain products to Distributor in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, Manufacturer desires to appoint Distributor as its non-exclusive
distributor to market products within the territory defined in Appendix B, the
"Territory";
NOW THEREFORE, in consideration of the mutual premises herein contained
and other good and valuable consideration, Distributor and Manufacturer hereby
agree as follows:
ARTICLE I.
TERM OF AGREEMENT
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1.1 Term of Agreement. During the term of the Agreement, Manufacturer will
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provide to Distributor the Products in accordance with the terms and
conditions set forth in this Agreement. The term of this Agreement shall
commence on the Effective Date and, unless terminated by either party as
set forth in this Agreement, shall remain in full force.
1.2 Definitions. The following definitions shall apply to this Agreement.
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(a) "APPLICABLE SPECIFICATION" shall mean the functional performance,
operational and compatibility characteristics of a Product agreed upon
in writing by the parties or, in the absence of an agreement, as
described in applicable Documentation.
(b) "DOCUMENTATION" shall mean user manuals, training materials, product
descriptions
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and specifications, technical manuals, license agreements, supporting
materials and other printed information relating to the Products,
whether distributed in print, electronic, or video format, in effect
as of the date of the applicable Purchase Order.
(c) "PRODUCTS" shall mean, individually or collectively as appropriate,
licensed software, Documentation, developed products and hardware,
supplies, accessories, and other commodities related to any of the
foregoing, provided or to be provided by Manufacturer pursuant to
this Agreement.
(d) "STANDARD PRODUCTS" shall mean Products requiring no changes,
alterations, or additions, from those Products customarily offered
by Manufacturer.
(e) "CUSTOMIZED PRODUCTS" shall mean any Products Manufacturer must
purchase or develop requiring Manufacturer to perform changes,
alterations, assembly, additions or special packaging prior to
shipping to Distributor.
(f) "CUSTOMERS" of Distributor shall include dealers, resellers, value
added resellers and other similar customers.
(g) "END USERS" shall mean final retail purchasers or licensees who have
acquired Products for their own use and not for resale, remarketing
or redistribution.
(h) "SERVICES" means any warranty, maintenance, advertising, marketing or
technical support and any other services performed or to be performed
by Manufacturer.
1.3 Appointment as Distributor. Manufacturer hereby grants to Distributor the
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non-exclusive right to distribute products during the term of this
Agreement within North America. Manufacturer reserves the right to appoint
other authorized distributors both within and outside of the Territory.
Distributor will use its best efforts to promote sales of the Products,
see Rider 2A. Distributor agrees to conduct business in a manner that
reflects favorably on the Products and Manufacturer.
RIDER 2A
1.4 TERRITORY. Distributor shall distribute Products only within the Territory
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and shall not solicit orders from any prospective purchaser with its principal
place of business located outside the Territory. If Distributor receives any
order from a prospective purchaser whose principal place of business is located
outside of the Territory, Distributor shall not accept such order and shall
immediately refer such order to Manufacturer. Distributor may not deliver or
tender (or cause to be delivered or tendered) any Product outside of the
Territory. Distributor shall not sell, directly or indirectly, Products outside
the Territory or to any person or entity in the Territory knowing or having
reason to believe that such person or entity will or intends to sell or resell
Products outside the Territory. Advertising or promotion of Products by
Distributor to any customer, retailer or dealer
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outside the Territory or distribution of Products by Distributor to any dealer
who resells or otherwise redistributes such Products for use outside the
Territory will constitute a material breach of this Agreement. If Products
originally shipped to Distributor are located or identified by manufacturer as
available for sale or distribution by any unauthorized source, whether inside or
outside the Territory, such location or identification by Manufacturer shall be
presumptive evidence of a material breach by Distributor of this Section.
1.5 GENERAL OBLIGATIONS. Distributor shall:
(a) Not obligate or purport to obligate Manufacturer by issuing or making
any affirmations, representations, warranties or guaranties with respect to the
Products to any third party, other than the warranties described in Article IV
hereof; and
(b) Use Manufacturer's trade names, trademarks and service marks on a non-
exclusive basis in the Territory only for the duration of this Agreement and
solely for displaying or advertising purposes in connection with selling and
distributing the Products in accordance with this Agreement.
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ARTICLE II.
PURCHASE ORDERS
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2.1 Preparation of Purchase Orders. From time to time, or at Distributor's
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request, Manufacturer shall inform Distributor of Products available from
Manufacturer including, but not limited to, replacement Products, new
releases, enhancements or versions of existing Products.
