DISTRIBUTION AGREEMENT
Exhibit 10.2
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
THIS AGREEMENT, dated as of June 4, 2007, is between ScanSource, Inc., a South Carolina
corporation and its affiliates (“ScanSource”), with its principal corporate address at 0 Xxxxx
Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 and Supplier, Aruba Networks, Inc. (“Supplier” or
“Vendor”), with its principal corporate address at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000.
RECITALS
A. ScanSource desires to purchase certain Products from Supplier from time to time and
Supplier desires to sell certain Products to ScanSource in accordance with the terms and conditions
set forth in this Agreement.
B. Supplier desires to appoint ScanSource as its non-exclusive distributor to market Products
within the Territory (as hereinafter defined) and ScanSource accepts such appointment on the terms
set forth in this Agreement.
NOW, THEREFORE, in consideration of the Recitals, the mutual covenants contained in this Agreement
and other good and valuable consideration, ScanSource and Supplier hereby agree as follows:
ARTICLE I.
DEFINITIONS, APPOINTMENT AND TERM OF AGREEMENT
1.1 Definitions. The following definitions shall apply to this Agreement.
| (a) | “Customers” of ScanSource shall include dealers, resellers, value added resellers,
direct resellers and other entities that acquire the Products from ScanSource and are
authorized by the Supplier to resell or lease the Products to the Customers. |
||
| (b) | “DOA” shall mean Product, or any portion thereof, which fails to operate properly on
initial installation, boot, or use, as applicable. |
||
| (c) | “Documentation” means the literature, including the End User License Agreement,
provided by Supplier with the Products, whether in hard copy or electronic form. |
||
| (d) | “Effective Date” shall mean the date on which this Agreement is signed and dated by
the last party signing this Agreement. |
| (e) | “End Users” shall mean the final purchasers or licensees who have acquired Products
for their own use and not for resale, remarketing or redistribution. |
||
| (f) | “Freight Policy” shall mean ScanSource’s inbound transportation routing instructions
and guidelines currently in effect as set out in Exhibit C. |
||
| (g) | “Non-Saleable Products” shall mean any Product that has been returned to ScanSource
by its Customers that has had the outside shrink wrapping or other packaging seal broken; any
components of the original package are missing, damaged or modified; or is otherwise not fit
for resale. |
||
| (h) | “Products” shall mean, individually or collectively, the equipment, software
licenses, electronic products, and sealed software packages comprised of the computer programs
encoded on media together with manuals, materials and other contents of the packages
associated therewith, if any, as more fully described in Exhibit A attached hereto. |
||
| (i) | “Return Credit” shall mean a credit to ScanSource in an amount equal to the price
paid by ScanSource for Products less any price protection credits but not including any early
payment, prepayment or other discounts. |
||
| (j) | “Services” means any warranty, maintenance, advertising, marketing or technical
support and any other services performed or to be performed by Supplier. |
||
| (k) | “Territory” shall mean the United States of America, Canada, and Mexico. |
1.2 Term of 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 and
effect for a term of two (2) years, and will be automatically renewed for successive one (1) year
terms unless prior written notification of termination or non-renewal is delivered by one of the
parties in accordance with the notice provision of this Agreement no less than sixty (60) days
prior to the end each term.
1.3 Appointment as Distributor. Supplier hereby grants to ScanSource the non-exclusive right
and license to distribute Products during the term of this Agreement within the Territory, together
with any updates or enhancements to the Products and any new releases related to the Products. This
license includes the right to order, possess and distribute the Products to Customers and to
provide the Products to Customers for use as demonstration units. Supplier and ScanSource
acknowledge and agree that any license to use the Product is solely between Supplier and the End
User and is governed by the terms of the Vendor’s standard use license enclosed with the Product,
and ScanSource shall have no right hereunder to use, copy, modify, reverse engineer, reverse
compile or reverse assemble any Product except as expressly permitted by applicable law or this
Agreement. This Agreement does not grant Supplier or ScanSource an exclusive right to purchase or
sell Products and shall not prevent either party from developing or acquiring other vendors or
customers or competing Products. ScanSource will use commercially reasonable efforts to promote
distribution of the Products. Supplier agrees that ScanSource may obtain Products in accordance
with this Agreement for the benefit of its affiliates and subsidiaries, provided that ScanSource
remains responsible for all actions and liabilities of such entities.
3.2 Title and Risk of Loss. FOB Supplier warehouse. Title and risk of loss or damage to
Products shall pass to ScanSource at the time the Products are delivered to the carrier. Supplier
and ScanSource agree that no title or ownership of the proprietary rights to any software code is
transferred by virtue of this Agreement notwithstanding the use of terms such as “purchase”, “sale”
or the like within this Agreement. Supplier retains all ownership rights and title to any software
code within the Products.
3.3 Transportation of Products. Supplier shall deliver the Products to ScanSource’s carrier
with serial number, product description and machine readable bar code (employing UPC or other
industry standard bar code) clearly marked on the Product package. Supplier shall use commercially
reasonable efforts to deliver Products by the delivery date set forth in the applicable purchase
order or as otherwise agreed upon by the parties. ScanSource shall have the right to select the
common carrier and all charges for transportation of the Products shall be paid by ScanSource. If
the common carrier is not specified, Supplier will use reasonable efforts to choose the least cost
carrier, which shall be paid by ScanSource. Supplier will comply with the Freight Policy set forth
in Exhibit C.
ARTICLE IV. RETURNS
4.1 Inventory Adjustment. ScanSource may return overstocked Products to Supplier for a full
credit of the price paid for such Products, provided that (i) ScanSource submits to Supplier its
notice to return Product (“RMA Request”) within the ten (10) day period following each calendar
quarters (ending March 31st, June 30th, September 30th
and
December 31st); (ii) such credit does not to exceed [***] percent ([***]%) of the net
shipments to ScanSource during the calendar quarter immediately preceding the date of ScanSource’s
RMA Requests. Shipments of Products being returned shall be new, unused and in original, sealed
cartons. ScanSource may only return Products which have been received into ScanSource’s inventory
during the previous four (4) fiscal quarters, and otherwise still listed on Supplier’s Price List.
ScanSource may not return product that was previously reported to Supplier as sold through to an
end customer via a PO or Point of Sale report. Consequently, returned product shall not be returned
from Customer’s inventory. Supplier shall credit ScanSource’s account in the amount of the Return
Credit. ScanSource may apply Return Credits to any Supplier invoice. ScanSource shall pay for
freight charges under this section.
4.2 Defective Products/Dead on Arrival (DOA). ScanSource shall have the right to return to
Supplier for Return Credit any DOA Product that is returned to ScanSource within ninety (90) days
after the initial delivery date to the End User and any Product that fails to perform in accordance
with Supplier’s Product warranty may be returned at any time during the applicable warranty period.
Supplier shall bear all costs of shipping and risk of loss of DOA and in-warranty Products to
Supplier’s location and back to ScanSource, ScanSource’s Customer, or End User as may be specified
by ScanSource.
4.3 End of Life or Discontinued Product. ScanSource shall have the right to return for
Return Credit all Products that become discontinued or updated and are removed from Supplier’s
current price list; provided ScanSource returns such Products within sixty (60) days after
ScanSource receives written notice from Supplier that such Products are removed from Supplier’s
price list and the Products have not been sold through to Customers;. Supplier shall bear all costs
of shipping and risk of loss of Discontinued Products to Supplier’s location. Subject to the
provisions of Section 4.1 noted above.
