EXHIBIT 10.8
Confidential treatment requested
Confidential portions indicated by "[***]" have been omitted and filed
separately with the Securities and Exchange Commission.
[GRAPHIC OMITTED]
Lip XXXXXX U.S.A., INC.
RE-SELLER AGREEMENT
This Agreement is between (RE-SELLER) TASQ TECHNOLOGY, INC. with an office at
000 XXXXX XX., XXXXXXX, XX 00000 and Xxxxxx USA, a New York corporation, with
its principal piece of business at 00 Xxxxxx Xx., Xxxxxxx, XX 00000 and is
effective on this 26 day of Nov 1999 (Effective Date).
PURPOSE:
Xxxxxx manufactures and distributes products listed below in the quantity and
pricing schedule which RE-SELLER wants to purchase and re-sell. Xxxxxx is
willing to sell these products to the RE-SELLER under the terms and conditions
of this agreement.
TERMS OF AGREEMENT:
This Agreement shall take effect on the above noted Effective Date. This
Agreement shall have a term of one (1) year, unless terminated at an earlier
date in accordance with the terms of this Agreement.
QUANTITY AND PRICE:
The RE-SELLER shall purchase the products at the pricing schedule listed
below. The below pricing schedule is based on the following deliveries:
TO BE SCHEDULED
--------------------------------------------------------------------------------------------------------------
Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Month 7
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Month 8 Month 9 Month 10 Month 11 Month 12
--------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Model
Name
------------------------------------------------------------------------------------------------
Annual
Quantity
------------------------------------------------------------------------------------------------
Pricing
------------------------------------------------------------------------------------------------
These prices presume minimum annual commitment based on a blanket purchase order
submitted by the RE-SELLER.
DELIVERY, TITLE, AND RISK OF LOSS:
Xxxxxx will ship products under this agreement by RE-SELLER to RE-SELLER or to a
location specified by RE-SELLER, FOB Syosset, New York. Xxxxxx will arrange and
pay for shipping as designated by RE-SELLER and xxxx RE-SELLER for the cost.
Title and risk of loss and damage shall pass from Xxxxxx to RE-SELLER upon
receipt at TASQ of products to the RE-SELLER. All purchase orders are subject to
a written approval by Xxxxxx.
a. If a product is damage in transit, the RE-SELLER shall within
ninety-six (96) hours after receipt of the product give written notice of
the damage to Xxxxxx, at its principal office, to substantiate a formal
claim, when and if presented.
b: If the quantity of products received by the RE-SELLER is less than the
quantity shown on the sales order, the RE-SELLER shall within 7 days after
receipt of the products give written notice of the shortage to Xxxxxx to
substantiate a formal claim, when and if presented.
c. RE-SELLER shall be responsible for inspection of the products
immediately upon receipt. All such inspections shall be conclusive with
respect to the absence of defects and imperfections in the products.
Failure of RE-SELLER to notify Xxxxxx, in writing, of any defects and
imperfections within fifteen (15) days of receipt of the products shall
be an immediate and automatic release of any and all claims of RE-SELLER.
Any product claimed by the RE-SELLER to be defective shall be returned to
Xxxxxx only upon express written authorization by Xxxxxx. The RE-SELLER
agrees to comply with Xxxxxx'x instructions with respect to disposition
of the product.
TAXES:
RE-SELLER shall be responsible and pay all federal, state, sales, use, excise or
similar taxes, duties, assessments or charges assessed or levied against the
products or these transactions.
TERMS OF PAYMENT:
Invoices may be sent by Lipmen no earlier than the date of shipment of products
listed in such invoice. Payment shall be made in full thirty (30) days from the
date of the invoice. If Xxxxxx decides at its own discretion not to extend
credit terms to RE-SELLER, then RE-SELLER must pay upon delivery of product(s).
A service charge of 1.5% per month will be imposed on accounts past due unless
applicable laws require a lesser charge. If an account is turned over for
collection, RE-SELLER shall pay a reasonable attorney's fee or collection fee in
addition to any accrued interest.
