AUTHORIZED APPLE WHOLESALER U.S. SALES AGREEMENT
This Agreement is made between Apple Computer, Inc., a California corporation
with its principal place of business located at 0 Xxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, "Apple," and MICROAGE COMPUTER CENTERS, INCORPORATED, a
(corporation) (partnership) (sole proprietorship) organized under the laws of
Delaware - with its principal place of business located at 0000 X. Xxxxxxxx Xxx,
Xxxxx, XX 00000, "Wholesaler."
DEFINITIONS
As used in this Agreement, the following terms have the meanings specified
below:
A. "Agreement" - this Authorized Apple Wholesaler U.S. Sales Agreement and all
documents incorporated herein by reference.
B. "Apple Reseller Program Attachment(s)" - the then-current attachment(s) to
this Agreement which describe specific Apple reseller categories and which
include additional terms and conditions with which Wholesaler must comply when
selling to specific reseller categories. As of the date of this Agreement, those
reseller categories include: Authorized Apple Dealer, Authorized Apple Retailer,
Authorized Apple Indirect Value Added Reseller, Authorized Apple Direct Value
Added Reseller, Authorized Apple Electronic Reseller, and Authorized Apple
Catalog Reseller.
C. "Authorized Product(s)" - those Products that Wholesaler is authorized by
this Agreement to resell to Authorized Resellers. Authorized Products may vary
by Authorized Reseller category and all products may not be available to all
categories.
D. "Authorized Reseller(s)"- those resellers which (1) have signed a U.S. sales
agreement with Apple, (2) are authorized by Apple to resell Products to end-user
purchasers in the U.S and/or as authorized by Apple in writing, and (3) meet all
requirements of at least one specific reseller category as described by Apple in
the attached Apple Reseller Program Attachments, as modified by Apple from time
to time.
E. "Policies and Practices Manual" - Apple's then-current policies, programs and
procedures relating to doing business with Apple and the sale of Products which
Wholesaler must follow.
F. "Price List" - Apple's then-current Authorized Apple Wholesaler Confidential
Price List. Apple reserves the right to remove Products from the Price List, to
limit those Products available to Wholesaler and to require Product specific
authorizations.
G. "Product(s)" - hardware, software, support, training, and related products,
including items manufactured, distributed or licensed ("sold") by Apple and
items manufactured, distributed or licensed by others that may be sold by Apple
to Wholesaler for resale to Authorized Resellers and as described in this
Agreement.
1. APPOINTMENT
A. Apple appoints Wholesaler as an Authorized Apple Wholesaler and Wholesaler
accepts such appointment. The appointment is limited, non-exclusive and
effective only so long as Wholesaler complies with all of the terms and
conditions of this Agreement. This appointment allows Wholesaler to perform the
functions described herein and represent to the public that Wholesaler has been
authorized by Apple to do so.
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B. Wholesaler is an independent contractor, has no power or authority to bind
Apple and is contracting for certain goods and services. Nothing in this
Agreement shall be construed as creating any relationship such as
employer-employee, principal-agent or franchisor-franchisee.
C. The appointment is based upon the existing ownership of Wholesaler and is
therefore personal in nature. Consequently, Wholesaler may not assign or
transfer any or all of its rights or obligations under this Agreement without
express written approval from Apple. if a person or entity that currently owns
less than 25% of the shares entitled to vote for the Board of Directors of
Wholesaler obtains ownership of more than 50% of such voting shares, this will
be considered an assignment pursuant to this Section.
2. SCOPE OF AUTHORIZATION
A. Wholesaler shall only resell Products as follows:
(1) as described in this Agreement, Apple's Policies and Practices Manual, and
the terms and conditions of the applicable Apple Reseller Program Attachment(s);
(2) to Authorized Resellers specifically identified by Apple and located within
the United States, for resale to end-user purchasers within the United States;
and
(3) as specifically approved by Apple, in writing.
B. Wholesaler understands and agrees that Wholesaler shall not sell all Product
to all Authorized Resellers. Wholesaler agrees not to sell specific Products
identified by Apple to Authorized Resellers in specific categories as described
in the Price List.
C. Wholesaler shall not sell Product(s) as follows unless specifically
authorized to do so by a written amendment to this Agreement:
(1) for export, either directly or indirectly;
(2) for sale or resale to public or private non-profit educational institutions,
including without limitation, those portions of state contracts concerning
purchases for educational institutions; and
(3) directly to end-user purchasers.