*** Certain information
on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
4.4 Condition Precedent to Returns. As a condition precedent to returning Products,
ScanSource shall request and Supplier shall issue a Return Material Authorization Number (RMA),
provided, however, that in the event such RMA is not issued within 15 days of the request,
ScanSource shall have the right to return any units of the Product(s) to Supplier without an RMA,
and Supplier shall be obligated to accept such return.
ARTICLE V. PAYMENT TO SUPPLIER
5.1 Charges, Prices and Fees for Products. Charges, prices, quantities and discounts, if
any, for Products shall be determined as set forth in Exhibit A, or as otherwise mutually
agreed upon by the parties in writing, and may be confirmed at the time of order. In no event shall
charges exceed Supplier’s then current wholesale list prices. ScanSource shall not be bound by any
of Supplier’s suggested resale prices.
5.2 Payment. Except as otherwise set forth in this Agreement, any undisputed sum due to
Supplier pursuant to this Agreement shall be payable net [***] ([***]) days after the shipping date.
Supplier shall invoice ScanSource no earlier than the applicable shipping date for the Products
covered by such invoice. In the event Products are shipped from outside the United States payments
related to that shipment are payable net [***] ([***]) from receipt. The due date for payment shall
be extended during any time the parties have a bona fide dispute concerning such payment.
Notwithstanding anything herein to the contrary, for the initial order only, ScanSource may return
up to [***]% of the Products delivered under the initial order for Return Credit up to [***] days from
the date of delivery. This return right applies only if the initial order does not exceed $[***].
5.3 Invoices. A “correct” invoice shall contain (i) Supplier’s name and invoice date, (ii)
a reference to the purchase order or other authorizing document, (iii) separate descriptions, unit
prices and quantities of the Products being invoiced, (iv) credits (if applicable), (v) shipping
charges (if applicable) (vi) name (where applicable), title, phone number and complete mailing
address as to where payment is to be sent, and (vii) other substantiating documentation or
information as may reasonably be required by ScanSource from time to time. Notwithstanding any
pre-printed terms or conditions on Supplier’s invoices, the terms and conditions of this Agreement
shall apply to and govern all invoices issued by Supplier hereunder, except that invoices may
include other terms and conditions which are consistent with the terms and conditions of this
Agreement, or which are mutually agreed to in writing by ScanSource and Supplier.
5.4 Taxes. Product prices and fees do not include any federal, state, foreign, provincial,
regional, county, or local sales, use, excise, or other taxes. ScanSource agrees to provide
Supplier with valid and appropriate resale tax exemption certificates, acceptable to both parties
and the applicable taxing authority, whereby upon receipt no sales and use, VAT, or GST tax shall
be invoiced. Supplier shall be responsible for all taxes, assessments, permits, and fees, however
designated, which are levied upon this Agreement. No taxes of any type shall be added to invoices
without prior written approval of ScanSource.
*** Certain information on this page has been omitted
and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.
5.5 Pricing and Terms. Supplier represents that the prices charged and the terms offered to
ScanSource are and will be no less favorable to ScanSource than those made
available by Supplier to any similarly situated distributors, aggregators, or resellers of such
Product in the Territory who purchases similar quantities. If Supplier offers more favorable
pricing or terms generally to others, ScanSource may also be entitled to participate if distributor
can match capabilities and reach. This section does not apply to non-standard pricing (NSP) deals
offered from time to time by Supplier.
5.6 Price Adjustments.
(a) Price Increases. Supplier shall have the right to increase prices from time to time upon
written notice to ScanSource 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 invoiced by Supplier at the price in effect at the
time of order.
(b) Price Decreases. Supplier shall have the right to decrease prices from time to time, upon
written notice to ScanSource. ScanSource shall be entitled to receive an inventory price credit
from Supplier for any Products that were shipped by Supplier to ScanSource provided those Products
remain in inventory or were in transit between Supplier and ScanSource on the effective date of the
Price Decrease. Products must still be on Supplier’s Price List or be subject to Section 4.3, End
of Life or Discontinued Product provisions. Credits will not be issued for Products that were
previously reported to Supplier as sold through to an end customer or reseller via a PO or Point of
Sale report or in Customer’s inventory. ScanSource’s credit hereunder shall be calculated as the
difference between the invoice price actually charged to ScanSource for the Products and the new
reduced price obtained through the Price Decrease for each unit of the Products held in
ScanSource’s inventory as of the effective date of the Price Decrease. ScanSource may apply Credits
to any Supplier invoice. Supplier shall have the right to a reasonable audit of the price credits
claimed at Supplier’s expense.
5.7 Recoupment.
(a) Upon the termination of this Agreement, ScanSource shall have the right of recoupment with
respect to all amounts owed to it by Supplier under this Agreement. Any amounts payable to
ScanSource under this Agreement for any reason (including, without limitation, for price
protection, product returns, or marketing funds) shall first be applied as a credit by ScanSource
and shall reduce any uncontested amounts owed by ScanSource to Supplier. In the event that
ScanSource maintains a credit balance with Supplier after application of credits, Supplier shall,
upon ScanSource’s request, promptly pay ScanSource the amount of the remaining credit balance.
(b) Upon the termination of this Agreement, ScanSource shall have the right of recoupment with
respect to any amounts owed by it to Supplier. Any amounts owed to Supplier by ScanSource under
this Agreement for any reason (including, without limitation, for the purchase of products) shall
first be reduced by any amounts owed to ScanSource by Supplier. In the event that ScanSource
maintains a debit balance with Supplier after such reduction (including the application of
credits), ScanSource shall pay Supplier the amount owed by ScanSource to Supplier.
5.8 Advertising, Co-op, MDF and Training.
(a) Cooperative Advertising. Supplier may offer a co-op program and may offer at its sole
option additional advertising credits or other promotional programs or incentives to ScanSource.
ScanSource shall have the right to the extent that it is given access to such program(s), at
ScanSource’s option, to participate in any such offered programs. Attached as Exhibit B is
a copy of Supplier’s Co-Op policy. All monies spent require Supplier prior approval.
(b) Programs and Development Funds. Supplier shall provide ScanSource with marketing
development funds (“MDF”) equal to [***] ([***]%) percent of Products sold to Customers by ScanSource.
Such funds shall be used in connection with marketing programs to be mutually agreed upon by
Supplier and ScanSource. ScanSource may not apply MDF credits to Supplier invoices except at
termination of this Agreement as set forth in Section 5.7. Supplier shall also provide ScanSource
with Product launch funds of at least $[***], matched by a $[***] contribution by ScanSource, to
be utilized by ScanSource to conduct initial marketing activities in connection with the
commencement of ScanSource’s relationship with Supplier, such funds to be expended in accordance
with a launch plan to be mutually agreed upon by Supplier and ScanSource. ScanSource shall invoice
Supplier for all marketing development and launch funds due ScanSource hereunder, and such invoices
shall be due and payable within [***] ([***]) days after receipt. No more than [***] ([***]) percent of
MDF may be used for Distributor training, and only as mutually agreed. Continued provision of
marketing development funds, the level of such funds, and structure of the associated program(s)
shall be at Supplier’s sole discretion.
(c) Advertising Support. Supplier shall provide to ScanSource and the Customers of ScanSource
marketing support and advertising materials in connection with the resale of Products as are
currently offered or that may be offered by Supplier. ScanSource reserves the right to charge
Supplier for advertising, marketing and training services which are preapproved by Supplier and
fall under the agreed MDF plan listed above. ScanSource, in its sole discretion, may publish the
support and advertising materials through any available medium, including, without, limitation,
through on-line computer networks, print media, CD ROM, diskette, facsimile, cable or satellite
transmission. The type, amount and usage of the information products shall be as determined by
ScanSource from time to time, in its sole discretion, ScanSource, in its sole discretion, may elect
to charge the recipient of the information products and the pricing charged by ScanSource may
include a profit for ScanSource.