WARRANTIES AND LIMITATION OF LIABILITY:
x. Xxxxxx warrants all its products to be free from defects in material and
workmanship for a period of one year from the date of shipment. Xxxxxx'x
obligations under this warranty shall be limited to the repair or exchange
or giving credit for, at Xxxxxx'x option, any product which may thus prove
defective in accordance with evidence satisfactory to Xxxxxx. Any repair or
replacement of products by Xxxxxx shall not extend the original warranty
period.
b. This warranty shall not apply to any product which has been subject to
accident, negligence, unauthorized alteration or repair, abuse or misuse,
or unusual stress.
x. Xxxxxx expressly disclaims all other warranties, including but not
limited to any warranties or merchantability or fitness for a particular
purpose.
x. XXXXXX SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR LOSS, DAMAGE, OR
EXPENSE, INCLUDING LOSS OF USE, PROFITS, REVENUE, OR GOODWILL, DIRECTLY OR
INDIRECTLY ARISING FROM RESELLER'S USE OR INABILITY TO USE THE PRODUCTS, OR
FOR LOSS OR DESTRUCTION OF OTHER PROPERTY OR FROM ANY OTHER CAUSE, EVEN IF
XXXXXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
x. Xxxxxx'x liability shall in no event exceed an amount equivalent to the
purchase price paid by RE-SELLER.
TRADEMARKS AND TRADENAMES:
RE-SELLER is authorized to use Xxxxxx'x trademarks and tradenames in connection
with RE-SELLER's sale, advertisement and promotion of Xxxxxx'x products and
may not place its own trademarks and tradenames on the products. RE-SELLER
shall be required to use Xxxxxx'x trademarks and tradenames and to acknowledge
to its customers that Xxxxxx manufactures the products. RE-SELLER acknowledges
that Xxxxxx'x trademark and tradenames are the exclusive property of Xxxxxx,
and nothing in this Agreement shall give the RE-SELLER any interest in the
names, except the right to use them in connection with the sale of the products.
Upon termination of this Agreement, for whatever reason, RE-SELLER shall
abandon at once all use of the names, except as necessary to allow the RE-SELLER
to sell off its remaining inventory.
FORCE MAJEURE:
In addition to any excuse provided by applicable law, Xxxxxx shall be excused
from liability for non-delivery or delay in delivery arising from any event
beyond Lipmen's control, whether or not forseeable by either party, including
but not limited to, labor disturbance, war, acts of terrorism, fire,
governmental act or regulation, or any other causes beyond Xxxxxx'x control.
If delivery is delayed for more than ninety (90) days for any of the above
reasons, RE-SELLER shall have the option of cancelling the order by a written
notice to Xxxxxx at its principle office.
DEFAULT AND TERMINATION:
If either party defaults in performance of any material obligation under this
Agreement and such default is not cured within thirty (30) days after receipt
of Written Notice from the non-defaulting party, the non-defaulting party
shall have the right to immediately terminate this Agreement by Notice to
the defaulting party. If any of RE-SELLER's payments to Xxxxxx are not promptly
made when due, RE-SELLER shall be in default hereunder and all unpaid amounts
shall become immediately due and payable. Any default by RE-SELLER shall also
constitute a basis for cancellation or postponement of delivery by Xxxxxx of
any order placed by RE-SELLER even if such order has already been approved by
Xxxxxx.
PERSONAL GUARANTY:
[ ]
ASSIGNMENT:
Neither party may assign any of the rights, interests or duties under this
Agreement without the prior written consent of the other party, which
consent shall not be unreasonably withheld.
APPLICABLE LAW AND VENUE:
All claims and disputes arising under and in connection with this agreement
shall be construed and determined pursuant to the laws of the State of New
York, and the parties agree to submit to the jurisdiction of the Courts
of New York City, State of New York, which shall have the exclusive
jurisdiction with respect to any claim or dispute arising under and in
connection with this agreement. The parties expressly waive trial by jury.
In the event that any provision of this sale order is held invalid by
count of competant jurisdiction, the remaining provision shall nonetheless be
enforceable according to their terms.
CANCELLATION:
An order placed by RE-SELLER and accepted by Xxxxxx may not thereafter be
cancelled by RE-SELLER without Xxxxxx'x written consent, and such consent may
require indemnification for any loss suffered by Xxxxxx.
WAIVER:
The forbearance or failure of Xxxxxx to enforce any of the terms and conditions
hereunder or to exercise any right accruing from any default of RE-SELLER shall
not affect or impair Xxxxxx'x rights in the event such default continues or in
the event of any subsequent default of RE-SELLER and such forbearance or
failure shall not constitute a waiver of other future defaults of RE-SELLER.
NOTICES:
Any notice shall be deemed to be delivered to the other party within three
business days if delivered by certified or registered mail, return receipt
requested, to the recipient's address as stated above or to such other address
as requested by either party by notice delivered in accordance with this
provision.