D. Wholesaler shall unilaterally determine its own resale prices. Although Apple
may provide suggested resale prices, those are suggestions only and Wholesaler
may freely choose to charge different prices. Wholesaler understands that
neither Apple or any employee or representative of Apple may give any special
treatment (favorable or unfavorable) to Wholesaler as a result of its selection
of prices. Should anyone attempt to do so, Wholesaler will promptly report the
matter to Apple in writing.
3. WHOLESALER'S OBLIGATIONS
A. PRODUCT PROMOTION AND SALES
Wholesaler shall vigorously promote and sell Products to Authorized Resellers,
maintaining a high level of customer satisfaction. Wholesaler agrees and
represents that it shall accomplish at least the following:
(1) comply with this Agreement, Apple's Policies and Practices Manual, and other
programs and policies made available to Wholesaler from time to time;
(2) accept and fulfill orders from Authorized Resellers on a non-discriminatory,
equitable basis. Wholesaler may refuse orders from Authorized Resellers based on
credit or other legitimate concerns, but shall otherwise accept and fulfill all
orders;
(3) maintain a sufficient level of Products in inventory to provide timely fill
rates for Product orders placed by Authorized Resellers; and
(4) utilize the promotional programs or funds Apple makes available from time to
time in accordance with the terms established by Apple.
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B. SUPPORT
Wholesaler will provide the following minimum support to Authorized Resellers:
(1) provide satisfactory technical information and support for the Products in a
timely manner. Technical support shall include but not be limited to information
and training on Product configurations, compatibility among Products, and
general Product information; and
(2) provide notices, marketing and program information, and other materials
provided by Apple which Apple requires or requests that Wholesaler distribute to
Authorized Resellers.
C. GENERAL
Wholesaler agrees to conduct business in a manner that reflects favorably at all
times on the Products and the good name, goodwill and reputation of Apple, and
to:
(1) not engage in any deceptive, illegal, misleading or unethical activity that
is or might be detrimental to Apple, any Product or support activity described
herein, or the public;
(2) accurately describe all Product specifications, features, and warranties in
conformance with the literature distributed by Apple;
(3) distribute the Products with all packaging, warranties, disclaimers and
license agreements intact as shipped from Apple;
(4) make no changes to or reconfiguration of the Product(s) in any way, without
Apple's prior written permission;
(5) use reasonable efforts to notify Apple if Wholesaler believes that an
Authorized Reseller may not be complying with the Authorized Reseller's U.S.
sales agreement with Apple.
(6) immediately cease selling Product to any reseller which is no longer an
Authorized Reseller. Apple may take action against Wholesaler, which may include
but is not limited to suspension or termination of this Agreement, if Wholesaler
subsequently ships Product to any such reseller;
(7) offer or facilitate reasonable financing terms to any Authorized Reseller.
For purposes of this provision, "reasonable financing terms" includes, but is
not limited to, offering leasing programs through a reputable, third-party
leasing company, and
(8) at all times comply with all applicable laws when conducting business under
or related to this Agreement.
4. LIMITED WARRANTY TO WHOLESALER
A. Apple warrants to Wholesaler that any Product shipped by Apple shall conform
to the general description of that Product on the Price List. This warranty is
nontransferable.
Wholesaler's remedy for any breach by Apple of the foregoing warranty shall be,
at Apple's option, a credit to the Wholesaler's account upon return to Apple of
the non-conforming unit, or replacement of the nonconforming unit with a
conforming unit or a Product which is functionally equivalent to the conforming
unit. Wholesaler shall have SIX (6) MONTHS from the original invoice date to
Wholesaler to notify Apple of a suspected breach of the above warranty and
receive a return authorization or the above warranty shall expire.
B. Wholesaler-owned Products used for Wholesaler's internal use are covered by
Apple's standard Limited Warranty; coverage shall commence on the date
Wholesaler first uses the Product. if Wholesaler does not maintain records
indicating the date of first use, the coverage period will start from
Wholesaler's date of purchase.
C. For Products sold by Apple to Wholesaler, Apple's standard Limited Warranty
shall flow to the end-user purchaser.
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D. APPLE MAKES NO OTHER WARRANTY TO WHOLESALER, EITHER EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PRODUCTS PURCHASED BY WHOLESALER HEREUNDER. APPLE SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
5. INSPECTIONS, RECORDS, AND REPORTING
A. Wholesaler will provide accurate sales, inventory and other reports to Apple
on a regular basis as provided in the Policies and Practices Manual. The
frequency, content and format of these reports shall be prescribed by Apple.
Failure to submit the reports may result in action being taken by Apple; such
action can include, but will not be limited to, termination of this Agreement.
B. In addition to the reports described in Section 5A, Wholesaler shall provide
Apple with information and/or documentation relating to the activities described
by this Agreement that Apple may reasonably request from time to time.