(d) Training Programs. Supplier and ScanSource agree to abide by training guideline listed in
Exhibit E
(e) Product Support Services. Supplier and ScanSource may choose to amend Agreement to provide
such solution coverage.
*** Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
ARTICLE VI. WARRANTIES,
INDEMNITIES AND OTHER OBLIGATIONS
6.1 Supplier Warranty.
(a) Warranty. Supplier provides a warranty only to the End Users that the Hardware
portion of Products will substantially conform to the Specifications for a period of [***] ([***])
months from the date of shipment to Solution Provider. For the Software portion of Products,
Supplier provides the warranty set forth in its End User License Agreement. In the event of a
breach of this warranty, Solution Provider’s sole and exclusive remedy, and Supplier’s sole and
exclusive liability, shall be for Supplier to use its commercially reasonable efforts to correct or
repair the Products or to replace the Products that cause breach of this warranty. If Supplier
cannot, or determines that it is not practical to, repair or replace the returned Product, then the
sole and exclusive remedy and the limit of Supplier’s obligation shall be to refund the amount
received price by Supplier from Solution Provider for such Products, or at Supplier’s discretion,
credit such amount against other Solution Provider obligations or toward future purchases.
(b) Warranty Exclusions. The warranties do not extend to any Product that is modified
or altered, is not maintained to Supplier’s maintenance recommendations, is operated in a manner
other than that specified by Supplier, has its serial number removed or altered or is treated with
abuse, negligence or other improper treatment (including, without limitation, use outside the
recommended environment) or is repaired or modified by anyone other than Supplier or an Supplier
authorized company. Solution Provider is fully responsible for the satisfaction of its End Users
and will be responsible for all claims, damages, settlements, expenses and attorneys’ fees incurred
by Supplier with respect to Solution Provider’s End Users or their claims beyond Supplier’s above
warranty obligation to Solution Provider.
(c) Warranty Returns. Solution Provider will handle and be responsible for all
warranty returns from its End Users. All Products must be returned to Supplier in accordance with
Supplier’s then-current Return Material Authorization (RMA) procedure. Products obtained from
Supplier that do not comply with the warranty and are returned (by Solution Provider only) to
Supplier during the warranty period will be repaired or replaced at Supplier’s option, provided
Solution Provider bears the cost of freight, insurance, duties and import and export fees to the
point of repair or return. If the returned Products are covered by the above warranty, Supplier
will bear the cost of freight, insurance, duties and import and export fees for return of goods to
Solution Provider. For the first thirty (30) days after shipment, Supplier will ship any non-compliant Product with a new Product shipped within one business day of notice via the RMA
procedure. End Users may purchase an extension of this next business day protection through a
separate support and service agreement. In the absence of such a support and service agreement, for
thirty or more days after shipment but within the twelve month warranty period, Supplier will
replace or repair any non-compliant Product and return in operable condition to Solution Provider
within forty-five (45) days of notice and receipt of the non-compliant Product via our RMA
procedure. Access to Supplier’s Technical Assistance Center (“TAC”) for any and all questions,
consultation, deployment assistance, or problem reports shall be provided only pursuant to a
separate service and support agreement.
*** Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(d) Additional Supplier Warranties. Supplier hereby represents and warrants that Supplier
has all right, title, ownership interest and marketing rights necessary to provide
the Products to ScanSource. Supplier further represents and warrants that it has not entered into
any agreements or commitments which are inconsistent with or in conflict with the rights granted to
ScanSource in this Agreement; the Products are new and when provided to ScanSource and are free and
clear of all liens and encumbrances; ScanSource and its Customers and End Users shall be entitled
to use the Products without disturbance; the Products have been listed with Underwriters’
Laboratories or other nationally recognized testing laboratory whenever such listing is required;
if applicable, the Products meet all FCC requirements; the Products do and will conform to all
codes, laws or regulations; and the Products conform in all respects to the Product warranties.
Supplier agrees that ScanSource shall be entitled to pass through to Customers and End Users all
Product warranties granted by Supplier. ScanSource shall have no authority to alter or extend any
of the warranties of Supplier expressly contained or referred to in this Agreement without prior
approval of Supplier. Supplier has made express warranties in this Agreement and in the
Documentation. EXCEPT AS SET FORTH HEREIN OR IN THE END USER WARRANTIES ENCLOSED IN THE PRODUCT
PACKAGING, SUPPLIER DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITYAND FITNESS FOR A PARTICULAR PURPOSE. THIS
SECTION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
6.2 ScanSource Warranty
(a) Marketing and Promotion. ScanSource shall use commercially reasonable efforts to
market, promote, and sell the Products in accordance with the terms of this Agreement and shall not
make any representations about the Products other than those provided in the Supplier’s written
documentation.
(b) Support Staff. ScanSource shall maintain, subject to its sole judgment and
determination, a staff of sales, marketing and technical personnel familiar with the applications,
features, benefits, operation and configuration of the Products. Notwithstanding the above,
ScanSource shall assign at least one (1) person to be substantially dedicated to Supplier during
the term of this contract.
(c) License Agreement. ScanSource agrees to distribute the Software for use solely in
conjunction with and as embedded in the Products and solely in accordance with the then-current End
User License Agreement, and assist with best efforts Supplier to promote the terms of such End User
License Agreement to the resellers. (See Exhibit H)
(d) Products. Promptly report to Supplier any reported Product suggestions and defects
(including safety problems) in such detail as to make it possible for Supplier to duplicate such
defects in an effort to correct them (and ScanSource acknowledges and agrees that Supplier has an
irrevocable, royalty-free right to fully exploit any such information, including, without
limitation, modifying Products to address such issues);
(e) FCPA Warranty In carrying out its responsibilities under the Agreement, the
ScanSource’s owners, directors, officers, employees or agents thereof, have not and will not pay,
offer or promise to pay, or authorize the payment directly or indirectly of any monies or anything
of value to any government official or employee, or any political party or candidate for political
office for the purpose of influencing any act or decision of such
official or of the government to obtain or retain business or direct business to any person
(any such payment is a “Prohibited Payment”).
(i) No owner, partner, officer, director or employee of ScanSource or of any affiliate company
of ScanSource is or will become an official or employee of the government, concurrent with their
ScanSource employment, during the term of this Agreement without the prior written consent of
Supplier; and
(ii) In the event Supplier has reason to believe that a breach of any of the representations
and warranties in this Section 6.2(c) has occurred or may occur, Supplier may withhold further
delivery of products until such time as it has received confirmation to its satisfaction that no
breach has occurred or will occur.
(iii) Supplier shall not be liable to ScanSource for any claim, losses or damages whatsoever
related to its decision to withhold delivery under this Section 6.2(c).
(iv) In the event Supplier has reason to believe that a breach of any of the representations
and warranties in this Section 6.2(c) has occurred or may occur, Supplier shall have the right to
audit, at its own expense, ScanSource in order to satisfy itself that no breach has occurred. Upon
request by ScanSource, Supplier shall select an independent third party to conduct an audit of
ScanSource in order to certify to Supplier that no breach has occurred or will occur. ScanSource
shall fully cooperate in any audit conducted by or on behalf of Supplier.
(v) In the event Supplier concludes in its sole and absolute opinion, that ScanSource has
failed to meet its obligations under this Article, this Agreement may be immediately terminated by
Supplier upon written notice to ScanSource. ScanSource shall indemnify and hold Supplier harmless
against any and all claims, losses or damages arising from or related to such breach or the
cancellation of the Agreement, or both.
