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XXXXXX XXXXXX DEALER AGREEMENT
This Dealer "Agreement" is between Compaq Computer Corporation, a
Delaware Corporation, having its principal place of business at 00000 XX 000,
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, 00000 ("COMPAQ") and Dataflex Corporation, d/b/a
Dataflex/computerBay, having its principal place of business at 0000 Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxxx Xxxxxx, XX 00000 ("Dealer").
1. Definitions:
1.1 The term "COMPAQ Products" as used in this Agreement shall
mean items described in the United States Dealer Price List published by COMPAQ
("Price List"), as updated and revised from time to time, and all COMPAQ spare
parts and accessories.
1.2 The term "Dealer's Authorized Headquarters" as used in this
Agreement shall mean the party to a COMPAQ Central Purchase Agreement currently
in effect with COMPAQ, who is identified in Exhibit A attached hereto.
2. Appointment as Dealer
2.1 COMPAQ hereby appoints Dealer, and Dealer hereby accepts its
appointment, as an Authorized Dealer for COMPAQ Products only in the United
States and only from the wholly-owned Dealer locations or within the
territories specified in Exhibit A, attached hereto, and such other locations
or territories as may be agreed to in writing by COMPAQ ("Authorized
Location(s)"). All shipments of COMPAQ Products will be made to Dealer's
Authorized Locations unless otherwise agreed to in writing by COMPAQ. COMPAQ
reserves the right, during the term of this Agreement and thereafter, to market
COMPAQ Products or other products in the geographic areas served by Dealer,
either directly or indirectly, through any means, without obligation or
liability to Dealer. Dealer shall have no right to, and agrees it shall not,
ship COMPAQ Products to any location other than Dealer's Authorized Location(s)
without the prior written approval of COMPAQ, or appoint any other dealers,
warranty service providers or distributors of COMPAQ Products.
2.2 Dealer is an independent contractor and is not a legal
representative or agent of COMPAQ for any purpose whatsoever. Dealer is not
authorized to and agrees that it will not, make any warranties or
representations or assume or create any other obligations or liabilities on the
behalf of COMPAQ. Dealer agrees to indemnify and hold COMPAQ harmless from and
against any and all such warranties, representations, obligations and
liabilities in accordance with Section 27 of this Agreement.
3. Term
Unless earlier terminated pursuant to Section 26 herein, the term of
this Agreement shall be twelve (12) months, commencing on the date COMPAQ
executes this Agreement ("Effective Date"). This Agreement will be
automatically renewed at the conclusion of the initial twelve (12) month period
for successive twelve (12) month periods unless one of the parties indicates by
written notice to the other party given not less than thirty (30) days prior to
the end of any such twelve (12) month period that it does not intend to renew.
Notwithstanding the provisions of this Section, this Agreement may be
terminated by either party at any time pursuant to Section 26 of this
Agreement.
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4. Duties of COMPAQ
4.1 COMPAQ agrees to provide the following services to Dealer:
4.1.1 Provide Dealer with an initial quantity, as
determined by COMPAQ, of sales aids, data sheets, brochures, instruction sheets
and other materials to assist Dealer in the promotion and sale of COMPAQ
Products. COMPAQ will make additional copies of these materials available to
Dealer at a reasonable charge.
4.1.2 Provide Dealer with such technical assistance and
information regarding COMPAQ Products as COMPAQ believes is necessary and keep
Dealer advised of material information regarding COMPAQ Products.
4.1.3 Provide training for one (1) employee from each
Authorized Location where Dealer performs maintenance and/or warranty service
on COMPAQ Product ("Authorized Service Location") and provide initial service
documents as part of the service training. COMPAQ will make additional copies
of these materials available to Dealer and/or provide training for additional
Dealer employees at a reasonable charge.
4.1.4 Provide training for one (1) Dealer employee from
each Authorized Location where Dealer performs sales and marketing services for
COMPAQ Products ("Authorized Sales Location") and provide initial sales and
marketing materials as part of the sales training. COMPAQ will make additional
copies of these materials available to Dealer and/or provide training for
additional Dealer employees at a reasonable charge.
5. Duties of Dealer
5.1 Dealer agrees that it shall perform the following material
obligations at all times during the term of this Agreement:
5.1.1 Maintain at each Authorized Sales Location one (1) or
more full-time employees trained by COMPAQ and capable of effectively marketing
COMPAQ Products.
5.1.2 Maintain at each Authorized Service Location one (1)
or more full-time employees who have, in the sole judgment of COMPAQ, passed
COMPAQ service training and who are, in the sole judgment of COMPAQ, capable of
effectively providing warranty and maintenance service on all COMPAQ Products.
5.1.3 Maintain at each Authorized Service Location adequate
floor space and related facilities to provide warranty and maintenance service
to purchasers of COMPAQ Products
5.1.4 Exert its best efforts to market, advertise, promote,
sell and service COMPAQ Products.