C. Apple shall have the right to inspect Wholesaler's operations at any time
during regular business hours to verify Wholesaler's compliance with the terms
and conditions of this Agreement and Apple's policies and programs.
D. Wholesaler shall maintain its records, contracts, and accounts relating to
the sale of Products for at least FIVE (5) YEARS. A duplicate copy of all such
records, contracts and accounts shall be stored at an alternate location.
E. Wholesaler shall promptly notify Apple in writing of any suspected Product
defect or safety problem.
F. Wholesaler shall notify Apple in writing no less than TEN (10) DAYS prior to
any material change in the management or control of Wholesaler, any new
affiliation or association, or transfer of any substantial part of Wholesaler's
business. Wholesaler shall also notify Apple in writing no less than TEN (10)
DAYS prior to any acquisition by Wholesaler in whole or in part of a third party
engaged in the sale of Products.
6. ORDERING, SHIPPING, PAYMENT
A. Wholesaler may submit orders for Products. in addition to Products ordered
for resale, Wholesaler may order Products in reasonable quantities for
Wholesaler's internal use. All orders shall be subject to acceptance by Apple.
The price shall be Apple's price on the then-current Price List on the date of
Apple's acceptance. The prices set forth in Apple's then-current Price List
include freight (using an Apple selected carrier), insurance and routing to
Wholesaler. Wholesaler agrees to provide Apple with appropriate resale
certificate numbers and other documentation satisfactory to the applicable
taxing authorities to substantiate any claim of exemption from any taxes, duties
or imposts. Any applicable sales or use taxes, duties and other imposts due on
account of purchase(s) hereunder shall be paid by Wholesaler.
B. Apple shall use reasonable efforts to ship according to Wholesaler's request,
but shall not be liable for any failure to do so or for any failure to meet a
proposed delivery date. Unless Wholesaler clearly advises Apple to the contrary
in writing, Apple may make partial shipments on account of Wholesaler's orders,
to be separately invoiced and paid for when due. Apple reserves the right to
cancel any orders placed by Wholesaler and accepted by Apple, or to refuse or
delay shipment thereof without liability of any kind to Wholesaler or to any
other person or entity. Apple will notify Wholesaler upon cancellation of any
order. Title to all shipped Product shall pass to Wholesaler at Apple's shipping
location. When
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shipping pursuant to Apple's standard practices, Apple will place tracers, file
claims and replace product lost or damaged in transit.
C. If orders for Product exceed Apple's available inventory, Apple will allocate
its available inventory and make deliveries (including partial shipments) on a
basis Apple deems equitable, in its sole discretion and without liability to
Wholesaler.
D. Wholesaler shall be invoiced upon shipment of Product and, provided
Wholesaler is eligible for credit from Apple, shall pay each invoice no later
than THIRTY (30) DAYS from the date of invoice. Unless otherwise agreed to in
writing, Wholesaler shall provide to Apple annual audited financial statements
within ninety (90) days of Wholesaler's fiscal year end. Apple reserves the
right to change credit terms if Wholesaler's financial status or payment record
so warrants.
7. APPLE PROPRIETARY RIGHTS
A. APPLE TRADEMARK RIGHTS
(1) PERMISSION TO USE
During the term of this Agreement Apple grants to Wholesaler a non-exclusive
non-transferable, revocable, personal right to use Apple trademarks that
specifically refer to Authorized Products or Apple technologies contained within
the Authorized Products; provided, however, that Wholesaler may use only the
following logos: the Apple logo (only in reference to Apple, the Authorized
Products, or with the designation "Authorized Apple Wholesaler"), the Mac O/S
logo, the QuickTirne logo and any other Apple logo for which Apple has
promulgated written guidelines and provided separate written authorization
(collectively the "Marks"), solely in connection with Wholesaler's authorized
promotion of Authorized Products. Wholesaler's use of the Marks will be in
strict compliance with this Agreement and the Xxxx Specifications and Guidelines
provided by Apple, which Wholesaler acknowledges may be changed by Apple from
time to time. in addition, Wholesaler shall be permitted to use other Apple
marks to the extent permitted by fair use under trademark and unfair competition
laws in the jurisdiction where such xxxx(s) are actually being used, and in
accordance with Apple's specifications and requirements for use of Apple
trademarks by third party licensees, resellers and developers. Apple retains all
rights not expressly conveyed to Wholesaler by this Section 7A. Wholesaler
recognizes the great value of the' goodwill associated with the use of the Apple
marks and acknowledges that such goodwill exclusively inures to the benefit of
and belongs to Apple. Wholesaler has no rights of any kind whatsoever with
respect to any Apple marks except for the limited rights provided herein.