(vi) In no event shall Supplier be obligated under this Agreement to take any action or omit
to take any action which Supplier believes in good faith would cause it to be in violation of any
laws of the Territory or any U.S. laws, including without limitation the Foreign Corrupt Practices
Act.
6.3 Intellectual Property Representations and Warranties.
Supplier hereby represents and warrants to ScanSource that Supplier is the sole and exclusive owner
or valid licensee, and/or authorized user of all right, title and interest in and to the Products
provided by Supplier hereunder. Supplier hereby represents and warrants to ScanSource that the
Products and the manufacture, receipt, distribution, sale, offer for sale and/or use of the
Products by ScanSource and ScanSource’s Customers and End Users do not infringe, whether indirectly
(e.g., contributorily or by induced infringement) or directly, upon any copyright, trademark, trade
dress, trade secret or patent or other proprietary or intellectual property right of any third
party in the United States or in any country or jurisdiction worldwide. Supplier hereby represents
and warrants to ScanSource that there are no suits or proceedings, pending or threatened (or for
which any basis exists) alleging any such infringement. Supplier hereby represents and warrants to
ScanSource that Supplier has no obligations to any
third party that in any way limits or restricts ScanSource’s ability to receive, distribute, sale
or offer for sale the Products.
6.4 Intellectual Property Indemnification.
Supplier shall defend ScanSource and its officers, directors, agents and employees (“Indemnified
Party”) against claims brought against them by a third party arising from infringement by the
Product of patent, copyright, trademark, trade dress, or trade secret right in The Territory and
pay all costs, damages and expenses (including reasonable legal fees) finally awarded against an
Indemnified Party by a court of competent jurisdiction, or as agreed to in a written settlement
agreement signed by Supplier; provided that: (i) such Indemnified Party notifies Supplier in
writing of any and all threats, claims and proceedings related thereto within twenty days of first
learning of any such threats or claims; (ii) Supplier is given the opportunity to assume sole
control over the defense and all negotiations for a settlement or compromise; and (iii) such
Indemnified Party provides Supplier, at Supplier’s request, with the reasonable assistance and
information necessary to perform Supplier’s obligations under this Section. Supplier will not be
responsible for any settlement it does not approve in writing. The foregoing obligation of Supplier
does not apply with respect to Product or portions or components thereof (i) that are not supplied
or developed by Supplier, (ii) that are made in whole or in part in accordance with ScanSource
specifications, (iii) that are modified, without Supplier’s approval, after shipment by ScanSource,
if the alleged infringement relates to such modification, (iv) that are combined, without
Supplier’s approval, with other products, processes or materials where the alleged infringement
relates to such combination, (v) where ScanSource continues allegedly infringing activity after
being notified thereof or after being informed of modifications that would have avoided the alleged
infringement, (vi) or (vii) where ScanSource’s use is not in accordance with this Agreement and all
applicable licenses and documentation.
In the event that Supplier reasonably believes that the use of the Products may be enjoined or
otherwise infringe third party rights, Supplier shall use reasonable efforts to procure on
reasonable terms the right to continue using the Products, or to replace or modify the Products so
that they are outside the scope of the injunction or infringement. If neither of those actions is
reasonably feasible despite of Supplier’s diligent efforts, Supplier shall refund to ScanSource the
unamortized portion of the purchase price or license fee actually paid by ScanSource for such
Products (as amortized on a straight-line basis over five years from the date of shipment of such
Product). The foregoing states the parties’ entire rights and liabilities with respect to
infringement of third party intellectual property rights.
Supplier’s obligations under this Section are of an indefinite term and shall survive termination
or expiration of this Agreement.
THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER TO SCANSOURCE CONCERNING WARRANTIES OF
INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION OF INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING,
BUT NOT LIMITED TO, PATENT, COPYRIGHT, TRADEMARK, TRADE DRESS AND TRADE SECRETS.
6.5 General Indemnity.
(a) Supplier. Supplier shall be solely responsible for the design, development, supply,
production and performance of the Products. Supplier agrees to indemnify and hold ScanSource, any
parent, affiliates and subsidiaries and their officers, directors and employees harmless from and
against any and all third party claims, damages, costs, expenses (including, but not limited to,
reasonable attorneys fees and costs) or liabilities that may result, in whole or in part, from any
warranty or Product liability claim or for claims for violation of any of the warranties contained
in this Agreement.
(b) ScanSource. ScanSource agrees to indemnify and hold Supplier, its officers, directors and
employees harmless from and against any and all claims, damages, costs, expenses (including, but
not limited to, reasonable attorneys’ fees and costs) or liabilities that may result, in whole or
in part, from ScanSource’s negligence or misconduct in the distribution of the Products pursuant to
this Agreement, or for claims for violation of any of the warranties contained in this Agreement.
Furthermore, ScanSource agrees to indemnify and hold Supplier, its officers, directors and
employees harmless from infringement due to combination with products, processes or materials, or
continuation of infringement after Suppliers notification of such infringing combinations.
6.6 Insurance.
(a) The parties shall be responsible for providing Worker’s Compensation insurance in the
statutory amounts required by the applicable state laws.
(b) Without in any way limiting Supplier’s indemnification obligation as set forth in this
Agreement, Supplier shall maintain Commercial General Liability or Comprehensive General Liability
Insurance in such amounts as is reasonable and standard for the industry.
(c) Supplier will upon request provide evidence of the existence of insurance coverages
referred to in this Section 6.6 by certificates of insurance which should also provide for at least
thirty (30) days notice of cancellation, non-renewal or material change of coverage to ScanSource.
The certificates of insurance shall name ScanSource, Inc., its affiliates and subsidiaries as an
additional insured for the limited purpose of claims arising pursuant to this Agreement.
6.7 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PURSUANT TO THIS
AGREEMENT FOR AMOUNTS REPRESENTING INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE
DAMAGES OF THE OTHER PARTY, LOST PROFITS OR LOST DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY, OR SERVICES OR FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE ARISING
FROM THE PERFORMANCE OR BREACH OF ANY TERMS OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN MADE
AWARE OF THE POSSIBILITIES OF SUCH DAMAGES.
6.8 Vendor Reports. Supplier shall, if requested, render monthly reports to ScanSource
setting forth the separate Products, dollars invoiced for each Product, and total dollars invoiced
to ScanSource for the month, and such other information as ScanSource may reasonably request.
6.9 ScanSource Reports. ScanSource shall make best efforts to provide Supplier monthly
sales out reports within two (2) days of the end of each month in the format specified in Exhibit
G. Information provided may include: date sales activity occurred, internal product number
(assigned by ScanSource), description, state and zip-code of Customer’s location, unit cost
(ScanSource cost at quantity 1), quantity and extended cost (cost times quantity). Supplier agrees
that any such information provided by ScanSource shall be received and held by Supplier in strict
confidence and shall be used solely for sell through or compensation reporting information,
monitoring sales activities and forecasts. Supplier agrees that it will not use this information to
sell directly to those Customers.
6.10 Product Warranty Support. Supplier will be responsible for providing support and
maintenance for the Products at least sufficient to perform its warranty obligations as provided in
the Product Documentation as noted in Section 6.1.