2.2 Issuance and Acceptance of Purchase Orders. Distributor may purchase and
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Manufacturer shall sell to Distributor, Products as described below:
(a) Distributor may issue to Manufacturer one or more purchase orders
identifying the Products Distributor desires to purchase from
Manufacturer. Each Purchase Order may include other terms and
conditions which are consistent with the terms and conditions of this
Agreement or which are necessary to place a Purchase Order, such as
billing and shipping information, required delivery dates, delivery
location, and the purchase price or charges for Products, as per
Manufacturer's then existing price lists for the said products.
Purchase orders will be placed by Distributor by telephone or FAX and
followed by a written purchase order.
(b) Manufacturer shall indicate acceptance of Purchase Orders and/or
alterations to Purchase Orders by providing to Distributor a written
acceptance of such Purchase Order or alteration, or by commencing
performance pursuant to such Purchase Order or alteration.
Manufacturer shall accept a Purchase Order or alteration if (i) the
Purchase Order or alteration does not establish new or conflicting
terms and conditions from those set forth in this Agreement or as set
forth on the Price List referenced as Exhibit A attached hereto, or
(ii) the terms and conditions set forth in the Purchase Order or
alteration have been separately agreed upon in writing by the parties.
Purchase Orders and altered Purchase Orders accepted in accordance
with this subsection are referred to herein as "Purchase Orders". A
Purchase Order shall be deemed accepted by Manufacturer unless
Manufacturer notifies Distributor within three (3) days after
receiving the Purchase Order and giving specific reasons therefor.
(c) After the expiration of this Agreement, Manufacturer shall accept
Purchase Orders from Distributor for additional Products which
Distributor is then contractually obligated to furnish to its
customers and does not have in its inventory upon the termination
of this Agreement; provided Distributor notifies Manufacturer of any
and all such transactions in writing within thirty (30) days of the
termination date of this Agreement.
2.3 Purchase Order Alteration. Prior to shipment of Standard Products,
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Manufacturer shall accept an alteration to a Purchase Order in order to:
(i) change a location for delivery,
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(ii) modify the quantity or type of Products to be delivered or (iii)
correct typographical or clerical errors. Distributor may not alter any
Purchase Order for Customized Products after such time as the Manufacturer
has commenced the manufacturing, development or purchase of the Products.
2.4 Cancellation of Purchase Orders. Except as otherwise agreed upon by the
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parties, Distributor may cancel a Purchase Order for Standard Products
without charge or penalty with 7 day notice prior to shipment of the
Products specified in such Purchase Order. Distributor may not cancel any
Purchase Order for Customized or Special Order Products after such time as
the Manufacturer has commenced the manufacturing, development or purchase
of the Products.
2.5 Evaluation Purchase Orders. Distributor may issue Purchase Orders in order
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to evaluate newly developed Products by Manufacturer at no charge. After
evaluation, Distributor shall have the option to purchase the Products or
to return such products to Manufacturer at Distributor's expense within 30
days.
2.6 Product Shortages. If for any reason Manufacturer's production is not on
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schedule, Manufacturer agrees to allocate Product to Distributor's orders
based upon a percentage equal to the same percentage as Manufacturer's like
customers purchasing like volume.
ARTICLE III.
DELIVERY AND ACCEPTANCE OF PRODUCTS
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3.1 Acceptance of Products. Distributor shall inspect each shipment, and within
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5 days after receipt of shipment accept each Product on the date (the
"Acceptance Date") when such Products and all necessary documentation are
delivered to Distributor in accordance with the Purchase Order and the
Product specifications.
3.2 Defective Products. In the event any Products are received in a defective
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condition or not in accordance with Manufacturer's published specifications
or the documentation relating to such Products, Distributor may return the
Products for full credit. Products shall be deemed defective if the
Product, or any portion of the Product, fails to operate properly when the
system is booted or used as applicable. Distributor shall have the right to
return any such Products that are returned to Distributor from its
customers or end users within thirty (30) days of the Products' initial
delivery date to the end user. In such event, Manufacturer shall issue a
Return Authorization to Distributor for all such defective
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Products; and Distributor shall return defective products to Manufacturer
for full credit.
3.3 Transportation of Products. Manufacturer shall deliver the Products to
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Distributor at the location shown and on the delivery date set forth in the
applicable Purchase Order. Charges for transportation of the Products,
including freight, insurance, shipping and taxes, shall be paid by the
Distributor.