5.1.5 Conduct its business at all times in a manner that
reflects favorably upon the reputation, quality, goodwill and credibility of
COMPAQ and COMPAQ Products. To this end, Dealer shall not disparage COMPAQ or
COMPAQ Products in any way or make any representations or express any opinions
regarding the features or capabilities of COMPAQ Products which are not
consistent with those found in literature or other materials distributed by
COMPAQ.
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5.1.6 Establish and maintain compensation plans (or other
incentive plans) for Dealer's employees, agents and subcontractors involved in
the marketing, advertising, promotion, sales and/or servicing of COMPAQ
Products which are at all times proportionally fair to COMPAQ in comparison to
similar plans for any other competitive products sold by Dealer and which
reflect Dealer's obligation to exert best efforts to sell COMPAQ Products.
5.1.7 Provide, at COMPAQ's request, copies of the
compensation plans for other products sold by Dealer.
5.1.8 Explain and demonstrate COMPAQ Products upon customer
request and instruct the customer with respect to setup and installation of
COMPAQ Products. Dealer shall not sell COMPAQ Products by mail, telephone, or
by or through any other method which does not emphasize in-person contact with
the customer.
5.1.9 Furnish a xxxx of sale or other receipt to the
customer stating the date of sale and the serial numbers of the COMPAQ Products
sold and ensure that the appropriate COMPAQ warranty statement, agreement or
other materials as specified by COMPAQ from time to time are included with each
COMPAQ Product.
5.1.10 Provide COMPAQ with a valid resale exemption
certificate(s), as required by law, in lieu of, or with respect to, sales tax
for the COMPAQ Products purchased under this Agreement. Dealer agrees to
promptly notify COMPAQ of the revocation or modification of any such resale
exemption certificate.
5.1.11 Promptly report to COMPAQ all suspected COMPAQ
Product defects or safety problems and keep COMPAQ informed of customer
complaints.
5.1.12 Allow COMPAQ or its third party representative access
to Authorized Locations to inspect Dealer's facilities and records for the
purpose of ensuring Dealer's compliance with the terms of this Agreement.
5.1.13 Maintain sufficient liability insurance to protect
COMPAQ from all customer claims arising out of the acts, omissions,
misrepresentations or negligence of Dealer.
5.1.14 Obey all applicable laws, comply with all applicable
rules and regulations, and conduct business in an ethical manner.
5.1.15 Maintain for five (5) years from the date of sale a
list of all customers and their addresses at the time of sale together with
COMPAQ Product serial numbers, if any, and provide all assistance reasonably
required by COMPAQ in implementing any mandatory safety changes. This
obligation shall survive the expiration or termination of this Agreement.
5.1.16 Purchase and maintain at each Authorized Service
Location a COMPAQ specified complement of warranty service parts from COMPAQ.
5.1.17 Use only parts manufactured or designated by COMPAQ
when performing COMPAQ warranty service unless otherwise agreed by COMPAQ in
writing.
5.1.18 Maintain adequate tools and test equipment at each
Authorized Service Location to provide warranty service for COMPAQ Products.
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5.1.19 Validate all warranty claims and render warranty service on
all COMPAQ Products within forty-eight (48) hours of the receipt by Dealer of
any COMPAQ Product for warranty service, regardless of place of purchase,
according to procedures established from time to time by COMPAQ and
communicated to Dealer.
5.1.20 Maintain an overall credit rating satisfactory to COMPAQ in
its sole judgment.
5.1.21 Maintain an appropriate and attractive display of working
COMPAQ Products in each Authorized Sales Location:
5.1.22 Purchase COMPAQ Products only from COMPAQ or Dealer's
Authorized Headquarters unless written permission from COMPAQ to purchase from
another source has been granted.
5.2 Dealer shall not sell or otherwise make available COMPAQ Products to
any third party for the purpose of resale to others unless approval to do so has
been given by COMPAQ to Dealer in accordance with this Agreement.
5.3 Dealer shall not incorporate or substitute parts or options not
manufactured or sold by COMPAQ into COMPAQ Products unless Dealer notifies the
customer of such incorporation or substitution and records such notice on a
receipt or other proof of purchase provided to the customer. Dealer shall also
inform the customer that parts or options not manufactured or sold by COMPAQ
are not warranted by COMPAQ.
5.4 Dealer shall not perform service on COMPAQ Products using parts not
manufactured or sold by COMPAQ without identifying to the customer which parts
are not manufactured or sold by COMPAQ and notifying the customer that such
party are not warranted by COMPAQ.
6. Sales to Dealer Associates
6.1 In the event that Dealer wishes to sell COMPAQ Products to a third
party ("Dealer Associate"), for the purpose of resale to others, Dealer shall
nominate and interact with such Dealer Associate pursuant to the written
policies and procedures established and amended by COMPAQ from time to time at
its sole discretion. Each Dealer Associate must be approved in writing by
COMPAQ, which approval shall be at COMPAQ's sole discretion.