6.11 Trademark Usage. ScanSource is hereby authorized and licensed to use the trademarks,
trade names, spec sheets, photographs, logos and other proprietary information related to the
Products in connection with advertising, promoting or distributing the Products. ScanSource
recognizes Supplier or other third parties may have rights or ownership of certain trademarks,
trade names and patents associated with the Products. ScanSource will act consistent with such
rights, and ScanSource shall comply with any written guidelines provided by Supplier or third
parties licensing Supplier related to such trademark or trade name usage. ScanSource will notify
Supplier of any infringement of which ScanSource has actual knowledge. ScanSource shall discontinue
use of Supplier’s trademarks or trade names upon termination of this Agreement, except as may be
necessary to sell or liquidate any Product remaining in ScanSource’s inventory. ScanSource will at
all times conduct its business in which it uses the trademarks of Supplier in a manner consistent
with the standard of quality established by written guidelines provided to ScanSource by Supplier
for such marks. ScanSource shall at no time register any Supplier trade names or trademarks or any
xxxx or name confusingly similar thereto.
6.12 Product Set Up, Descriptions and Technical Support Requirements. Supplier shall
provide ScanSource with the materials set forth on Exhibit D hereto. ScanSource may, from
time to time, change the requirements set forth in Exhibit D, and Supplier in its
discretion may continue to provide such new materials. Supplier shall be solely responsible for the
factual accuracy and completeness of any information or materials provided to ScanSource.
ScanSource reserves the right to delay set up in ScanSource’s systems of any Product for which this
information is not provided.
6.13 New Products. Supplier agrees to provide ScanSource with the material described in
Section 6.11 and Exhibit D hereof for all updates and revisions of each Product and for
each new Product made available for distribution by Supplier during the term of this Agreement, and
shall provide ScanSource with thirty (30) days prior notice or at least as much notice given to any
other similar purchaser of any such update, revision or new Product.
6.14 Product Changes. Supplier shall give ScanSource thirty (30) days notice, or at least
as much notice as is given to any other similar purchaser for any changes in Product packaging,
documentation or major version changes.
6.15 Environmental Fees. Supplier accepts all responsibility for compliance with, and
collection and remittance of, all environmental and hazardous materials recycling fees, taxes,
surcharges, and assessments existing now or in the future that apply to the Products. This
obligation applies to all regulatory actions implemented by both domestic and foreign
jurisdictions. To the extent ScanSource is legally obligated to remit or collect such fees, pay any
registration costs or expend resources or money for any associated reporting obligations, Supplier
agrees to reimburse ScanSource, within 30 days of receipt of an invoice detailing the payment to be
made. Supplier agrees to indemnify and hold ScanSource, its officers, directors and employees
harmless from and against any and all claims, damages, costs, expenses (including, but not limited
to, reasonable attorneys’ fees and costs) or liabilities that may result, in whole or in part, from
Supplier’s non-compliance with any environmental or hazardous materials regulatory regime in
relation to the Products pursuant to this Agreement.
6.16 Labeling Regulations. Supplier accepts all responsibility for compliance with any
regulations promulgated by a domestic or foreign jurisdiction imposing labeling requirements on the
Products. Supplier agrees to accept any return of Products from ScanSource, at no cost and without
penalty to ScanSource, that are non-saleable due to labeling regulations and to provide substitute
Products that are compliant with the applicable regulations.
ARTICLE VII. TERMINATION OR EXPIRATION
7.1 Termination.
(a) Termination With or Without Cause. The Parties may mutually agree to terminate
this Agreement under terms and conditions to be agreed to at such time (Termination Without Cause).
In the event that either party materially defaults in the performance of any material duties or
obligations set forth in this Agreement (Termination With Cause), and such default is not
substantially cured within thirty (30) calendar days after written notice 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.
(b) Termination for Insolvency or Bankruptcy. Either party may immediately terminate
this Agreement and any purchase orders by giving written notice to the other party in the event of
(i) the liquidation or insolvency of the other party, (ii) the appointment of a receiver or similar
officer for the other party, (iii) an assignment by the other party for the benefit of all or
substantially all of its creditors, (iv) entry by the other party into an agreement for the
composition, extension, or readjustment of all or substantially all of its obligations, or (v) the
filing of a petition in bankruptcy by or against a party under any bankruptcy or debtors’ law for
its relief or reorganization which is not dismissed within ninety (90) days.
7.2 Rights Upon Termination or Expiration.
(a) Termination or expiration of this Agreement shall not affect Supplier’s right to be paid for
undisputed invoices for Products already shipped and accepted by ScanSource or ScanSource’s rights
to any credits or payments owed or accrued to the date of
termination or expiration. ScanSource’s rights to credits upon termination or expiration shall
include credits against which ScanSource would, but for termination or expiration, be required
under this Agreement to apply to future purchases.
(b) Supplier shall accept purchase orders from ScanSource for additional Products which
ScanSource is contractually obligated to furnish to its Customers and does not have in its
inventory upon the termination or expiration of this Agreement; provided ScanSource notifies
Supplier of any and all such transactions within sixty (60) days following the termination or
expiration date.
(c) Upon termination or expiration of this Agreement, ScanSource shall discontinue holding
itself out as a distributor of the Products, except that ScanSource is authorized to sell any
Products remaining in its inventory or which it is contractually obligated to furnish to Customers.
7.3 Repurchase of Products Upon Termination or Expiration. Upon the effective date of
termination or expiration of this Agreement for any reason other than termination by Supplier for
cause per Section 7.1a, Supplier may repurchase Products in ScanSource’s inventory and Products
which are returned to ScanSource by its Customers within ninety (90) days following the effective
date of termination or expiration. Within 90 days following the effective date of termination or
expiration, ScanSource may return to Supplier, or at Supplier’s option, certify destruction of same
Product held in ScanSource’s inventory as of the effective date of termination or expiration.
Additional returns may be sent at reasonable intervals thereafter, provided all returns of Product
by ScanSource under this Section 7.3 shall be shipped within 90 days following the effective date
of termination or expiration. ScanSource shall be credited for any Products so returned (or
destroyed) in an amount equal to the original purchase price thereof, less any credits pursuant to
Section 5.6(b) hereof which have been previously paid to ScanSource and shall be first applied to
any uncontested amounts due Supplier. Any remaining balance shall be promptly paid to ScanSource.
Supplier shall bear all freight costs associated with returns of Product to Supplier by ScanSource
under this Section if Supplier is terminating or ScanSource is terminating due to Supplier’s
material breach. ScanSource shall bear all freight costs associated with returns of Product to
Supplier if ScanSource is terminating or Supplier is terminating due to ScanSource’s material
breach. Customized Products or Products not in their original, sealed condition shall not be
eligible for repurchase pursuant to this Section.
7.4 Survival of Terms. Termination or expiration of this Agreement for any 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. The termination or expiration of this Agreement shall not affect any of Supplier’s
warranties, indemnification or obligations relating to returns, co-op advertising payments, credits
or any other matters set forth in this Agreement that should survive termination or expiration in
order to carry out their intended purpose, all of which shall survive the termination or expiration
of this Agreement.
ARTICLE VIII. MISCELLANEOUS
8.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be binding on the
parties and their respective successors and assigns. Neither party shall have the power to assign
this Agreement without the prior written consent of the other party. ScanSource may assign its
rights and obligations hereunder to one or more subsidiary or affiliate corporations without
consent, but ScanSource shall remain liable for ail obligations hereunder. Supplier may assign its
rights and obligations hereunder to one or more subsidiary or affiliate corporations without
consent, but Supplier shall remain liable for all obligations hereunder. In the event either party
denies consent to assignment of this Agreement, the other party shall have the right to terminate
this Agreement under Section 7.1.
8.2 Counterparts. This Agreement may be executed in several counterparts, all of which
taken together shall constitute one single agreement between the parties.