(2) LIMITATIONS ON USE OF MARKS Wholesaler agrees not to use the Marks in any
manner that Apple, in its sole judgment, deems to (a) be in poor taste, (b) be
unlawful, (c) have the purpose, object or intent to encourage unlawful activity
by others, or (d) suggest any association with Apple beyond that of an
Authorized Apple Wholesaler. Wholesaler will not use the Marks or any other
Apple xxxx or marks that may be confusingly similar to Apple marks on
promotional merchandise, such as without limitation, shirts, hats, key chains,
mugs or mouse pads, except under a separate Apple merchandise license.
Wholesaler agrees not to use any Apple xxxx as a part of a product name, service
name, company name, electronic address or similar designation. Wholesaler will
not remove any Apple marks from any Products nor shall Wholesaler add any marks
to such products.
B. SOFTWARE RIGHTS
(1) Wholesaler acknowledges that Products often contain not only hardware but
also software. Software may be provided on separate media, such as floppy
diskettes or CD-ROM or may be included within the hardware. Such software is
proprietary, is copyrighted, and may also contain valuable trade secrets and be
protected by patents. Wholesaler shall not separate the software from the
associated
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Product as shipped by Apple, nor shall Wholesaler disassemble, decompile,
reverse engineer, copy, modify, prepare derivative works thereof, or otherwise
change any of the software or its form.
(2) Wholesaler understands that Apple does not sell software. Rather, Wholesaler
is licensed to distribute software that is incorporated in or packaged with
Products only as part of its authorized sale of the associated Products. The end
user of a Product is licensed to use any software contained in such Product,
subject to the terms of the license accompanying the Product, if any, and the
applicable patent, trademark, copyright, and other federal and state
intellectual property laws.
(3) Prior to selling a Product, Wholesaler will make available to purchaser the
applicable end user Software License Agreement. Apple will provide copies of the
applicable Software License Agreements with the Product or upon request.
8. INSURANCE AND INDEMNITIES
A. While this Agreement is in effect, Wholesaler shall keep in force and effect
a sufficient general liability insurance policy, including premises liability,
products, and completed operations, with limits of coverage not less than
$1,000,000 bodily or personal injury and $1,000,000 property damage, or
$1,000,000 combined single limit. Apple shall be named as additional insured for
the scope of this Agreement. Prior to commencement of work under this Agreement,
a certificate of insurance evidencing the above shall be delivered to Apple at
the following address:
Apple Computer, Inc.
Contracts Management
Xxx Xxxxxxxx Xxxx, X/X 00-XX
Xxxxxxxxx, XX 00000.
B. Apple agrees to defend any proceeding or action brought by a third party
against Wholesaler to the extent based on a claim that: (1) the marketing or use
of any Product sold by Apple to Wholesaler infringes any U.S. patent, U.S.
copyright, U.S. trademark or trade secret; or (2) a defective Apple Product
directly caused death or personal injury (provided the Product at issue has not
been altered, modified or otherwise changed). Apple agrees to indemnify
Wholesaler for damages awarded to third parties solely as a result of such
claims. Apple's obligation to so defend and indemnify Wholesaler is contingent
on Wholesaler's compliance with Section 8E below.
C. Wholesaler agrees that, if Apple is obligated to defend any claim arising
under Section 8B(1) above or if Apple requires that Product be returned for any
reason, including but not limited to Product safety reasons, Wholesaler will
promptly stop all promotion and resale of the specific Product and will return
such new, unopened Product in Wholesaler's inventory to Apple upon Apple's
written request. In addition, Wholesaler will take reasonable steps to return to
Apple the specified Product in Authorized Reseller's inventory. At Apple's
option, Apple will either replace Product with the same or functionally
equivalent Product, or Apple will credit Wholesaler's account upon return of the
Product to Apple. Any such credit will be calculated by assuming that the
Product is from Wholesaler's most recent purchase of such item(s) from Apple.
D. Wholesaler agrees to defend any proceeding or action brought by a third party
against Apple to the extent based on a claim arising from the acts or omissions
of Wholesaler, its employees or agents in conduct associated with the offering
for sale or marketing of Products, except acts or omissions expressly required
by Apple's written programs or policies. Wholesaler agrees to indemnify Apple
for any losses, damages, liabilities, costs and reasonable expenses arising from
such acts or omissions. Wholesaler's obligation to so defend and indemnify Apple
is contingent on Apple's compliance with Section 8E below.
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E. Each party shall promptly notify the other party of any claim, demand,
proceeding or suit of which the other party becomes aware which may give rise to
a right of defense or indemnification pursuant to this section ("Claim"). Notice
of any Claim must be provided to the indemnifying party as soon as possible, and
no later than THIRTY (30) DAYS after first learning of such Claim. Notice shall
include an offer to tender the defense of the Claim to the indemnifying party.