6.2 COMPAQ shall have the right at any time to withdraw its approval of a
Dealer Associate with or without cause upon written notice to Dealer.
7. Sales to Other Authorized Dealers
Dealer may sell COMPAQ Products to other Authorized Dealers of COMPAQ
Products but only if Dealer has first obtained written approval from COMPAQ to
make such sale, Dealer shall provide COMPAQ, within thirty (30) days of such
sale, with a written list of COMPAQ Products sold to such other Authorized
Dealer(s), together with their respective serial numbers, if any.
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8. Sales to Government
In the event that Dealer sells COMPAQ Products to the Government, Dealer
shall make such sales pursuant to the written policies and procedures
established and amended by COMPAQ from time to time at its sole discretion.
9. Sales of Spare Parts to Third Parties
9.1 Dealer may sell COMPAQ spare parts to third parties for use in
servicing COMPAQ Products ("Third Party Maintainers") subject to the following
conditions:
9.1.1 It is understood that only COMPAQ can authorize warranty
service providers and that the purchase of COMPAQ service parts by a Third Party
Maintainer from Dealer does not authorize the Third Party Maintainer to perform
warranty services on COMPAQ Products.
9.1.2 Any warranty provided by a Third Party Maintainer shall
be at the sole expense and obligation of such Third Party Maintainer.
9.1.3 Dealer shall ensure that Third Party Maintainers that
are not authorized by COMPAQ to provide COMPAQ warranty service will notify
their customers in writing that the service they perform is not warranted by
COMPAQ.
9.2 COMPAQ service parts purchased by Dealer shall be used only for
performing warranty service, for performing maintenance service, or for
remarketing to Third Party Maintainers.
10. Product Discontinuance
COMPAQ reserves the unilateral right, without any prior notice, to cease
making available any COMPAQ Product to Dealer.
11. Change of Control
In the event of any merger, consolidation, change in key management,
change or loss of franchise relationship, reorganization of Dealer, change of
control, transfer of any substantial part of Dealer's or its Authorized
Location's business, whether by sale of stock, sale of assets, or otherwise,
Dealer shall notify COMPAQ in writing within ten (10) days of such change.
Dealer agrees that its failure to provide such notice to COMPAQ shall constitute
a material breach of this Agreement.
12. Scheduling COMPAQ Products
Prior to the commencement of this Agreement and, thereafter, on or
before each anniversary of the Effective Date, Dealer will submit a written
forecast to COMPAQ of the COMPAQ Products required for each of the next twelve
(12) months. COMPAQ reserves the right to supply all or a portion of Dealer's
forecast, consistent with availability, production schedules, product demand
and other factors as determined by COMPAQ at its sole discretion. COMPAQ shall
have no liability or obligation to Dealer for partial or late delivery or for
failure to deliver.
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13. Ordering COMPAQ Products
13.1 Dealer shall order and purchase COMPAQ Products pursuant to
written ordering procedures established and amended by COMPAQ from time to time
at its sole discretion.
13.2 All orders shall be subject to acceptance by COMPAQ and shall be
governed solely by the terms and conditions of this Agreement. No additional or
different provisions contained in Dealer's purchase orders or other business
forms or correspondence shall be of any force whatsoever. The failure of COMPAQ
to object to any such provision shall not be deemed an acceptance of such
provisions or a waiver of its rights hereunder.
13.3 Dealer acknowledges that product availability may be subject to
production, shipping or other delays. In such event, Dealer agrees that COMPAQ
may, at its sole discretion, allocate distribution of COMPAQ Products among
COMPAQ's customers, notwithstanding the effect such allocation may have on
Dealer's outstanding orders.
14. Sales Out and Inventory Information
Dealer agrees to provide COMPAQ with a monthly summary by model number
and unit serial number of the COMPAQ Products sold at each Authorized Location
as well as dealer's current inventory position. This summary shall be submitted
to COMPAQ in accordance with the procedures specified from time to time by
COMPAQ.
15. Cancellation Charge
COMPAQ shall have the right to impose a cancellation charge for any
order which is cancelled or deferred by Dealer at a rate to be established by
COMPAQ at its sole discretion. COMPAQ may, at its sole discretion, waive any
cancellation charge. No waiver by COMPAQ of a cancellation charge in one or
more instances shall constitute a waiver by COMPAQ of its right to impose a
cancellation charge in a subsequent instance.
16. Payment and Prices
16.1 Payment in full for each COMPAQ Product shall be due and payable
within thirty (30) days of the date of the invoice ("Due Date"). If payment is
not received by COMPAQ by the Due Date, the Dealer shall pay a financing charge
of 1.5% for each month or portion thereof during which payment remains
outstanding.
16.2 If COMPAQ has given Dealer notice of termination of this
Agreement or if Dealer is delinquent on any payment for COMPAQ Products, COMPAQ
shall have the right to stop all shipments to Dealer. The order for any such
stopped shipment shall be considered to have been cancelled by Dealer.
