Exhibit 10.24
[Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933, as
amended. A copy of this Exhibit with the portions included has been filed
with the Securities and Exchange Commission.]
HEWLETT-PACKARD COMPANY
U.S. AGREEMENT FOR AUTHORIZED RESELLERS
TABLE OF CONTENTS AND SIGNATURE PAGE
XXXX SYSTEMS, INC.
------------------------------- --------------------------------------------
Company Name (Including DBA's) Agreement
0000 XXXXX XXXXXXX XXXXXX
-------------------------------------------------------------------------------
Xxxxxxx
XXXXX XXX XX 00000 (000) 000-0000
--------------------------------- -----------------------------------------
City State Zip (Area Code) Telephone #
(000) 000-0000
---------------------------------
Fax #
BY THEIR SIGNATURE BELOW, THE PARTIES AGREE TO THE TERMS OF THE AGREEMENTS,
ADDENDA, EXHIBITS AND APPLICATlONS INDICATED, ALL TERMS OF WHICH ARE INCLUDED BY
THIS REFERENCE.
AGREEMENTS:
X U.S. RESELLER - LASERJET MICR SOLUTION
----
(AVAR) SOFTWARE LICENSE AGREEMENT
----
AGENDA:
X U.S. DIRECT VALUE-ADDED RESELLER- LASERJET MICR SOLUTION
----
STATEMENT OF OWNERSHIP
Name of Company: XXXX, A DIVISION OF XXXXXX COMPANIES, INC.
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Form of Organization (e.g. Corporation, General Partnership, Limited
Partnership, Sole Proprietor):
For a Corporation, specify whether: Publicly Held or Privately Held
XX
---- ----
State of Incorporation/ Organization: Delaware
----------------------------------------
Identify Company ownership and management structure as follows (attach
additional pages, if necessary):
Sole proprietor: Identify all owners, officers and ownership percentages
held
Partnership: Identify all General Partners, Limited Partners, Officers and
ownership percentages held (Specify Dollar Investment of Limited Partners)
Privately held corporation: Identify all shareholders, (With class and
percentage ownership), Officers and Board of Director Members
Publicly held corporation: Identify owners of 20% or more of each class of
shares (with class and percentage ownership), Officers and Board of
Director Members
Trust: Identify Trustee (s) (administrators if /trust) and Beneficiaries
of Trust.
Name: Title(s): Ownership Interest
Percentage Ownership Type of Ownership
(Dollar Investment Interest (Assets,
for Limited Common or Preferred
Partners) Shares)
Dirk Family Trust
----------------- ---------------- -------------- --------------
Xxxxxxx X. Xxxx Chairman
----------------- ---------------- -------------- --------------
----------------- ---------------- -------------- --------------
Xxxxxx X. Xxxxxxx General Manager
----------------- ---------------- -------------- --------------
----------------- ---------------- -------------- --------------
---------------- -------------- --------------
*If Company is 100% owned by another corporation, identify the parent
corporation's ownership and management structure above and the identity of the
parent corporation below:
-------------------------------------------------------------------------------
Parent/Owner (including DBA's)
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Address
-------------------------------- ----------- --------------------------
City State Zip (Area Code) Telephone #
------------------------------------- --------------------------
State of Parent/Owner's Incorporation (Fax#)
AUTHORIZED SIGNATURES
DIRK FAMILY TRUST
-------------------------------------------------------
Parent/Owner
/S/ XXXXXXX X. XXXX
-------------------------------------------------------
Authorized Signature
XXXXXX X. XXXXXXX /S/ XXXXXX X. XXXXXXX
-------------------------------------------------------
Typed Name
GENERAL MANAGER
-------------------------------------------------------
Title
HEWLETT-PACKARD COMPANY
/S/ XXXX XXXXXXXXXX 10-1-96
-------------------------------------------------------
Xxxx Xxxxxxxxxx
Hardcopy Marketing Center Manager
Effective Date: APRIL 1, 1996
-------------
Expiration Date: MARCH 31, 1999
--------------
2
U.S. AGREEMENT FOR AUTHORIZED DIRECT LaserJet MICR Solution VALUE-ADDED
RESELLERS
TABLE OF CONTENTS
U.S. LaserJet MICR Solution RESELLER AGREEMENT
1. APPOINTMENT
2. STATUS CHANGE
3. PRICES
4. PAYMENT
5. ORDERS; SHIPMENTS; CANCELLATIONS AND CHANGES
6. PRICE ADJUSTMENTS; PRICE PROTECTION
7. STOCK ADJUSTMENTS
8. DEFECTIVE UNITS & CUSTOMER SATISFACTION RETURNS
9. USER WARRANTY
10. LIMITATION OF REMEDIES AND LIABILITY