ENTIRE AGREEMENT:
This Agreement, together with any attached amendments, constitutes the complete
and final agreement between the parties with respect to the subject matter of
this Agreement. This Agreement supercedes all prior discussions and writing with
respect thereto. No agreement purporting to modify, add to, terminate, waive or
change any term or condition of this agreement shall be binding unless it is in
writing and signed by authorized representatives of both parties.
RE-SELLER warrants that the below signer can legally sign on behalf of the
RESELLER:
RESELLER XXXXXX USA, INC
BY: /s/ Xxxxx Xxxxxxxx BY: /s/ Mony Zenou
------------------------------------- -----------------------------
Title: CFO Title: president
---------------------------------- --------------------------
Date: 1/15/00 Date: 1/17/00
---------------------------------- ---------------------------
Personal Guarantor:
Name: N/A
-------------------------------------
Signature:
--------------------------------------------
Address:
---------------------------------------------
Telephone:
--------------------------------
ADDENDUM NO. 4 TO
XXXXXX U.S.A. RESELLER AGREEMENT
This Addendum No. 4 ("Addendum") dated December 18, 2002 (the "Effective
Date") to amend the Xxxxxx U.S.A., Inc. Reseller Agreemnt (the "Agreement")
entered into between Xxxxxx U.S.A., Inc, a New York corporation, with offices at
00 Xxxxxx Xxxxx, Xxxxxxx, XX 11791), or its assignees ("Xxxxxx") and TASQ
Technology, Inc. ("Distributor"). This Addendum is incorporated into and made
part of the Agreement, which shall continue as modified hereby. In the event of
any inconsistency between the provisions in this Addendum and the Agreement, the
provisions of this Addendum shall govern and be binding.
1. As of the Effective Date, this Addendum supercedes and replaces Addendum
No. 3 entered into by the parties as of January 10, 2001.
2. Commencing on January 1, 2003 (the "Renewal Date"), the Agreement shall
continue for a term of sixteen (16) months (the "Renewal Term").
3. Distributor [***] purchase, over the course of the Renewal Term not less
than [***] ([***]) Xxxxxx Xxxxx (registered symbol) point-of-sale transaction
processing terminals ("Terminals"), [***].
4. The prices for the products to be sold during the Renewal Term hereunder
are set forth on Schedule A hereto; provided that Xxxxxx may increase such
prices by the amounts specified in Section 6 under Schedule A, in the event
Distributor fails to meet the [***] during the Renewal Term. Any such price
increases shall have retroactive effect back to the Renewal Date.
5. Within fifteen (15) days after the date hereof, Distributor shall provide
Xxxxxx with a 90 day rolling forecast. Such forecasts shall be considered
binding firm monthly commitments, unless at least forty five (45) days prior to
a month, Reseller notifies Xxxxxx of an updated order quantity; provided that
(a) such updated quantity may not vary from the quantity forecast for any model
of Xxxxxx products for such month by more than twenty percent (20%) and (b) such
update may not result in the quantity of any Xxxxxx product purchased hereunder
varying by more than ten percent (10%) for three consecutive months firm the
quantity forecast. Xxxxxx may drop-ship from Israel directly to Distributor
provided that Distributor is not subject to any costs or handling requirements
above and beyond shipment FOB Syosset, New York. Payment terms on all undisputed
amounts are net 45 days from receipt of invoice and all freight charges and
applicable taxes will be added to each invoice.
6. Distributor customers will be entitled to participate in Xxxxxx'x Xxxxx VIP
incentive program. In addition, merchants purchasing Terminals from TASQ
("Covered Terminals") shall be eligible to purchase an extended warranty for
such Terminals from Xxxxxx via Xxxxxx'x XxXxxxx.xxx website. Xxxxxx will pay
Distributor a commission of [***] ([***]%) of the extended warranty price in
respect of all Covered Terminals for which warranties having a cost of at least
[***] dollars ($[***]) are purchased. Monitoring and commissions of all merchant
related service shall be done thorough Xxxxxx XxXxxxx.xxx web site. This
provision shall survive termination of the Agreement or this Addendum.
7. Distributor shall provide an increased support level for, and promotion of,
the Xxxxxx deployment business. For proposes of this provision, "increased
support level" means providing inventory management services to any customer
which requests it, including customer service, deployment, encryption, download,
etc., at Distributor's customary fees.
8. Xxxxxx and Distributor shall co-market Terminals to larger clients, including
banks and hosts. The marketing programs shall be agreed upon by both the parties
and shall include a joint sales effort.
9. Distributor will consider adapting Xxxxxx'x platform for future OEM products
and Xxxxxx will develop the hardware requirements.