16.3 Dealer shall pay COMPAQ for COMPAQ Products in United States
Dollars at the applicable prices ("Dealer Price") specified in the COMPAQ United
States Price List in effect on the date an order is received or shipped by
COMPAQ, whichever is less, provided, however, that if publication of a new Price
List results in an increase in the price of any COMPAQ Product, the increased
price shall apply to any order placed by Dealer after the effective date of the
Price List or any other order which is scheduled by COMPAQ for shipment after
the effective date of the Price List.
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16.4 COMPAQ reserves the right to amend the Price List without
notice. The amended Price List shall become effective either on the date of
publication or on the date specified by COMPAQ and remain in effect until a new
Price List is published and effective.
16.5 When the adoption of a new Price List results in the reduction
of the price of any COMPAQ Product (excluding spare parts), COMPAQ may provide
Dealer price protection for such products pursuant to written policies or
procedures established by COMPAQ from time to time at its sole discretion.
16.6 The prices shown on the Price List are FOB a COMPAQ designated
shipping location and do not include the cost of transport, taxes, duties or
any other costs associated with the transportation of COMPAQ Products. All
such costs for each COMPAQ Product shall be paid by Dealer in accordance with
the billing practices of COMPAQ as implemented from time to time.
16.7 In addition to the prices shown on the Price List, Dealer
agrees to pay any taxes resulting from this Agreement of the activities
contemplated hereunder, exclusive of taxes based on the net income of COMPAQ.
16.8 The suggested resale price for a COMPAQ Product set forth in
any Price List is a suggestion only. Dealer is under no obligation to accept
any such suggestion. COMPAQ expressly disclaims any intention to have Dealers
adhere to the suggested resale price.
16.9 COMPAQ shall have the right to set off or apply any and all
amounts owed by Dealer, its subsidiaries and affiliates, against any and all
amounts owed or which may subsequently be owing by COMPAQ to Dealer, its
affiliates, subsidiaries, or their successor in interest.
17. Title
Title to each COMPAQ Product shall pass to Dealer upon delivery by
COMPAQ to a common carrier for shipment.
18. Risk of Loss or Damage
Dealer and its insurers, if any, accept responsibilities for all
risks of loss or damage to the COMPAQ Products upon delivery by COMPAQ to a
common carrier for shipment.
19. Security Interest
COMPAQ reserves a purchase money security interest in the COMPAQ
Products shipped to Dealer under this Agreement. In the proceeds thereof in
the amount of the COMPAQ Products' purchase prices, and in the accounts
receivable for such COMPAQ Products. Dealer expressly grants COMPAQ the right
to file in Dealer's name any document required to perfect such purchase money
security interest. Dealer agrees to sign any documents required to permit
COMPAQ to perfect any such purchase money security interest.
20. Partial Shipments
COMPAQ may make the shipments of COMPAQ Products ordered by Dealer
in one or more installments. Delay in shipment by COMPAQ of any installment in
excess of thirty (30) days from the scheduled shipping date shall, upon written
notification by Dealer
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to COMPAQ prior to actual shipment, relieve Dealer from its obligation to
accept any remaining installment.
21. Warranty Service
21.1 COMPAQ authorizes Dealer to perform, and Dealer agrees to
perform, the services which meet the terms of either the COMPAQ limited
warranty statements included with COMPAQ Products or any extended service
agreement the customer has purchased with respect to COMPAQ Products,
regardless of the place of purchase of the COMPAQ Product. The quality
standards and procedures for such services will be set forth by COMPAQ from
time to time in writing to Dealer.
21.2 In consideration for Dealer's agreement to provide COMPAQ
warranty service or extended service, COMPAQ agrees to (i) credit Dealer for
warranty labor at the rate set forth in the current COMPAQ Computer Dealer
Warranty Reimbursement Schedule, as revised by COMPAQ from time to time, for
service rendered within the applicable warranty period; and (ii) exchange
defective COMPAQ parts returned by Dealer which were replaced in COMPAQ
Products falling within the applicable warranty period or, at the option of
COMPAQ, credit Dealer at the then current COMPAQ Dealer Price for such part.
22. Limited Warranty
22.1 The applicable COMPAQ limited warranty statement is included
with each COMPAQ Product shipped to Dealer. Dealer is not authorized by
COMPAQ to make any other warranty, whether written or oral, with respect to
COMPAQ Products.
22.2 Dealer may submit warranty service claims to COMPAQ for
COMPAQ Products when a defect that would be a breach of the COMPAQ limited
warranty statement is discovered by Dealer prior to the Date of Purchase, as
defined in Sub-Section 22.3 of this Agreement, provided that such claim is made
by Dealer within a specified period of time after the shipment of the COMPAQ
Product to Dealer as established by COMPAQ from time to time.