11. INDEMNITY
12. RELATIONSHIP
13. RESELLER RECORD-KEEPING
14. TRADEMARK
15. SOFTWARE
16. PATENT INDEMNITY
17. TERMINATION
18. AMENDMENT
19. GENERAL
20. NOTICES
U.S. DIRECT LaserJet MICR Solution VALUE-ADDED RESELLER ADDENDUM
1. APPOINTMENT
2. APPROVED LOCATIONS
3. RESELLER SALES
4. END-USER SALES
5. VAR RESPONSIBILITIES
A. FACE TO FACE SUPPORT
B. TRAINING
C. PRIMARY CONTACT
D. NEW PRODUCT INTRODUCTIONS
E. PRODUCT SERVICE AND CUSTOMER SUPPORT
F. ADVERTISING
6. POLICIES AND PROGRAMS
7. NONBINDING FORECASTING
8. BINDING FORECASTING
9. INDEPENDENT SOURCING
10. TOOLS AND DEVELOPMENT ENVIRONMENT
11. PRODUCT SUPPORT LIFE
12. PRIVATE LABELING & LOSS OF HP PRODUCT IDENTITY
13. ADVANTAGE AND PROMOTIONAL FUNDS
14. PROMOTION AND EXCLUSIVITY
EXHIBITS
A. APPROVED PRODUCT EXHIBIT
B. FORECASTS
C. APPROVED US AND INTERNATIONAL DISTRIBUTlON AND RESELLER LOCATIONS
D. APPROVED INTERNATIONAL COUNTRIES FOR EXPORT
E. DEFINITION OF VAR'S VALUE ADD
F. MILESTONES
3
U. S. LaserJet MlCR Solution RESELLER AGREEMENT
XXXX SYSTEMS, INC.
------------------------------- --------------------------------------------
Company Name (Including DBA's) Agreement
0000 XXXXX XXXXXXX XXXXXX
-------------------------------------------------------------------------------
Xxxxxxx
XXXXX XXX XX 00000 (000) 000-0000
--------------------------------- -----------------------------------------
City State Zip (Area Code) Telephone #
(000) 000-0000
---------------------------------
Fax #
1. APPOINTMENT
A. Hewlett-Packard Company ("HP") appoints the company named above
("Reseller") as an authorized, exclusive United States reseller for
the HP LaserJet MICR Solution Products. This contract entitles
Reseller to offer for sale the select MICR products (identified as
such on the product Exhibit A) on an exclusive basis in the United
States and the other products listed on the Product Exhibits or
designated in writing by HP as being subject to this Agreement on a
non-exclusive basis. To encourage aggressive promotion of HP MICR
products, Reseller agrees to not offer for sale MICR products
competitive with the HP LaserJet 4 Plus and LaserJet 5 printers or
subsequent LaserJet brand printers for the duration of this contract.
Unless otherwise indicated the provisions in this Agreement for "HP
Products" apply with equal effect to Reseller private-labeled versions
of HP Products.
B. Reseller's appointment is subject to the terms of this U.S. LaserJet
MICR Solution Reseller Agreement and the associated Addenda and
Product exhibits (collectively, "Agreement") for the period from the
effective date through the expiration date specified. Reseller
accepts appointment on these terms.
2. STATUS CHANGE
A. If Reseller wishes to:
1) Change its name or that for any approved location;
2) Add, close or change an approved location; or
3) Undergo a significant change in control of Reseller operations;
then Reseller shall notify HP in writing prior to the intended date of
change.
B. HP must approve proposed Reseller changes prior to any obligation of
HP to perform under this Agreement with Reseller as changed.
C. HP agrees to promptly notify Reseller of its approval or disapproval
of any proposed change, provided that Reseller has given HP all
requested information and documents reasonably required by HP.
3. PRICES
A. HP's corporate price lists are internal data bases indicating current
list prices for HP Products ("list prices"). In addition, HP offers
products to customers and resellers that are not on HP's corporate
price lists. Whether listed or unlisted, HP reserves the right to
change list prices and discounts upon reasonable notice to Reseller.
If Reseller is unsure of the list price to use in calculating net
Reseller price for any HP Product. Reseller should contact its HP
sales representative.
B. Price changes on listed or unlisted products will be communicated in
writing to the reseller at least 30 days prior to the price change
taking effect.
C. Net Reseller price for HP Products purchased under this Agreement will
be the list price at the time of Reseller's orders, less the discounts
based on Reseller's volume or other commitments or elections specified
in the Product Exhibits. Please note that LaserJet
signature/font/macro cartridge kits shall be available to Reseller at
net kit prices available to other authorized custom product third
parties with similar volumes. Net kit prices are not listed on
product exhibit.