The indemnifying party, if it accepts such tender, shall be entitled to take
over sole control of the defense of the Claim. That control shall include the
right to take any and all actions necessary to completely and finally resolve
the Claim by settlement or compromise (in which case the indemnifying party
shall be responsible for the cost of settlement/compromise related to the
Claim). Upon acceptance of tender, the indemnified party shall cooperate with
the indemnifying party with respect to such defense and settlement. In the event
a Claim is settled, both parties agree not to publicize the settlement and will
make every effort to ensure the settlement agreement contains nonadmissions and
nondisclosure provisions.
9. CONFIDENTIALITY
Any information disclosed to Wholesaler by Apple relating to Apple's or a third
party's present or future developments or business, including but not limited to
future product information, business activities, the Price List, terms and
conditions of this Agreement (including any documents incorporated by
reference), and all other amendments and addenda between Wholesaler and Apple
(except such information as is previously known to Wholesaler without an
obligation of confidentiality or is publicly disclosed by Apple either prior or
subsequent to Wholesaler's receipt of such information from Apple), shall be
characterized as confidential information ("Confidential Information").
Wholesaler shall hold such Confidential Information in trust and confidence and
shall not use it except in furtherance of the relationship set forth in this
Agreement, nor publish, disclose, or disseminate it for a period of FIVE (5)
YEARS after receipt thereof by Wholesaler, except as may be authorized by Apple
in writing. Wholesaler shall have no right to prepare any derivative works of
such Confidential information.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL APPLE BE LIABLE TO WHOLESALER FOR INCIDENTAL, CONSEQUENTIAL,
INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, INCLUDING, WITHOUT LIMITATION, LOST
BUSINESS PROFITS FOR ANY MATTER ARISING FROM, OR RELATED TO THIS AGREEMENT.
DIRECT DAMAGES TO WHOLESALER SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED
$100,000 PER INCIDENT.
11. LIMITATION OF REMEDIES
THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL BE WHOLESALER'S SOLE AND
EXCLUSIVE REMEDIES FOR ANY BREACH OF THIS AGREEMENT BY APPLE.
12. TERM AND TERMINATION
A. TERM
Unless terminated earlier as provided herein: (1) the initial term of this
Agreement shall be from its effective date until March 31, 1999; and, (2) unless
either party provides written notice thirty (30) days prior to the expiration
date, the term of this Agreement shall be extended for an additional twelve (12)
month period. Any subsequent renewals or extensions of this Agreement will
require written agreement by both parties. Wholesaler and Apple agree that in no
event shall either party be obligated to renew or extend this Agreement.
B. TERMINATION WITH THIRTY (30) DAYS NOTICE
Either party may terminate this Agreement at will, at any the, with or without
cause, by providing written notice to the other party not less than THIRTY (30)
DAYS before the effective date of such notice.
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C. IMMEDIATE TERMINATION
To the extent permitted by applicable law, Apple may terminate this Agreement
effective immediately and without notice in the event that:
(1) Wholesaler fads to perform any obligation, duty, or responsibility imposed
under this Agreement and such failure or default remains unremedied FIFTEEN (15)
DAYS after written notice thereof;
(2) Wholesaler commits a felony, engages in an unlawful business practice, or
conducts business in any manner prohibited by Sections 2 or 3 of this Agreement;
(3) there is any material change or transfer in the management or control of
Wholesaler, Wholesaler's business operations, or any new affiliation or transfer
of any substantial part of its business;
(4) any conduct or proposed conduct of Wholesaler exposes or threatens to expose
Apple to any liability or obligation, including any federal, state, or local
law; or
(5) Wholesaler fads to maintain sufficient net worth and working capital to
perform its obligations; has a receiver or similar party appointed for its
property; becomes insolvent or makes an assignment for the benefit of creditors;
or ceases to do business in Products.
Without limiting the foregoing in any way, and in lieu of immediate termination
of this Agreement, Apple may take other action(s) for violation of this
Agreement by Wholesaler, as Apple, in its sole discretion, deems appropriate.
Such actions may include, but are not limited to, eliminating or modifying
specific Apple reseller categories to which Wholesaler can sell Authorized
Products and deauthorizing sales to specific Authorized Reseller(s).