22.3 The Date of Purchase of any COMPAQ Product for purposes of this
Section 22 is defined as (i) Dealer's sale of the COMPAQ Product, or (ii) the
initial transfer of title of the COMPAQ Product from Dealer, or (iii) the setup
and operation by Dealer of the COMPAQ Product for loan, lease, rental, or any
other similar purpose, or (iv) the use by Dealer of the COMPAQ Product for any
business purpose, whichever date comes first.
22.4 EXCEPT FOR THE WARRANTY SET FORTH IN THE LIMITED WARRANTY
STATEMENT WHICH ACCOMPANIES EACH COMPAQ PRODUCT, COMPAQ MAKES NO WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO THE PERFORMANCE OF COMPAQ PRODUCTS. ALL
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ELSEWHERE IN THIS AGREEMENT,
THE LIABILITY OF COMPAQ FOR DAMAGES CAUSED BY ANY ALLEGEDLY DEFECTIVE COMPAQ
PRODUCTS DISCOVERED BY DEALER WITHIN THE SPECIFIED PERIOD ESTABLISHED BY COMPAQ
PURSUANT TO SECTION 22.2 IS LIMITED TO THE TERMS OF THE APPLICABLE LIMITED
WARRANTY STATEMENT. COMPAQ SHALL HAVE THE RIGHT TO CHANGE ITS LIMITED WARRANTY
AT ANY TIME WITHOUT FURTHER NOTICE OR OBLIGATION TO DEALER OR ANY OTHER PERSON
BY REASON OF SUCH CHANGE.
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23. Trademarks and Related Matters
23.1 Dealer may refer to itself as an "Authorized COMPAQ Computer Dealer"
during the term of this agreement solely in connection with the sale of
COMPAQ Products purchased from COMPAQ pursuant to this Agreement.
23.2 No rights are granted to Dealer to use trademarks and trade names
of COMPAQ or trademarks or trade names of third parties used in connection with
the COMPAQ Products except the limited permission for Dealer to use the
trademark "COMPAQ" and any other trademarks identified on the COMPAQ Price
List, registered, or identified by COMPAQ as a COMPAQ trademark ("Trademark"),
solely to identify COMPAQ Products purchased from COMPAQ pursuant to this
Agreement. Dealer shall provide to COMPAQ, for prior review and written
approval, all promotional, advertising and other materials and activity using
or displaying any Trademark or trade name of COMPAQ or of third parties used in
connection with COMPAQ Products or referring to Dealer as an "Authorized COMPAQ
Computer Dealer," unless such materials and activity are within the guidelines
set forth by COMPAQ from time to time to Dealer. Dealer agrees to change or
correct, at Dealer's expense, any such material or activity which COMPAQ, in
its sole judgment, determines to be inaccurate, objectionable, misleading or a
misuse of Trademarks or trade names of COMPAQ.
23.3 Upon the expiration or termination of this Agreement, Dealer shall
immediately cease referring to itself as an "Authorized COMPAQ Computer Dealer"
and shall immediately cease using Trademarks and trade names of COMPAQ and of
third parties in connection with COMPAQ Products except those used on COMPAQ
Products which remain in the possession of Dealer. Dealer shall also promptly
return to COMPAQ or destroy all materials in its possession or under its
control employing such Trademarks and trade names used in connection with COMPAQ
Products.
23.4 Dealer recognizes COMPAQ ownership of and title to the Trademarks
and the goodwill attaching thereto, and agrees that any goodwill which accrues
because of Dealer's use of the Trademarks or because of any other activity
involving the promotion of COMPAQ Products shall vest in and become the
property of COMPAQ. Dealer agrees not to contest or take any action to contest
the Trademarks or trade names of COMPAQ or to use, employ or attempt to
register any Trademark or trade name which is confusingly or deceptively
similar to the Trademarks or trade names of COMPAQ.
23.5 The provision of this Section 23 shall survive the expiration or
termination of this Agreement.
24. Patents and Copyrights
24.1 COMPAQ will defend Dealer against a claim that COMPAQ Products
supplied hereunder infringe a United States patent or copyright and COMPAQ will
pay resulting costs, damages and attorney's fees finally awarded by a court,
provided that (i) Dealer promptly notifies COMPAQ in writing of the claim; and
(ii) COMPAQ has sole control of the defense and all related settlement
negotiations.
24.2 The obligation of COMPAQ under this Section is conditioned on
Dealer's agreement that if the COMPAQ Products or the operation thereof become,
or in the opinion of COMPAQ are likely to become, the subject of such a claim,
Dealer will permit COMPAQ, at the sole option and expense of COMPAQ, either to
procure the right for the Dealer to continue marketing and using the COMPAQ
Products or to replace or modify them so that they become non-infringing.
However, if neither of the foregoing alternatives is available on
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terms which are reasonable, in the sole judgment of COMPAQ, Dealer will return
the COMPAQ Products upon written request by COMPAQ and COMPAQ agrees to grant
Dealer a credit equal to the price paid by Dealer to COMPAQ for the returned
COMPAQ Products.