3.4 Title and Risk of Loss. Title to Products shall pass to Distributor at the
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time that the Products are delivered to the carrier. All risk of loss or
damage to the Products shall be borne by Manufacturer until delivery of
such Products to the carrier.
3.5 In Warranty Products. Manufacturer shall provide warranty service direct to
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resellers based upon Manufacturer's then current standard warranty policy.
The reseller must provide proof - of - purchase to validate the warranty
and obtain an RMA from the manufacturer. Manufacturer will bear all
processing costs to return product back to the reseller.
3.6 Resale of Products by Distributor. During the term of this Agreement,
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Distributor may market, promote, distribute and resell Products to
customers of Distributor, in accordance with the following terms and
conditions:
(a) Manufacturer shall extend to Distributor and each customer of
Distributor Manufacturer's then current warranties with respect to
Products purchased and resold hereunder.
(b) Manufacturer shall extend to Distributor and each customer of
Distributor the same warranties and indemnifications, with respect to
Products purchased and resold hereunder as Manufacturer extends to its
end-user customers.
(c) The term of warranties extended by Manufacturer to an end user shall
commence upon delivery of the Product to the end user.
(d) Manufacturer shall make available at no charge to Distributor
reasonable training, technical support and other services related to
the Products that are currently offered or that may be offered by
Manufacturer. Manufacturer also agrees to provide Distributor with
telephone support at no charge during Manufacturer's normal business
hours.
(e) Distributor may refer to itself as Manufacturer's authorized
distributor of the Products and Distributor may obtain written
permission from Manufacturer to use trademarks and trade names of
Manufacturer. Distributor is not authorized to use Manufacturer's name
or any trademarks or trade name of Manufacturer other than in
connection with the sale of Products in accordance with this
Agreement, and all such permitted uses shall be subject to a prior
written approval of Manufacturer. Distributor recognizes
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Manufacturer may have rights and/or ownership of certain trademarks,
trade names and patents associated with the Products. Distributor
will act consistently with such rights, and Distributor shall comply
with any reasonable, written guidelines when provided by Manufacturer
relating to such trademark or trade name usage. Distributor is not
authorized and shall not be required to instigate legal action on
behalf of Manufacturer against third parties for infringement.
Distributor will notify Manufacturer of any infringement if which
Distributor has actual knowledge. Distributor shall discontinue use
of Manufacturer's trademarks or trade names upon termination of this
Agreement.
3.7 Inventory Adjustment. Manufacturer agrees to accept, on a quarterly basis
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commencing with the end of the first calendar quarter following the
effective date of this agreement, a shipment of current nondiscontinued
Products in factory sealed cartons returned by Distributor for full credit,
provided that distributor complies with each of the following conditions:
(a) Distributor obtains a Return Authorization from Manufacturer prior to
any such return;
(b) Distributor pays all return freight charges;
(c) Distributor places an offsetting order of equal or greater value.
(d) Maximum return on any given quarter will be limited to 15% of the
prior quarter's net sales.
For purposes of determining whether Products are eligible for rotation pursuant
to this section, Products shall be deemed to be "Current Nondiscontinued
Products" if they are listed on Manufacturer's current price sheet, or if
Manufacturer announces the discontinuance of such Products within the ninety
(90) days preceding the claim for inventory adjustment. Customized Products
shall not be eligible for repurchase pursuant to this section.
In addition, Distributor shall have the right to return for full credit, without
limitation as to the dollar amount, all Products that become obsolete or are
removed from Manufacturer's current price list; provided Distributor returns
such Products within thirty (30) days after Distributor receives notice that
such Products are obsolete.
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ARTICLE IV.
WARRANTIES, INDEMNITIES AND LIABILITIES
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4.1 Warranty. Manufacturer warrants that:
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(a) Manufacturer is the exclusive, legal owner of products defined on the
Price List referenced as Appendix A and has full power and authority
to license said products to Distributor and convey all other rights
and licenses granted to Distributor under this Agreement;
(b) Manufacturer knows of no instance where Products infringe upon the
proprietary rights of any other person;
(c) Manufacturer's warranty with respect to the Products is set forth in
Manufacturer's standard warranty card. Manufacturer does not make any
express or implied representation nor warranty as to the
merchantability or fitness for particular purpose of its Products to
Distributor applications.
4.3 Limitation of Liability. Neither party shall be liable to the other
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pursuant to this Agreement for any amounts representing loss of profits,
loss of business or indirect, incidental, special, consequential, or
punitive damages of the other party.