D. Net Reseller price includes shipment arranged by HP. HP reserves the
right to charge Reseller for any special routing, handling or
insurance requested by Reseller and agreed to by HP. Orders shipped
special routing shall be F.O.B. Origin. Requests for proof of
delivery are subject to limitations and service charges.
E. Net Reseller price excludes State and local taxes. HP will invoice
Reseller for these taxes, based on point of delivery, unless the
appropriate resale exemption certificates are on file at HP's order
entry point or HP agrees the sale is otherwise exempt.
4. PAYMENT
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A. Reseller will pay all invoices in full within 30 days after date of
invoice unless other terms are specified in its HP flooring agreement.
HP reserves the right to specify cash in advance or other terms for
credit reasons.
B. Claims for adjustment of any invoice will be waived if Reseller fails
to present them within 90 days from date of HP invoice. No claims,
credits or offsets may be deducted from any invoice.
5. ORDERS; SHIPMENTS; CANCELLATIONS AND CHANGES
A. HP will honor written, fax and telephone orders from Reseller's
approved Selling Locations. Reseller's orders must comply with the
minimum order, release, ship-to and other requirements specified in
this Agreement. Reseller is responsible for ensuring that only
authorized employees place, change or delete orders and that the
orders conform to all requirements of this Agreement.
B. Reseller's requested date for shipment must be within 90 days after
order dates. HP reserves the right to schedule and re-schedule any
order, at HP's discretion, and to decline any order for credit reasons
or because the order specifies an unreasonably large quantity or makes
an unreasonable shipment request.
C. HP will use reasonable efforts to meet scheduled shipment dates.
However, HP will not be liable for delay in meeting a scheduled
shipment date.
D. Shipments are subject to availability. If HP Products are in short
supply, HP will allocate them equitably at HP's discretion.
E. Reseller may cancel a shipment or request changes in a scheduled
shipment date at no charge up to 5 working days before scheduled
shipment. Any later cancellation or change will be subject to a
charge of 5% of the shipment's list price value. If in transit, it
will be subject also to applicable freight charges.
F. If HP makes a purchase of unique material (such as SIMM kits) at
Reseller's request and such unique material is not utilized due to
cancellation of orders by Reseller, then HP may invoice Reseller for
the cost of the unique material and Buyer shall pay the invoice in
accordance with the payment terms of this agreement.
G. Title to HP Products and risk of loss and damage will pass to Reseller
F.O.B. Destination.
6. PRICE ADJUSTMENTS; PRICE PROTECTION
A. If HP raises Net Reseller prices (either through list price increases
or Product Exhibit discount reductions), HP will invoice Reseller
based on the old list price or discount for affected HP Product orders
placed by Reseller within one month after the effective date of the
increase. Limited quantity restrictions may apply.
B. If HP reduces Net Reseller prices (either through a list price
reduction or a combination of list price and discount changes) then HP
will invoice Reseller based on the reduced Net Reseller price for
affected HP Products shipped on or after the effective date of the
reduction.
C. If HP offers a limited time promotional HP product discount to all
Resellers (excluding rebates and spiffs of all forms), HP will invoice
Reseller based on the Net Reseller price less the promotional discount
for orders conforming to and shipments made pursuant to the terms and
conditions of the promotion.
D. If HP reduces Net Reseller prices and the HP Products are eligible for
price protection as designated on the Product Exhibits then HP will
grant Reseller a price protection credit calculated by one of the two
following methods at HP's discretion:
1) The credit will equal the total reduction in Net Reseller price
(less any previous promotional discount available from HP) for
those HP products in Reseller's inventory and in transit to
Reseller on the effective date of the reduction, using a
verification process determined by HP; or
2) The credit will equal 100% of the total reduction in Net Reseller
price (less any previous promotional discount available from HP)
for those HP Products shipped within 30 days before the effective
date of the reduction, or 75% of the reduction for those HP
Products shipped within 60 days before that date, whichever is
greater.
E. If HP offers a limited time promotional HP Product discount to all
Resellers (excluding rebates and spiffs of all forms) and the HP
Products are eligible for price protection as designated on the
Product Exhibits, then HP will grant Reseller a price protection
credit calculated by one of the two following methods, at HP's
discretion:
1) The credit will equal the promotional discount for those HP
Products in Reseller's inventory and in transit to Reseller on
the effective date of the
5
promotion, using a verification process determined by HP; or
2) The credit will equal 100% of the promotional discount for
Products shipped within 30 days before the effective date of the
promotion or 75% of the promotional discount for those HP
Products shipped within 60 days before that date, whichever is
greater.