24.3 COMPAQ shall have no liability for any claim based upon the
combination, operation or use of any COMPAQ Product supplied hereunder with
equipment, date or programming not supplied by COMPAQ, or based upon any
alteration or modification of the COMPAQ Products.
24.4 The foregoing states the entire obligation of COMPAQ to Dealer with
respect to infringement of patents and copyrights.
25. Confidential Information
Confidential information shall mean all information designated "COMPAQ
Confidential" or disclosed to Dealer by COMPAQ which relates to the present or
future development and business activities of COMPAQ, including but not limited
to all sales, promotional, advertising, and support programs, except such
information as is previously known to Dealer without an obligation of
confidentiality or is publicly disclosed by COMPAQ either prior to or
subsequent to Dealer's receipt of such information from COMPAQ. Dealer shall
hold such confidentiality information in trust and confidence for COMPAQ and
shall not use it except in furtherance of the relationship set forth in this
Agreement, nor publish, disclose or disseminate it, except as may be authorized
by COMPAQ in writing. Upon the expiration or termination of this Agreement,
Dealer shall deliver to COMPAQ all written or descriptive matter including, but
not limited to, drawings, blueprints, descriptions or other papers or documents
containing any such confidential information. This Section shall survive the
expiration or termination of this Agreement.
26. Termination
26.1 Either party shall have the right to terminate this Agreement at any
time, for any reason or no reason whatsoever, at such party's sole and
unchallengeable discretion, said termination to be effective no fewer than
thirty (30) days from the date written notice of termination is received by the
non-terminating party.
26.2 Upon the occurrence of any of the following enumerated
circumstances, termination of this Agreement by COMPAQ shall be effective
immediately upon receipt by Dealer of written notice of termination:
26.2.1 A receiver, liquidator, trustee or similar administrator is
appointed to take charge of all or substantially all of Dealer's assets; or
26.2.2 Dealer is adjudged or becomes bankrupt or insolvent, is
unable to pay its debts as they become due, or makes an assignment for the
benefit of its creditors; or
26.2.3 Any judicial proceedings are commenced by or on behalf of
Dealer pursuant to any bankruptcy, insolvency or debtor relief law; or
26.2.4 Dealer voluntarily or involuntarily undertakes to dissolve
or wind up its affairs; or
26.2.5 There occurs any event as specified in Section 11 hereof; or
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26.2.6 Dealer defaults in any payment due to COMPAQ and such default
continues for a period of ten (10) days after the Due Date; or
26.2.7 Dealer makes any false or misleading representations in
connection with the business relationship of the parties or engages in fraud,
criminal or negligent conduct in connection with the business relationship of
the parties; or
26.2.8 Any competitor of COMPAQ purchases or otherwise acquires an
interest of any sort or size in Dealer; or
26.2.9 Dealer breaches any other material term of the Agreement.
If for any reason such circumstances are found not to exist, termination shall
nevertheless be effective thirty (30) days from the date of receipt by Dealer
of COMPAQ's written notice of termination pursuant to Sub-Section 26.1.
26.3 The parties understand and agree that this Agreement may be
terminated at any time and that as a result of such termination, the terminated
party may suffer injury, damages and loss. Moreover, expenditures of money and
time undertaken by the parties pursuant to or in connection with this Agreement
may as a result of such termination be rendered worthless, and goodwill or
other tangible and intangible assets or value generated by such expenditures or
by long-term contracts and relationships with customers or others may be lost.
Notwithstanding all of the above, and UNDERSTANDING FULLY THE RISK THAT THIS
AGREEMENT MAY BE TERMINATED AT ANY TIME FOR ANY REASON OR FOR NO REASON
WHATSOEVER, each of the parties hereto hereby agrees that in the event of
termination, the terminating party shall not under any circumstances be liable
to the whether for the loss of present or prospective commissions or lost
profits, or for expenditures, investments, opportunities forgone, or for the
inability to fulfill customer contracts, or otherwise.
26.4 If COMPAQ, terminates this Agreement, COMPAQ may, at its sole
option, repurchase some or all of the COMPAQ Products in Dealer's inventory at
prices to be agreed upon by COMPAQ and Dealer, but in no event greater than the
price invoiced to and actually paid by the Dealer less any credits received by
Dealer in respect of such Products. In the event the factory box seal of a
COMPAQ Product has been broken, the price to be paid by COMPAQ shall not exceed
50% of the price invoiced to and actually paid by Dealer. Dealer agrees to
return to COMPAQ, pursuant to the terms set forth in this Sub-Section, any or
all of Dealer's inventory that COMPAQ may decide to repurchase.
26.5 If Dealer terminates this Agreement, COMPAQ may, at its sole
discretion, accept return of some or all of the COMPAQ Products in the
Dealer's inventory offered to COMPAQ by the Dealer. If COMPAQ chooses to
accept such returns, Dealer will be reimbursed the price invoiced to and
actually paid by the Dealer, less any credits received by Dealer in respect of
such COMPAQ Products and less a 15% handling charge and any return shipment
charges paid by COMPAQ.