4.4 Unauthorized Representations. Distributor shall have no authority to alter
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or extend any of the warranties of Manufacturer expressly contained or
referred to in this Agreement without prior written approval of
Manufacturer.
4.5 Disclaimer of Warranties. Manufacturer has made expressed warranties in
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this Agreement and in documentation, promotional and advertising materials.
EXCEPT AS SET FORTH THEREIN, MANUFACTURER DISCLAIMS ALL WARRANTIES WITH
REGARD TO THE PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, see Rider 7B.
RIDER 7A
4.6 INDEMNIFICATION. Distributor and Manufacturer shall indemnify, protect and
save its affiliates, successors and assigns and all officers, directors,
employees and agents thereof (collectively, the "Indemnitees") harmless from and
against all claims, damages, losses, costs, expenses, demands, suits or actions
(including attorneys' fees incurred in connection therewith)
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which may be asserted against the Distributor or Manufacturer for any kind of
damages, including but without limitation, damage or injury to property or
persons which may be sustained by any third party or any of the Indemnitees
occurring out of or incident to the sale by Distributor or Manufacturer of any
Products.
RIDER 7B
4.7 MANUFACTURER'S LIABILITY ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLYING
OF THE PRODUCTS OR THEIR USE OR DISPOSITION, WHETHER BASED UPON WARRANTY,
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE PAID BY
DISTRIBUTOR FOR THE PRODUCTS.
IN NO EVENT SHALL MANUFACTURER BE LIABLE TO DISTRIBUTOR OR ANY OTHER PERSON
OR ENTITY FOR PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF SE DAMAGES) ARISING OUT OF THE
MANUFACTURE, SALE OR SUPPLYING OF THE PRODUCTS, EVEN IF MANUFACTURER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
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ARTICLE V.
PAYMENT TO MANUFACTURER
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5.1 Charges, Prices and Fees for Products. Charges, prices, quantities and
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discounts, if any, for Products shall be determined as set forth in
Manufacturer's Price List referenced in Exhibit A, or as otherwise agreed
upon by the parties, and may be confirmed at the time of order.
Manufacturer shall have the right to increase prices from time to time,
upon written notice to Distributor not less than thirty (30) days prior to
the effective date of such increase. All orders placed prior to the
effective date of the increase, for shipment within thirty (30) days after
the effective date, shall be at the old price.
5.2 Payment. Except as otherwise set forth herein, any undisputed sum due to
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Manufacturer pursuant to this Agreement shall be payable within 30 days
after the invoice date. Manufacturer shall invoice Distributor no earlier
than the applicable shipping date for the Products covered by such invoice.
5.3 Price Protection. Manufacturer shall grant to Distributor a retroactive
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price credit for the full amount of any Manufacturer price decrease on all
Products on order, in transit and in its inventory on the effective date of
such price decrease. Distributor shall supply to Manufacturer, within ten
(10) days of a price decrease, an inventory list specifying the number of
units within the current inventory which qualifies for the price decrease.
Manufacturer may elect to audit such claims at their expense. All orders
scheduled for shipment or in transit to Distributor at the time of notice
of the price decrease shall be adjusted to the decreased price.
5.4 Monthly Shipment Reports. Manufacturer shall, if requested, render monthly
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reports to Distributor setting forth the separate Products, dollars
invoiced for each product, and total dollars invoiced to Distributor for
the month, and such other information as Distributor may reasonably
request. POS reports will also be sent monthly.
5.5 Inventory. Distributor will submit to Manufacturer a quarterly, non-
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binding forecast for the upcoming quarter, fifteen (15) days after
completion of previous quarter. The forecasted quarters will coincide with
the calendar year.
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ARTICLE VI.
TERMINATION
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6.1 Termination Without Cause. Either party may terminate this agreement, with
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or without cause, upon giving the other party thirty (30) days prior
written notice.
6.2 Termination for Cause. In the event that either party materially or
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repeatedly defaults in their performance of any of its duties or
obligations set forth in this Agreement, and such default is not
substantially cured within thirty (30) days after the written notice,
specified below, is given to the defaulting party specifying the default,
then the party not in default may, by giving written notice thereof to the
defaulting party, terminate this Agreement or the applicable Purchase Order
relating to such default as of the date specified in such notice of
termination.