10. Distributor may feature Terminals on all its advertisements for POS
products, unless those advertisements are paid for by Xxxxxx'x competitors.
11. Distributor is authorized to directly perform general repairs or maintenance
of Terminals during the warranty period and thereafter, without obtaining
Xxxxxx'x prior consent. Xxxxxx will compensate Distributor for warranty repairs
made during the term of the Agreement by Distributor at ____ $[***] per repair,
upon submission by Distributor of supporting documentation. However, Distributor
shall not allow any other party to repair or maintain Terminals unless
authorized by Xxxxxx in writing. Any defective board under warranty that is
replaced by Distributor shall be returned to Xxxxxx and, upon Xxxxxx'x
verification that the board is defective, Xxxxxx shall ship a repaired or
replacement board to Distributor.
12. Distributor shall provide Xxxxxx with sales reports of Xxxxxx products in a
format that is consistent with monthly reports currently provided to Xxxxxx.
Xxxxxx reserves the right to request that such reports be certified by
Distributor's CFO.
13. In the event Xxxxxx reduces the prices for Terminals referred to in Schedule
A hereof by more than [***]%, Xxxxxx shall credit Distributor with an amount
equal to the difference between any amounts actually paid by Distributor for
such Terminals less than the reduced new price for the equivalent number of such
Terminals. This credit shall only apply to Terminals belonging to the specific
line subject to the price reduction, which were delivered not more than sixty
(60) days prior to the date of the price reduction. The credit under this
section shall not include price changes for new models of the same line of
terminals.
14. Distributor shall have the right to purchase and distribute all products in
Xxxxxx'x POS product line, including new product releases, except for (i)
terminals which are custom made for a specific customer, sold directly to
merchants and differ from Xxxxxx'x standard product offering referenced in
Schedule A or (ii) products that are being developed under existing agreements.
In WITNESS WHEREOF, the Parties hereto have caused their duly authorized
officers to execute this Addendum as of the date set forth above.
XXXXXX USA, INC. TASQ TECHNOLOGY, INC.
BY: /S/ Mony Zenou BY: /s/ Xxx Xxxxxxxx
------------------------------------- -----------------------------
Name: Mony Zenou Name: Xxx Xxxxxxxx
---------------------------------- --------------------------
Title: President & CEO Title: President
---------------------------------- --------------------------
Date: 12/20/02 Date: 12/18/02
---------------------------------- ---------------------------
Schedule A
XXXXXX U.S.A., INC. PRICE LIST FOR TASQ TECHNOLOGY, INC.
(Effective January 1, 2003)
-------------------------------------------------------------------------------------------------------
[***]K [***]K [***]K
Terminals Terminals Terminals
Delivered and Delivered and Delivered and
Paid for Paid for Paid for
in Term in Term in Term
-------------------------------------------------------------------------------------------------------
Terminals:
-------------------------------------------------------------------------------------------------------
NURIT 2080+ (current production version) [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NURIT 2085 (current production version) [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NURIT 2085+ (current production version) [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NURIT 3010 (current production version) [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NURIT 3020 LAND LINE with 14.4 modem and
2MB RAM, Built in PIN pad [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NURIT 3020 OEM with smart card reader [***] [***] [***]
-------------------------------------------------------------------------------------------------------
[***] [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NURIT 8000 Landline Wireless OEM [***] [***] [***]
-------------------------------------------------------------------------------------------------------
Peripherals:
-------------------------------------------------------------------------------------------------------
Mouse modem for 8000 [***] [***] [***]
-------------------------------------------------------------------------------------------------------
NUTRIT Signature Capture Pad (OEM) [***] [***] [***]
-------------------------------------------------------------------------------------------------------
Parts:
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Other Materials:
-------------------------------------------------------------------------------------------------------
Product Brochures for Terminals (STANDARD) [***] [***] [***]
-------------------------------------------------------------------------------------------------------
Product Brochures for Terminals (CUSTOMIZED
WITH DISTRIBUTOR LOGO)** [***] [***] [***]
-------------------------------------------------------------------------------------------------------
6. The prices above are based upon Distribor meeting its annual estimated
commitment level set forth in Section 3 of this Addendum. If Distributor
fails to meet the estimated commitment level specified therein, and achieves
one of the levels specified below, Xxxxxx shall invoice Distributor within
sixty (60) days of the close of the Renewal Term, the per-unit price difference
for the actual level achieved, multiplied by the number of terminals shipped
during the aforementioned period.
Schedule A
Quantity Tiers of Actual Shipped Add to Actual Quantity Shipped
[***] [***]
[***] [***]
[***] [***]