26.6 Termination of this Agreement by either party does not relieve
Dealer of any responsiblity of duty set forth in this Agreement which by its
terms survives such termination.
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26.7 Termination of this Agreement shall automatically accelerate the
Due Date such that all outstanding invoices shall be due and payable as of the
effective date of termination.
26.8 Upon notice of termination of this Agreement, COMPAQ may reject
all or part of any orders received from Dealer after the date of notice of
termination. COMPAQ may also at its sole discretion, refuse to fill any orders
received prior to notice of termination. Any COMPAQ Products to be shipped to
Dealer prior to the effective date of termination shall be paid for by Dealer by
certified or cashier's check prior to the shipping date.
26.9 Upon the effective date of termination of this Agreement.
26.9.1 Dealer shall promptly return all advertising,
promotional, technical, sales, or other materials supplied by COMPAQ;
26.9.2 Dealer shall cease holding itself out as an authorized
seller or service provider of COMPAQ Products;
26.9.3 Dealer shall notify and arrange for all publishers and
others who may identify, list, or publish Dealer's name as a dealer or service
provider of COMPAQ Products to discontinue such listings as soon as practicable;
26.9.4 Dealer shall no longer sell COMPAQ Products (including
spare parts) to its customers, nor shall Dealer perform warranty service on
COMPAQ Products without the prior written consent of COMPAQ; and
26.9.5 Dealer shall no longer be entitled to warranty service
reimbursement for services performed on COMPAQ Products.
26.10 Upon the date of notice termination:
26.10.1 All promotional allowances available to Dealer for use
which are not already subject to valid and existing claims submitted by Dealer
and received by COMPAQ shall no longer be available for use by Dealer;
26.10.2 Dealer shall no longer be entitled to accrue
additional promotional allowances; and
26.10.3 Dealer's rights under any Inventory return or price
protection policy that may have been established by COMPAQ shall terminate.
27. Indemnification
Dealer agrees to indemnify COMPAQ against, including reasonable
attorneys' fees, and costs of litigation, and hold COMPAQ harmless from, any
and all claims by any other party resulting, directly or indirectly, from
Dealer's acts, omissions, misrepresentations, or negligence, regardless of the
form of action. This Section shall survive the expiration of termination of
this Agreement.
28. Limitation of Remedies
28.1 In the event of the failure, or threatened failure, of Dealer to
fulfill any of its obligations hereunder, COMPAQ shall be entitled to seek
injunctive relief to request that
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such obligation be fulfilled. Without limitation, COMPAQ shall have the right
to seek the enforcement of its rights regarding copyrights, Trademarks or trade
names and the enforcement of Dealer's obligation to cease representing itself
as in any way authorized by COMPAQ to sell or service COMPAQ Products.
28.2 In all situations involving the performance or non-performance of
COMPAQ Products acquired by Dealer under this Agreement, Dealer's remedy is set
forth in Sub-Section 22 of this Agreement. For any other claim brought by
Dealer against COMPAQ, regardless of the form of action, which does not arise
out of or relate to the termination of this Agreement, COMPAQ's liability shall
not exceed the lesser of (i) Dealer's actual damages caused by the breach; or
(ii) 250,000,00.
28.3 In no event shall COMPAQ be liable to Dealer or third parties for
lost profits or other consequential, incidental, indirect or special damages of
any nature whatsoever, including, without limitation, loss of profits, or loss
of business or anticipatory profits even if COMPAQ has been apprised of the
likelihood of such damages.
28.4 DEALER HEREBY WAIVES ALL RIGHTS UNDER THE TEXAS DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT.
29. General
29.1 Dealer shall not assign any right or Interest herein nor delegate
any duty or obligation without the prior written consent of COMPAQ. Any
attempt by Dealer to assign any of the rights or interests or to delegate the
duties or obligations of this Agreement without such consent is void.
29.2 The entire Agreement between the parties is incorporated herein
and supersedes all prior discussions and agreements between the parties
relating to the subject matter hereto. Each party acknowledges that no
representations, inducements, promises herein. This Agreement can be modified
only by a written amendment duly signed by persons authorized to sign
agreements on behalf of Dealer and COMPAQ, and shall not be supplemented or
modified by any course of dealing or trade usage. Variance from or addition to
the terms and conditions of this Agreement in any order or other written
notification from Dealer will be of no effect. The term "Agreement" as used
herein includes any applicable future written amendment incorporated by
reference made in accordance herewith.
29.3 Any obligations and duties which by their nature extend beyond
the expiration or termination of this Agreement shall survive any expiration or
termination and remain in effect.
29.4 If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable, neither party is required to perform said
provision to the extent that said provision is invalid, illegal or
unenforceable; however, such provision shall be enforced to the fullest extent
permitted by applicable law and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
29.5 Neither party shall be liable for the failure to perform any of
its obligations under this Agreement if such failure is caused by the occurrence
of any contingency beyond its reasonable control.