8.3 Headings. The Article and Section headings used in this Agreement are for reference and
convenience only and shall not affect the interpretation of this Agreement.
8.4 Relationship of Parties. ScanSource is performing pursuant to this Agreement only as an
independent contractor. Nothing set forth in this Agreement shall be construed to create the
relationship of principal and agent between ScanSource and Supplier. Neither party shall act or
represent itself, directly or by implication, as an agent of the other party.
8.5 Confidentiality. Each party acknowledges that in the course of performance of its
obligations pursuant to this Agreement, it may obtain certain information specifically marked as
confidential or proprietary. Each party hereby agrees that all such information communicated to it
by the other party, its parent, affiliates, or subsidiaries, 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, accounting or regulatory requirements beyond either party’s
reasonable control. The provisions of this Section shall survive the termination of this Agreement
for any reason.
8.6 Media Releases. Except for any announcement intended solely for internal distribution,
any disclosure required by legal, accounting or regulatory requirements beyond the reasonable
control of either party, and except for catalogs, advertising and marketing materials customarily
used by ScanSource or Supplier 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, must be approved in writing (within 48 hours of submission) by the other
party prior to the release thereof.
8.7 Dispute Resolution. In the event of any disagreement regarding performance 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.
8.8 Compliance with Laws. In supplying the Products pursuant to this Agreement, ScanSource
and Supplier shall comply with the requirements of all applicable laws, ordinances and regulations
of the United States or any state, other country or other governmental entity as may be applicable.
8.9 Notices. Wherever one party is required or permitted to give notice to the other
pursuant to this Agreement, such notice shall be deemed given when delivered in hand, or when sent
by facsimile with receipt acknowledged by the recipient, or when delivered by Fed-ex, UPS or
similar overnight service, or 5 days after mailing by registered or certified mail, return receipt
requested, postage prepaid, and addressed as follows:
In the case of Vendor:
|
In the case of ScanSource: | |
| ScanSource, Inc. | ||
0000 Xxxxxxxx Xxxxxx
|
0 Xxxxx Xxxxx | |
Xxxxxxxxx, XX 00000.
|
Xxxxxxxxxx, XX 00000 | |
Attn: CEO
|
Attn: CEO | |
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.
8.10 Force Majeure. If the performance of this Agreement, or any obligations 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; or any of the parties hereto, 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 efforts to avoid or
remove the causes of non-performance and continues performance hereunder with the utmost dispatch
whenever those causes are removed.
8.11 Severability. Whenever possible, each provision of this Agreement shall 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).
8.12 Waiver. No delay or omission by either party to exercise any right or 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.
8.13 Remedies. All remedies set forth in this Agreement shall be cumulative 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. Any use or disclosure of confidential
information by a party in a manner inconsistent with the provisions of this Agreement may cause
irreparable damage for which remedies other than injunctive relief may be inadequate, and the
disclosing party agrees that in any request to a court of competent jurisdiction for injunctive or
other equitable relief seeking to restrain such use or disclosure, the disclosing party will not maintain that such remedy is not
appropriate under the circumstances. The parties further agree that in the event such equitable
relief is granted in the United States, they will not object to courts in other jurisdictions
granting provisional remedies enforcing such United States judgments.
8.14 Nonexclusive Market and Purchase Rights. It is expressly understood and agreed that
this Agreement does not grant to Supplier or ScanSource an exclusive right to purchase or sell
Products and shall not prevent either party from developing or acquiring other suppliers or
customers.
8.15 Entire Agreement. This Agreement, including any Schedules and documents 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.
8.16 Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to principals of conflicts of laws and
Vendor hereby submits to the exclusive jurisdiction of the federal and state courts situated in
said State and the applicable service of process.
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.
SCANSOURCE
|
ARUBA NETWORKS, INC. | |
/s/ Xxxx Xxxxx
|
/s/ Xxxxxxx Xxxxxxxxx | |
Signature
|
Signature | |
Xxxx Xxxxx
|
Xxxxxxx Xxxxxxxxx | |
Printed or Typed Name
|
Printed or Typed Name | |
Sr. V.P. Merchandising
|
CFO | |
Title
|
Title | |
2 July 2007
|
6/5/07 | |
Date
|
Date |
EXHIBIT A
PRODUCT AND PRICE LIST
PRODUCT AND PRICE LIST
[***]
*** Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Exhibit B
CO-OP PROGRAMS
CO-OP PROGRAMS
[***]
*** Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
EXHIBIT C
FREIGHT POLICY
FREIGHT POLICY
TO: ALL SUPPLIERS
SUBJECT: ROUTING INSTRUCTIONS
SUBJECT: ROUTING INSTRUCTIONS
In order to minimize inbound transportation cost, and to maximize control over transit time,
tracing, and expediting, this routing guide has been issued. These instructions supercede all
previous shipping instructions and are to be retained for ready reference.
For shipments of Catalyst Telecom and Paracon products:
Contact: Xxxxxxx Xxxxxxxx, Receiving Supervisor
Phone: (800) 854-9570 ext. 8187
Fax: (000) 000-0000
Email: xxxxxxx.xxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Phone: (800) 854-9570 ext. 8187
Fax: (000) 000-0000
Email: xxxxxxx.xxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Ship to address:
ScanSource, Inc.
0000 Xxxxx Xxx, Xxx. 000
Xxxxxxx, XX. 00000
Receiving hours: 7:00 am - 2:00 pm
ScanSource, Inc.
0000 Xxxxx Xxx, Xxx. 000
Xxxxxxx, XX. 00000
Receiving hours: 7:00 am - 2:00 pm
For shipments of ScanSource and ScanSource Security products:
Contact: Xxxxxxx Xxxxx, Receiving Manager
Phone: (800) 854-9570 ext. 8111
Fax: (000) 000-0000
Email: xxxxxxx.xxxxx@xxxxxxxxxxxxxxxxxx.xxx
Phone: (800) 854-9570 ext. 8111
Fax: (000) 000-0000
Email: xxxxxxx.xxxxx@xxxxxxxxxxxxxxxxxx.xxx
Ship to address:
ScanSource, Inc.
0000 Xxxxx Xxx
Xxxxxxx, XX. 00000
Receiving hours 7:00 am - 12:00 pm (noon)
ScanSource, Inc.
0000 Xxxxx Xxx
Xxxxxxx, XX. 00000
Receiving hours 7:00 am - 12:00 pm (noon)
Note: A packing slip/manifest must be included with each shipment. It should include:
| a) | A listing of products and quantities shipped |
||
| b) | Purchase order number (this must also show on the xxxx of lading) |
||
| c) | Date shipped |
||
| d) | Name of carrier |
||
| e) | Tracking or pro number |
Please comply with the following instructions when transportation is our responsibility:
| 1. | All freight charges assigned to ScanSource must be shipped “freight collect”. For UPS
shipments ship “xxxx recipient”. |
||
| 2. | Please consolidate all of one day’s shipments on one xxxx of lading. Exceptions will be
charged back. |
| 3. | Do not insure shipments or declare value for carriage. For all shipments valued at $750,000
or more, or for shipments of 7000 lbs. or greater, contact the Traffic Manager prior to
shipping. |
||
| 4. | Pallet weight must be included on all bills of lading for LTL shipments. Each xxxx of lading
must display the total number of cartons in the shipment, i.e. 24 cartons on 1 pallet. Xxxx of
lading must be filled out completely. Please accurately describe products with the appropriate
NMFC code. If you do not have the NMFC information available, ask the carrier to identify it
for you. |
||
| 5. | Indicate our purchase order number and number of boxes on all containers and shipping
documents. |
||
| 6. | All pallets must be standard 40” wide X 48” long four way pallets. Primary fork entry from
the 40” end. |
||
| 7. | Banding must be plastic, no metal. |
||
| 8. | Consolidate all like products on pallets. |
||
| 9. | Stack height on pallets is 48” maximum. |
||
| 10. | Mixed pallets should be labeled “MIXED”. |
All freight bills are audited, and any premium transportation charges incurred because these
instructions have not been followed will be charged back to your account. The charges will be based
on the actual premium paid, with a minimum of $50.00. (This minimum must be imposed to cover
administrative cost involved.)