D. EFFECT OF NOTICE OF TERMINATION
In the event that notice of termination of this Agreement is given for any
reason, the due date of all Apple invoices shall be accelerated so that they
become due and payable as of the date of notice of termination, even if longer
terms had been provided previously. Apple shall be entitled, in its sole
discretion, to reject all or part of any orders received from Wholesaler after
the date of such notice or to cancel any orders previously accepted. Apple may
restrict Wholesaler's use of any available promotional allowances. Until the
termination date Wholesaler may continue to represent publicly that it is an
authorized Apple Wholesaler, but shall not enter into any commitments requiring
Products after the termination date.
E. EFFECT OF TERMINATION
Upon expiration or termination of this Agreement:
(1) Wholesaler shall submit to Apple within TEN (10) DAYS after such expiration
or termination a list of all Products in Wholesaler's inventory as of the date
of such termination.
Apple, at its option, may purchase from Wholesaler any or all Authorized
Products that are still in their original, unopened containers, in good
condition, at the respective prices paid by Wholesaler for such items. These
prices shall be determined by assuming that the Products are from Wholesaler's
most recent purchase of such items from Apple.
Apple, at its option, may purchase any or all Authorized Products in opened
containers at prices determined by Apple. If the prices offered by Apple are
unacceptable to Wholesaler, Wholesaler may refuse Apple's offer and thereafter
resell such Authorized Product to an Authorized Reseller or Authorized
Wholesaler.
After receipt of any such Authorized Product from Wholesaler, Apple will issue
an appropriate credit to Wholesaler's account, subject to offset for any amounts
due Apple.
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(2) Wholesaler shall immediately cease use of the Apple Marks provided by
Section 7 herein, and otherwise discontinue representing to the public and trade
that it is an Authorized Apple Wholesaler.
(3) All unshipped Product orders will be canceled.
(4) All promotional allowance or other fund accruals shall cease. Wholesaler may
claim against any available balances for any activities approved by Apple and
conducted prior to the date of termination.
(5) Wholesaler shall promptly return to Apple all property of Apple in its
possession, including but not limited to loaned equipment and all documents and
materials of any kind containing Confidential Information.
F. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, ON ACCOUNT OF EXPIRATION OR
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
G. To the extent permitted by applicable law, and in consideration of its
entering into this Agreement, Wholesaler hereby waives and relinquishes any
rights or claims under franchise, dealership, or other statutes, or at common
law, that would or might arise out of a termination of this Agreement by Apple
or refusal by Apple to renew or extend this Agreement.
H. Wholesaler's obligations under Sections 5, 7, 8, 9, 10, 11, 12 and 13 and
their subsections shall survive expiration or termination of this Agreement.
Apple's obligations under Sections 4, 8, 10, 11, 12 and 13 and their subsections
shall survive expiration or termination of this Agreement.
13. GENERAL TERMS
A. GOVERNING LAW
This Agreement and the corresponding relationships of the parties shall be
governed by and construed in accordance with the laws of the State of California
without giving effect to its conflict of law provisions.
B. DISPUTES
(1) Any dispute, resolution, or proceeding ("Actions") with respect to this
Agreement shall take place solely in the County of Santa Xxxxx, State of
California, except those Actions that are brought to collect monies due under
this Agreement may also be brought in the jurisdiction in which the Action
arose. Wholesaler expressly agrees that venue within this district is proper and
voluntarily submits to the jurisdiction of the courts within same.
(2) Any action arising from or related to this Agreement must be brought within
ONE (1) YEAR from the date such action could have first been brought. The
parties expressly agree to this provision notwithstanding any longer period
which may be provided by statute and any such period is expressly waived.
C. NOTICE
Notices and demands of any kind that Wholesaler may be required or desire to
serve upon Apple pursuant to this Agreement shall be served by United States
mail (postage prepaid), or overnight courier to Apple, at
Apple Computer, Inc.
Contracts Management
0 Xxxxxxxx Xxxx, X/X 00-XX
Xxxxxxxxx, XX 00000
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Notices and demands of any kind that Apple may be required or desire to serve
upon Wholesaler pursuant this Agreement shall be served by personal service,
United States mail (postage prepaid), or overnight courier to Wholesaler, at
Wholesaler's address set forth in this Agreement.
With written notice to the other, Apple and Wholesaler may designate in writing
different addresses. All notices or demands by United States mail shall be
deemed given and complete upon mailing.
D. SEVERABILITY
(1) In the event that any provision of this Agreement shall be held by a court
of competent jurisdiction to be invalid or unenforceable, the remaining portions
of this Agreement shall remain in full force and effect 'and be construed so as
to best effectuate the intention of the parties upon execution.
(2) The paragraph headings contained herein are for reference only and shall not
be considered as substantive parts of this Agreement. Use of the singular or
plural form shall include the other.
E. WAIVER
The waiver of any one default shall not waive subsequent defaults of the same or
different kind.