6.3 Termination for Insolvency or Bankruptcy. This Agreement and any Purchase
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Order shall be automatically terminated without act of or notice from any
party in the event of (i) the liquidation or insolvency of either party,
(ii) the appointment of a receiver or similar officer for any party, (iii)
an assignment by any party for the benefit of all or substantially all of
its creditors, (iv) entry by any party into an agreement for the
composition, extension, or readjustment of all or substantially all of its
obligations, or (v) the filing of a meritorious petition in bankruptcy by
or against any party under any bankruptcy or debtors' law for its relief of
reorganization.
6.4 Termination for Non-Payment. Manufacturer may terminate a Purchase Order,
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or any portion thereof, terminate this Agreement, or suspend delivery of
any Products if Distributor fails to pay any amounts due and such failure
continues for a period of thirty (30) days after the day payment is due.
6.5 Rights Upon Termination. Termination of any Purchase Order or this
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Agreement shall not affect Manufacturer's right to be paid for invoices
for Products already shipped. The termination of this Agreement shall not
affect any of Manufacturer's warranties, indemnifications or obligations
relating to returns, credits or any other matters set forth in this
Agreement that specifically state that they are to survive termination.
Upon termination of this Agreement, Distributor shall discontinue holding
itself out as a distributor of Manufacturer's Products. The expiration of
the term of this Agreement shall not affect the obligations of either party
to the other party pursuant to any Purchase Order previously forwarded to
Manufacturer, provided that such Purchase Order is reasonable and
consistent in quantity and time of requested delivery.
6.6 Inventory Adjustments. If this Agreement is terminated by Manufacturer, the
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Manufacturer, with or without cause, will repurchase Distributor's
inventory under the
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following conditions:
(a) There price to be paid for the repurchase of said inventory shall be
at the Distributor's net cost at time of purchase.
(b) All Products shall be in good merchantable condition.
(c) All Products shall be shipped to Manufacturer's designated facility,
freight prepaid.
If this Agreement is terminated by Distributor, with or without cause,
Manufacturer shall, at its option, thirty (30) days of such termination
repurchase all unsold Products that are in excess of Distributor's contractual
obligations to Manufacturer subject to the following:
(a) The price to be paid for the repurchase of said inventory shall be at
the Distributor's net cost at the time of purchase, less any price
protection allowance.
(b) All Products shall be in good and merchantable condition.
(c) All Products shall be shipped to Manufacturer's designated facility,
freight prepaid.
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ARTICLE VII.
MISCELLANEOUS
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7.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be
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binding on the parties and their respective successors and permitted
assigns, but neither party shall have the power to assign this Agreement
without the prior written consent of the other party.
7.2 Counterparts. This Agreement may be executed in several counterparts, all
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of which taken together shall constitute one single agreement between the
parties.
7.3 Heading. The Article and Section heading used in this Agreement are for
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reference and convenience only and shall not enter into the interpretation
hereof.
7.4 Relationship of Parties. Distributor is performing pursuant to this
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Agreement only as an independent contractor. Distributor has the sole
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed its obligations set forth in this Agreement, except
as otherwise agreed upon by the parties. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between Distributor and Manufacturer. Neither party shall act or
represent itself, directly or by implication, as an agent of the other
party or its affiliates or in any manner assume or create any obligation on
behalf of, or in the name of, the other party or its affiliates.
7.5 Confidentiality. Each party acknowledges that in the course of performance
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of its obligations pursuant to this Agreement, it may obtain certain
confidential and/or proprietary information of the other party. Each party
hereby agrees that all such information communicated to it by the other
party, its affiliates, or customers, whether before or after the Effective
Date, shall be and was received in strict confidence, shall be used only
for purposes of this Agreement, and shall not be disclosed without the
prior written consent of the other party, except as may be necessary by
reason of legal or regulatory requirements beyond either party's reasonable
control. The provisions of this Section shall survive the term or
termination of this Agreement for any reason.
7.6 Media Releases. Except for any announcement intended solely for internal
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distribution or any disclosure required by legal or regulatory requirements
beyond the reasonable control of either party, and except for catalogs,
advertising and marketing materials customarily used by Distributor in the
normal course of business, all media releases, public announcements or
public disclosures relating to this Agreement or its subject matter, or
including the name of either party, shall be approved in writing (within 48
hours of submission) by the other party prior to the release thereof.
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7.7 Disputes Resolution. In the event of any disagreement regarding performance
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under or interpretation of this Agreement, prior to the commencement of any
formal proceedings, the parties shall continue performance as set forth in
this Agreement and shall attempt in good faith to reach a negotiated
resolution by designating an officer or authorized representative of the
party to resolve the dispute.