If pickup service, via the carrier shown below, is not available in your area or if you have
any other questions concerning this guide, please contact the ScanSource Traffic Department at
(000) 000-0000, Xxx Xxxxxxx. Your cooperation in following this program is appreciated.
STANDARD SURFACE TRANSPORTATION
| I. | Shipments, not individual cartons, weighing less than 250 lbs. and meeting the weight and
size restrictions, must be shipped by United Parcel Service. |
||
| II. | Approved motor carriers for all LTL shipments from the States shown below are listed. |
CARRIER SERVICING
FedEx Freight East
Toll free number for pickups (000) 000-0000
Toll free number for pickups (000) 000-0000
-Alabama
-Arkansas
-Georgia
-Illinois
-Indiana
-Kentucky
-Louisiana
-Minnesota
-Mississippi
-Missouri
-Arkansas
-Georgia
-Illinois
-Indiana
-Kentucky
-Louisiana
-Minnesota
-Mississippi
-Missouri
-New Jersey
-North Carolina
-Oklahoma
-South Carolina
-Tennessee
-Texas
-Virginia
-West Virginia
-Wisconsin
-North Carolina
-Oklahoma
-South Carolina
-Tennessee
-Texas
-Virginia
-West Virginia
-Wisconsin
Con-way:
Arizona
California
Colorado
Oregon
Washington
Arizona
California
Colorado
Oregon
Washington
ALL REMAINING STATES
Yellow Freight
Toll free (000) 000-0000
Toll free (000) 000-0000
NOTE
Shipments of capacity loads must be authorized by the TRAFFIC DEPARTMENT. Capacity loads are
defined as shipments which are over 7000 lbs., occupy 750 cubic feet or more and have an average
density of 6 lbs. per cubic foot, or which occupy more than 8 standard pallet locations when loaded
(this can be more than 8 pallets if they double or triple stack).
Xxx Xxxxxxx
Traffic Manager
(901) 362-0421 ext. 8104
Traffic Manager
(901) 362-0421 ext. 8104
Xxxxxx XxXxxxx
Executive Director of Operations
(901) 362-0421 ext. 8103
Executive Director of Operations
(901) 362-0421 ext. 8103
PREMIUM ROUTINGS
ScanSource Purchasing or Traffic Department must authorize use of premium freight (air, special
truck, truckload) in advance. All premium shipments must state the total number of cartons in the
shipment and the correct dimension of each carton.
EXHIBIT D
PRODUCT INFORMATION SUPPORT REQUIREMENTS
PRODUCT INFORMATION SUPPORT REQUIREMENTS
1. A new Product Set Up Form must be fully completed for each Product, update, version change or
new Product introduced by Supplier, which Supplier wishes ScanSource to distribute. The Product Set
Up Form shall be provided to Supplier by ScanSource.
2. Spec Sheets, Original Data Sheets and additional Supplier-provided reference materials must be
completely legible. Materials which are not completely legible will be returned to Supplier and
will not be used.
3. For each Product distributed by ScanSource, Supplier is required to provide the following:
3.1 Spec and Data Sheets:
| (a) | Three (3) original Spec or Data Sheets for the Product and any product information which is
available on CD-ROM. |
||
| (b) | If Supplier is new to ScanSource, Supplier must send five (5) Product family, or company
product offering, brochures |
||
| (c) | ScanSource part numbers must be affixed the Spec Sheets. ScanSource part numbers must also be
affixed to the back sides of Product photographs or any sleeves containing transparencies. |
||
| (d) | If a Spec Sheet refers to multiple Products, all relevant ScanSource part numbers must be
listed on such Spec or Data Sheet. |
||
| (e) | If a ScanSource part number is not available for a Product, Supplier should refer to its own
part number. |
3.2 Logos and Photos:
| (a) | Two Supplier logos scanned at 2400 dpi resolution into EPS or TIFF files. One of the EPS or
TIFF files must contain a black-and-white logo and one of the EPS or TIFF files must contain a
color logo. |
||
| (b) | One (1) approximately 2” x 3” digitized color image of each product in high resolution CMYK
TIFF format ready for output up to 2400 dpi. (Other formats such as native PhotoShop, EPS,
etc. are also acceptable.) Digitized images are preferred, but if they are not available
please send: One (1) color photograph of each product (in 35-mm slide, 2 1/4-inch or 4 X
5-inch transparency format). All photos must be marked with ScanSource SKU number and/or
Manufacturer’s UPC code. ScanSource SKU number and/or Manufacturer UPC code must also be
affixed to the back side of product photos or any sleeves containing transparencies. |
3.3 EMPTY BOXES. Two (2) empty boxes for each of Supplier’s software and/or accessory
Product(s) distributed by ScanSource.
5. PRODUCT PHYSICAL INFORMATION. Supplier agrees to provide ScanSource with the per-unit weight of
each Product (such weight to include packaging) to be distributed by ScanSource, and the cube
dimension of each unit of Product, each Master Carton for each Product (if any), and each
pallet.
EXHIBIT E
Training Support for VAD
Training Support for VAD
Technical Training
Aruba will require a minimum of three (3) ScanSource engineers be trained with in the first sixty
(60) days from the Effective Date to support Aruba/ScanSource launch day. Two (2) engineers will be
members of the pre-sales organization, One (1) engineer will be a Technical Assistance Center (TAC)
(or equivalent) engineer. Aruba will provide seats for these three (3) engineers at Aruba-offered
public training courses. [See xxxx://xxxxxxxxx.xxxxxxxxxxxxx.xxx for a current training schedule.]
Upon release of the Aruba Technical Certification Program, the three (3) ScanSource engineers will
have 60 days to pass the Aruba Certified Mobility Professional (ACMP) written exam and an
additional 90 days to pass the Aruba Certified Mobility Expert (ACMX) practical exam. Distributor
will be responsible for certification expenses (testing fees, travel and expenses).
Aruba will provide up to [***] ([***]) additional instructor-led training courses at ScanSource
facilities over the course of [***] months from the Effective Date for up to [***] ScanSource employees
per course in order to enable ScanSource to provide implementation and support services for the
Products as described in this Exhibit. Sixty (60) days notice to Aruba is required for on-site
training classes. Training may occur any time after this Agreement is signed. Distributor will be
responsible for any travel and living expenses associated with attendance by its employees at such
training. Technical Training for additional Distributor personnel shall be at a [***]% discount off
the prices offered on the Global Price List which are set forth on Exhibit A.
Courseware: 4-day Aruba Technical Training (ArubaOS 3.1) instructor-led course.
Sales & Marketing Training
In order to assist Value Added Distributor in its resale obligations, Aruba shall provide
Distributor one time Aruba Instructor led sales training for Distributor Sales Professionals (only
limited by classroom capacity) at a Distributor designated training location prior to launch event.
Account Executives and System Engineers are required to be able to develop Aruba leads, qualify,
present, demo and quote potential customers. Distributor will be responsible for any travel and
living expenses associated with attendance by its employees at such training. Online training
resources will be provided as made available by Aruba.