F. SUCCESSORS IN INTEREST
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties, and any permitted successors or assigns.
G. PRECEDENCE
if any conflict exists between this Agreement, Apple's Policies and Practices
Manual, or any Apple Reseller Program Attachment(s), the order of precedence
shall be as follows: this Agreement, Apple's Policies and Practices Manual, and
the applicable Apple Reseller Program Attachment(s), in that order.
14. ENTIRE AGREEMENT This Agreement and all documents referred to or
incorporated herein by reference contain all the agreements, warranties,
understandings, conditions, covenants, and representations made between
Wholesaler and Apple. Neither Apple or Wholesaler shall be liable for any
agreements, warranties, understandings, conditions, covenants, or
representations that are not expressly set forth in this Agreement. Any
different or additional terms or conditions in any purchase order, invoice or
other such document are hereby expressly rejected by Apple and shall have no
force or effect.
This Agreement may only be modified in writing by an instrument signed by an
authorized representative of each party. Apple may unilaterally modify the Price
List and the Policies and Practices Manual effective on the date designated by
Apple. Wholesaler shall have a reasonable period of time to implement changes
which require Wholesaler to materially alter its activities, provided such
period does not exceed THIRTY (30) DAYS from the stated effective date.
The duly authorized representatives of the parties execute this Agreement to be
effective as of the Effective Date set forth below.
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WHOLESALER APPLE COMPUTER, INC.
SIGNATURE: /s/ Xxx Xxxxx SIGNATURE: /s/ Xxxxxx Xxxxxxx
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PRINT NAME: Xxx Xxxxx PRINT NAME: Xxxxxx Xxxxxxx
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TITLE: Group VP - Product Mgmt TITLE: Manager, Bids & Contract
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DATE: 3/30/98 DEPT: Contracts Management
--------------------------------- -----------------------------------
EFFECTIVE DATE: 4/2/98
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11
APPLE RESELLER PROGRAM ATTACHMENT
AUTHORIZED APPLE INDIRECT VALUE ADDED RESELLER
DEFINITIONS
"Authorized Apple Indirect Value Added Reseller" and/or "Indirect VAR" - a value
added reseller that meets Apple's Indirect VAR Criteria and is approved in
writing by Apple.
"Indirect VAR Criteria" - the minimum requirements listed below with which an
Indirect VAR must comply:
+ Develop custom and/or proprietary software and/or hardware for Products; or
provide expertise on Products within a target vertical market;
+ Provide installation, training and on-going support for the value added
solution;
+ Offer end-user purchaser service directly or through an Apple authorized
service organization;
+ Purchase at least the minimum quantity of Apple Product in the appropriate
time period as established by Apple; and
+ Have and comply with the then-current Indirect Value Added Reseller U.S. Sales
Agreement in effect between Apple and Indirect VAR.
WHOLESALER'S OBLIGATIONS
Wholesaler agrees to vigorously and aggressively promote and recruit Indirect
Value Added Resellers ("Indirect VARs") that can or will specialize in providing
Apple based technology solutions and satisfy Apple's Indirect VAR criteria. Such
promotion and recruitment will include, but is not limited to, providing
appropriate Apple information and documentation to the prospective Indirect VAR.
Wholesaler is not authorized to approve or authorize any prospective Indirect
VAR on behalf of Apple.
12
APPLE RESELLER PROGRAM ATTACHMENT
AUTHORIZED APPLE DEALER
DEFINITIONS
"Authorized Apple Dealer" and/or "Dealer" - a reseller that meets Apple's Dealer
Criteria and is approved in writing by Apple.
"Dealer Criteria' - the minimum requirements listed below with which a Dealer
must comply:
+ Develop and execute solution-oriented activities that feature Products and
target business customers;
+ Use a consultative sales approach and provide pre-sale and post-sale support
to customers through "face-to-face" contact at customer site or at dealer
location;
+ Customize hardware, software, and networks to meet customer needs;
+ Carry an adequate number of demo units, including monitors and printers, for
each of the product lines Dealer is authorized to carry;
+ Operate a walk-in storefront location or a non-storefront showroom. Maintain
store hours that are convenient for business customers;
+ Be responsible for demand generation and fulfillment in local markets;
+ Perform or facilitate specific product repairs according to the Apple
Authorized Service Provider (AASP) Program; and
+ Have and comply with the then-current Authorized Apple Dealer U.S. Sales
Agreement in effect between Apple and Dealer.
13
APPLE RESELLER PROGRAM ATTACHMENT
AUTHORIZED APPLE RETAILER
DEFINITIONS
"Authorized Apple Retailer" and/or "Retailer" - a reseller that meets Apple's
Retailer Criteria and is approved in writing by Apple.