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29.6 No action, regardless of form, arising out of this Agreement may
be brought by either party more than two (2) years after the cause of action
has arisen, or, in the case of non-payment, more than two (2) years from the
date the last payment was due.
29.7 Notices required or permitted hereunder shall be in writing and
deemed given and received when properly posted by registered or certified mail,
postage prepaid, first class, in an envelope properly addressed (i) if to
COMPAQ, to 00000 XX 000, Xxxxxxx, Xxxxx 00000; or (ii) if to Dealer, to the
address set forth in the introduction of this Agreement, or to such other
addresses as Dealer or COMPAQ specified upon ten (10) days written notice to
the other party.
29.8 Any waiver of any kind by COMPAQ of a breach of this Agreement
must be submitted in writing by COMPAQ to Dealer, shall be effective only to
the extent set forth in such writing and shall not operate or be construed as a
waiver of any subsequent breach by Dealer. Any COMPAQ delay or omission, if
any, in exercising any right, power or remedy pursuant to a breach or default
by Dealer shall not impair any right, power or remedy which COMPAQ may have.
29.9 This Agreement and all transactions executed hereunder shall be
governed exclusively by and construed in accordance with the substantive laws of
the State of Texas. This Agreement shall be deemed executed and performed
solely in the State of Texas.
29.10 In the event of litigation involving the parties hereto or
arising out of this Agreement or the subject matter hereof, the exclusive forum
for such litigation shall be the United States District Court for the Southern
District of Texas located in Houston, Texas. The parties hereby consent to the
in personam jurisdiction of said United States District Court for purposes of
any such litigation, and waive, fully and completely, any right to dismiss
and/or transfer any action from the court pursuant to 28 U.S.C. Section 1404 or
1406 (or any successor statue). In the event the United States District Court
for the Southern District of Texas should decline federal jurisdiction, such
litigation shall be brought in the appropriate state court located in Houston,
Texas.
29.11 In any litigation involving the parties hereto or arising out of
this Agreement or the subject matter hereof, the parties hereby agree to waive
trial by jury, and hereby stipulate that any actions shall be tried to the
Court.
29.12 Goods purchased or received under this Agreement as well as all
information disclosed by COMPAQ are subject to United States export
regulations, Dealer may not export such goods or information without first
obtaining written permission from COMPAQ.
29.13 Dealer shall not sell or ship any products or technical data
directly or indirectly to any person or destination where such sale or shipment
would be prohibited by the laws of the United States or regulations of a
department of the United States.
29.14 In any action or proceeding between the parties hereto, or
brought to enforce the terms of this Agreement, the prevailing party in such
action or proceeding shall be entitled to recover its attorneys' fees and
costs, including time and costs of outside and in-house counsel, incurred in
connection with said litigation. In addition to such attorneys' fees and
costs, said prevailing party shall also be entitled to recover the reasonable
costs of management time necessarily incurred in connection with such
litigation. As used in this Agreement, the term "attorneys' fees" shall be
deemed to mean the full and actual cost of any legal services actually
performed in connection with the matters involved, calculated on
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the basis of the usual fees charged by the attorneys performing such services,
and shall not be limited to "reasonable attorneys' fees" as defined by common
law or in any statute or rule of court.
29.15 Dealer shall at all times comply with all applicable federal,
state and local laws and regulations.
291.6 This Agreement is COMPAQ Confidential.
30. COMPAQ Policy
COMPAQ does not contain entertain complaints from its dealers about any
other dealer's pricing practices. In executing this Agreement, Dealer agrees
to abide by that policy and to refrain from making complaints about any other
dealer's prices. COMPAQ may receive information from its dealers on the
non-price conduct of other sellers of COMPAQ Products, including, for example,
information on service, warranty, advertising, or sales by unauthorized
outlets. Any decisions regarding such information will be at sole and
unilateral discretion of COMPAQ. Any comments by COMPAQ representatives
contrary to these policies are expressly unauthorized and disclaimed by COMPAQ.
In executing this Agreement, Dealer recognizes these policies of COMPAQ and
will cooperate with COMPAQ in complying with this policy.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BOUND BY ITS TERMS AND CONDITIONS. FURTHER, BOTH PARTIES AGREE THAT
IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE
PARTIES, WHICH SUPERSEDES ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
DEALER COMPAQ
Dataflex Corporation
--------------------
Corporate Name
Dataflex/computerBay COMPAQ COMPUTER CORPORATION
--------------------
d/b/a Name
7/24/90 AUGUST 2, 1990
------------------------------- ---------------------------------
Date Date (Effective Date)
/s/ Xxxxxxx X. Xxxx, President /s/ XXXX XXXXX
------------------------------- ------------------------------------
Print Name and Title Signature
Xxxxxxx X. Xxxx, President Xxxx Xxxxx, Vice President,
------------------------------- Marketing Operations
Print Name and Title ------------------------------------
Print Name and Title
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