Notice of Cancellation of Training
If Distributor, Reseller or End User fails to give Aruba a minimum of ten (10) business days for
Aruba delivered regular classroom training and fifteen (15) business days prior written notice of
cancellation of an Aruba delivered onsite training, Distributor agrees to pay to Aruba a
cancellation fee equal to [***]% of the then-current training list price. If Distributor fails to give
Aruba a minimum of five (5) business days written notice of cancellation for regular classroom
training or an onsite training class, Distributor, Reseller or End User agrees to pay to Aruba a
cancellation fee equal to 100% of the then- current training list price.
*** Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
EXHIBIT F
Distributor Support Services for VAD
(not defined or executed at this time)
Distributor Support Services for VAD
(not defined or executed at this time)
EXHIBIT G
POS Report Format
POS Report Format
reseller enduser SIC code transaction type transaction date partid description
Order Quai
EXHIBIT H
XXXX
XXXX
End-User Software License Agreement (“Agreement”)
IMPORTANT
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS BEFORE INSTALLATION OR USE OF ANY SOFTWARE PROGRAMS
FROM ARUBA NETWORKS, INC. (“ARUBA”). INSTALLATION OR USE OF SUCH SOFTWARE PROGRAMS SHALL BE DEEMED
TO CONFIRM YOUR ACCEPTANCE OF THESE TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS
EXPRESSLY LIMITED TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST PROMPTLY RETURN
ALL SUCH SOFTWARE AND HARDWARE PRODUCTS TO ARUBA (OR IF YOU PURCHASED SUCH PRODUCTS FROM A
RESELLER, THE RESELLER FROM WHICH YOU PURCHASED SUCH PRODUCTS) AND ANY FEES YOU HAVE PAID FOR SUCH
PRODUCTS WILL BE REFUNDED.
LICENSE
Subject to your full compliance with all the terms and restrictions set forth in this agreement
(“Agreement”), Aruba grants you a non-exclusive, non-transferable (except as expressly permitted
below), non-sublicensable license to use the software programs (“Programs”) delivered to you solely
in connection with the use of Aruba’s hardware products.
PROPRIETARY RIGHTS
Aruba and its suppliers shall at all times retain title, all ownership rights, and all intellectual
property rights in and to the Programs. The Programs in source code form remain a confidential
trade secret of Aruba and its suppliers. The Programs are protected by the copyright and other
intellectual property laws of the United States and international treaties. You acknowledge that,
in the course of using the Programs, you may obtain or learn information relating to the Programs,
which may include, without limitation, information relating to the performance, reliability or
stability of the Programs, operation of the Programs, know-how, techniques, processes, ideas,
algorithms, and software design and architecture (“Proprietary Information”). As between the
parties, such Proprietary Information shall belong solely to Aruba. During and after the term of
this Agreement, you shall hold in confidence and protect, and shall not use (except as expressly
authorized by this Agreement) or disclose, Proprietary Information to any third party.
RESTRICTIONS ON USE AND TRANSFER
A. The Programs may be used solely in conjunction with Aruba’s hardware products and may be copied
solely for installation and back-up purposes in support of your use of such hardware products. You
may not modify the Programs in any manner without the prior written approval of Aruba. You may
physically transfer the Programs and this Agreement to another party only if (i) all related
hardware products are transferred along with the Programs, (ii) the other party accepts the terms
and restrictions of this Agreement, (iii) all copies of Programs and related documentation that are
not transferred to the other party are destroyed or returned to Aruba, and (iv) you comply with all
applicable laws including any import/export control regulations.
B. You shall not (and you shall not permit others to), directly or indirectly, modify, translate,
decompile, disassemble, or reverse engineer the Programs (except to the extent applicable laws
specifically prohibit such restriction) or any copy, in whole or in part, or otherwise attempt to
discover the source code or underlying ideas or algorithms of the Programs; copy (except for the
purposes set forth above), rent, lease, distribute, or otherwise transfer rights to the Programs;
or remove any proprietary notices or labels on the Programs.
C. You shall not disclose any Proprietary Information, including any information relating to the
performance or operation of the Programs (including any benchmarking or other testing results) or
to any third party without the express prior written consent of Aruba.
LIMITED WARRANTY; WARRANTY DISCLAIMER
Aruba warrants to you (and only you) that any media on which the Programs are recorded will be free
from defects in materials and workmanship under normal use for a period of ninety (90) days from
the date the Programs are delivered to you. If a defect in any such media should occur during this
90-day period, the media may be returned to Aruba (or if you received such Programs from a
reseller, to such reseller) and Aruba or the reseller, as applicable, will replace the media
without charge to you. Aruba shall have no responsibility to replace media if the failure of media
results from accident, abuse or misuse of the media.
ARUBA AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAMS WILL MEET YOUR
REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT FOR
THE EXPRESS WARRANTY ABOVE, THE PROGRAMS ARE PROVIDED TO YOU WITH NO WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND
YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY
YOUR EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF ARUBA AND ITS SUPPLIERS RELATED TO THE PROGRAMS
SHALL BE EXPRESSLY LIMITED TO REPLACEMENT OF MEDIA AS PROVIDED ABOVE. IN NO EVENT WILL ARUBA OR
ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE PROGRAMS BE
LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST
PROFITS OR LOST DATA, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERM
This Agreement is effective until terminated. You may terminate this Agreement at any time by
destroying all copies of the Programs and related documentation. This Agreement will terminate
automatically if you fail to comply with any term or condition of this Agreement, including any
attempt to transfer a copy of the Programs to another party except as provided in this Agreement.
You agree that upon such termination, you will destroy all copies of the Programs and related
documentation.
U.S. GOVERNMENT RESTRICTED RIGHTS
If you are acquiring the Programs on behalf of the U.S. Government, the following provisions apply:
(i) if the Programs are supplied to the Department of Defense or any related agency of service, the
Programs are subject to “restricted rights” as that term is defined in Defense Federal Acquisition
Regulations (“DFAR”) in Section 252.227-7013(c)(1); and (ii) if the Programs are supplied
to any other unit or agency of the United States Government, the Programs are considered
“restricted computer software” and the Government’s rights in the Programs are set forth in the
Federal Acquisition Regulations (“FAR”) in Section 52.227-19(c)(2). Use, duplication or disclosure
by the Government is subject to the restrictions set forth in such sections. You represent that you
are not acquiring the Programs on behalf of a government other than the U.S. Government.
You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms
and restrictions. You further agree that this license is the complete and exclusive statement of
your agreement with Aruba and supersedes any proposal or prior agreement, oral or written, and any
other communications relating to the subject matter of this license. This Agreement may only be
modified in writing. Any waivers and amendments of this Agreement or any of its terms shall be
effective only if made by non-preprinted agreements clearly understood by both parties to be an
amendment or waiver. This Agreement shall be governed by and construed under the laws of the state
of California, USA as if made and entered into in that state by two residents thereof and without
regard to the United Nations Convention on Contracts for the International Sale of Goods.
Except as provided below, all disputes arising from or relating to the subject matter of this
Agreement shall be resolved by and you hereby consent to binding arbitration conducted in the
English language in San Francisco, California, USA pursuant to California law and the rules of the
Judicial Arbitration and Mediation Service (JAMS.) Judgment upon any award so rendered may be
entered in any court having jurisdiction or application may be made to such court for judicial
acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the
foregoing, each party shall have the right at any time to seek injunctive or other forms of
equitable relief from any court of competent jurisdiction. If any provision of this Agreement is
held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be limited or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.