"Retailer Criteria" - the minimum requirements listed below with which a
Retailer must comply:
+ Operate a walk-in storefront location which is open during retail store hours,
including evenings and weekends, for a minimum of six days per week;
+ Offer a broad set of computer products that target home and small-business
customers;
+ Maintain adequate on-hand inventory of retail products to satisfy immediate
delivery or "cash and carry" transactions;
+ Provide customer assistance with pre-sale and post-sale support of Products;
+ Support customers with basic product information regarding Products, and
direct them to the Apple Customer Service Support he or to an Apple Authorized
Service Provider (AASP) when necessary; and
+ Have and comply with the then-current Authorized Apple Retailer Sales
Agreement in effect between Apple and Retailer.
14
APPLE RESELLER PROGRAM ATTACHMENT
AUTHORIZED APPLE DIRECT VALUE ADDED RESELLER
DEFINITIONS
"Authorized Apple Direct Value Added Reseller" and/or "Direct VAR" - a value
added reseller that meets Apple's Direct VAR Criteria and is approved in writing
by Apple.
"Direct VAR Criteria" - the minimum requirements listed below with which a
Direct VAR must comply:
+ Develop custom and/or proprietary software and/or hardware for Apple products;
+r provide demonstrated integration expertise on Apple products within a target
vertical market as determined by Apple in its sole discretion;
+ Provide installation, training and on-going support for the value added
solution;
+ Offer end-user service directly as an Apple Authorized Service Provider; and
+ Purchase at least the minimum quantity of Apple Product in the appropriate
time period as established by Apple; and
+ Have and comply with the then-current Direct Value Added Reseller U.S. Sales
Agreement in effect between Apple and Direct VAR.
15
APPLE RESELLER PROGRAM ATTACHMENT
AUTHORIZED APPLE CATALOG RESELLER
DEFINITIONS
"Authorized Apple Catalog Reseller" and/or "Catalog Reseller" - a reseller that
meets Apple's Catalog Reseller Criteria and is approved in writing by Apple.
"Catalog Reseller Criteria" - the minimum requirements listed below with which a
Catalog Reseller must comply:
+ Publish and nationally or regionally distribute a catalog at least quarterly;
+ Produce a high quality catalog in which four-color photographs of Apple
Products are prominently displayed and that recreates the experience a customer
might have in a storefront location or face-to-face interaction;
+ Maintain 7 day/24 hour customer sales and support call center;
+ Allow purchasers to order Apple products via a toll-free telephone number,
seven days a week, 24 hours a day;
+ Maintain direct response systems infrastructure to support telesales and
reporting requirements and requests;
+ Sell at least $10 million in Apple Product annually via the catalog channel;
+ Establish service provider capabilities that meet the needs of all customers
and that fulfill the terms of the applicable service provider agreement between
Apple and Catalog Reseller; and
+ Have and comply with the then-current Authorized Apple Catalog Reseller U.S.
Sales Agreement in effect between Apple and Catalog Reseller.
16
APPLE RESELLER PROGRAM ATTACHMENT
AUTHORIZED APPLE ELECTRONIC RESELLER
DEFINITIONS
"Authorized Apple Electronic Reseller" and/or "Electronic Reseller" - a reseller
that meets Apple's Electronic Reseller Criteria and is approved in writing by
Apple.
"Electronic Reseller Criteria" - the minimum requirements listed below with
which an Electronic Reseller must comply:
+ Operate one or more electronic commerce Web sites (electronic stores) on the
Worldwide Web which recreate the 'in-store' customer experience;
+ Maintain secure, reliable product fulfillment infrastructure;
+ Sell a minimum of $10 million per year in total Apple products through
electronic store(s), paper catalog(s), and/or storefronts/non-storefronts (based
+n purchases from Apple and Apple-authorized wholesalers);
+ Report (for resellers purchasing product directly from Apple) weekly
sell-through and inventory via Electronic Data Interchange {EDI});
+ Offer at a minimum 6-day, 12-hour customer sales support via telephone and/or
Internet phone/chat/e-mail real-time response;
+ Maintain MIS infrastructure to support Web sales and reporting requirements
via a suite of Electronic Commerce applications;
+ Maintain adequate, knowledgeable support infrastructure for end users and
Apple employees;
+ Perform or facilitate specific product repairs in accordance with the terms
and conditions set forth in the Apple Authorized Service Provider (AASP) Program
+n all products the Electronic Resellers are authorized to sell; and
+ Have and comply with the then-current Authorized Apple Electronic Reseller
U.S. Sales Agreement in effect between Apple and Electronic Reseller.
17