7.8 Arbitration. Should Manufacturer and Distributor disagree on any
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performance hereunder, the shall be decided by binding arbitration.
Arbitration shall be conducted in Greenville, South Carolina in accordance
with the then existing rules of the American Arbitration Association. There
are to be three (3) mutually agreed upon arbitrators. Judgement upon any
award by the arbitrators may be entered by the state or federal court
having jurisdiction. The parties intend that this Agreement to arbitrate
the aforementioned issue contained in this Paragraph 7.8 be irrevocable and
limited to said issue.
7.9 Compliance with Laws. In supplying the Products pursuant to this Agreement,
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Distributor and Manufacturer shall comply with the requirements of all
applicable laws, ordinances and regulations of the United States or any
state, country or other governmental entity.
7.10 Notices. Wherever one party is required or permitted to give notice to the
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other pursuant to this Agreement, such notice shall be deemed given when
delivered in hand, by telex, cable, facsimile, or when mailed by registered
or certified mail, return receipt requested, postage prepaid, and addressed
as follows:
In the case of Manufacturer: In the case of Distributor:
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Javelin Systems, Inc. ScanSource, Inc.
0000X Xxxxxx Xxx. 0 Xxxxx Xx.
Xxxxxx, XX 00000 Suite G
Att: President Xxxxxxxxxx, XX 00000
Fax #: 000-000-0000 Fax #: 000-000-0000
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective.
7.11 Force Majeure. If the performance of this Agreement, or any obligations
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hereunder, is prevented, restricted, or interfered with by reason of fire
or other casualty or accidents; strikes or labor disputes; inability to
provide raw materials, power, or supplies; declarations of war or other
violence; any law, order, proclamation, regulation, ordinance, demand or
other requirement of any governmental authority; the parties so affected,
upon giving prompt notice to the other party, will be excused from
performance to the extent of the prevention, restriction, or interference,
provided that the party so affected uses its best
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efforts to avoid or remove the causes of non-performance and continues
performance hereunder whenever those causes are removed.
7.12 Severability. Whenever possible, each provision of this Agreement shall
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be interpreted in such a manner as to be effective and valid under the
applicable law. In the event that any provision(s) contained in this
Agreement is held to be unenforceable, this Agreement shall be construed
without such provision(s).
7.13 Waiver. No delay or omission by either party to exercise any right or
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power shall impair any such right or power or be construed to be a waiver
thereof. A waiver by either of the parties of any covenants, conditions or
agreements to be performed by the other or any breach thereof shall not
be construed to be a waiver of any succeeding breach thereof or of any
other covenant, condition or agreement herein contained. No change,
waiver, or discharge hereof shall be valid unless presented in writing to
all interested parties and signed by an authorized representative of the
party against which such change, waiver, or discharge is sought to be
enforced.
7.14 Remedies. All remedies set forth in this Agreement shall be cumulative
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and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise, and may be enforced
concurrently or from time to time.
7.15 Survival of Terms. Termination or expiration of this Agreement for any
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reason shall not release either party from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed
shall survive any such termination or expiration, or (ii) remain to be
performed or by their nature would be intended to be applicable following
any such termination or expiration.
7.16 Nonexclusive Market and Purchase Rights. It is expressly understood and
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agreed that this Agreement does not grant to Manufacturer or Distributor
an exclusive right to purchase or sell Products and shall not prevent
either party from developing or acquiring other suppliers or customers.
7.17 Entire Agreement. This Agreement, including any Exhibits and documents
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referred to in this Agreement or attached hereto, constitutes the entire
and exclusive statement of Agreement between the parties with respect to
its subject matters and there are no oral or written representations,
understandings or agreements relating to this Agreement which are not
fully expressed herein.
7.18 Governing law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of South Carolina.
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7.19 Attorneys' Fees. The prevailing party in any proceedings (including,
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without limitation any arbitration proceedings) arising in connection with
this Agreement shall be entitled to reimbursement for its reasonable costs
incurred in connection therewith, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
DISTRIBUTOR MANUFACTURER
/s/ XXXXXXX X. XXXX /s/ XXXXXXX XXXXX
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Signature Signature
XXXXXXX X. XXXX XXXXXXX XXXXX
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Printed or Typed Name Printed or Typed Name
PRESIDENT PRESIDENT
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Title Title
3-14-97 2-27-97
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Date Date
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