F. To receive a price protection credit by the inventory method, Reseller
upon notification of a change in price from HP and upon request, will
complete, sign and return to HP a form showing the number of units in
inventory and in transit to Reseller on the effective date of the
reduction. The format for the form may be defined by Reseller but
must meet the approval of HP. If Reseller fails to submit the form
within 30 days of the effective date of the reduction, Reseller will
receive no price protection for eligible products.
G. In all cases, HP may require that Reseller accumulate a minimum credit
of $200 in a particular month before HP extends price protection to
Reseller for that month.
H. HP reserves the right to offer Reseller obsolete, used or refurbished
HP Products and to offer Reseller HP Products through special
promotions at discounts different from those in the Product Exhibits
and on terms which may not include rights to price protection, stock
adjustment, promotional funds allowance or count towards Reseller's
volume commitment levels, if any.
7. STOCK ADJUSTMENTS
A. HP and Reseller agree that there shall be no stock adjustment for HP
Products which have been relabelled as reseller's products or on MICR
toner or on bootable SIMM kits.
B. HP Products eligible for stock adjustment are designated on the
Product Exhibits. To be eligible for stock adjustment, at the time of
return the HP Products must still be listed on HP's then current
Product Exhibits returned in their unopened, original packaging, and
marketable as new merchandise. Ineligible items will be returned at
Reseller's expense.
C. Eligible HP Products may be returned for stock adjustment in one
consolidated shipment from each approved location, freight prepaid,
once each month during the term of this Agreement. Total returns in
any one quarter may not exceed 5% of, the invoiced amount of HP
shipments during the previous quarter. Quarters will be calculated as
follows: February through April, May through July, August through
October and November through January. At the time of the return,
Reseller must have outstanding orders for HP Products of equal or
greater value scheduled for shipment.
D. In any one quarter, restocking charges will apply to cumulative
returns of HP Products exceeding 5% of shipments to Reseller during
the previous Quarter. Restocking charges are indicated on the Product
Exhibits.
E. Reseller must obtain a Notice of Return number (NOR) for each shipment
of hardware and a separate NOR for each shipment of software returned
for stock adjustment. If a NOR does not appear on the outside of all
boxes returned to HP the shipment will be ineligible for stock
adjustment and will be returned to Reseller at Reseller's expense.
F. Reseller will receive a credit for eligible HP Products returned for
stock adjustment at the Net Reseller price in effect when HP receives
them, less the return charges indicated above, and any promotional or
other discounts, and any price protection or other credit extended to
Reseller by HP for the HP Products. In no event will credits be
extended by HP which would result in a negative outstanding balance
owed by Reseller.
8. DEFECTIVE UNITS & CUSTOMER SATISFACTION RETURNS
A. Reseller and HP agree that the procedure provided below for return and
repair, replacement or credit will be Reseller's exclusive remedy for
any claim relating to any dissatisfaction, defect or nonconformity in
HP Products.
B. At HP's discretion, HP will repair, replace or provide credit to
Reseller for any HP Product found defective by Reseller within 180
days of its shipment to Reseller and within 30 days of purchase by the
customer and no later than 210 days after original shipment by HP to
Reseller. HP and Reseller agree that HP is under no obligation to
accept product which has been relabelled as Reseller's product for
replacement or credit. HP shall only be responsible for repairs to
such product if the defect is solely attributable to HP's
manufacturing or handling.
1) Reseller must first notify HP that the unit is being returned,
identify the reason for return (defect or customer
dissatisfaction) and obtain a separate Notice of Return number
(NOR) for each return.
6
2) The HP Product may then be returned freight collect, marked with
the assigned NOR on the outside of the box. Boxes not marked
with the assigned NOR may be returned by HP to Reseller at its
expense (FOB Reseller).
3) HP may inspect each unit returned as a defective HP Product to
verify that it is eligible for repair, replacement or credit. HP
will not be obligated to repair, replace or provide credit for
units returned as defective and damaged from abuse or misuse
(including improper storage), from attempted repair by an
unauthorized service center or during repossession or shipment to
HP. Reseller will reimburse HP for freight for HP Products
returned as defective units which are found not to be defective
or for customer satisfaction returns exceeding the three percent
limitation for total returns.
4) Units repaired by local HP repair personnel may be repaired with
remanufactured parts.
5) HP's credit to Reseller will be the lowest Net Reseller price
(less promotional HP Product discounts) in effect on the date of
the shipment by Reseller to HP.
9. USER WARRANTY
A. No other warranty for the products shown on the Product Exhibit will
be offered (except as set forth in Section 8 of this agreement).
B. NO OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE ARE OFFERED.
C. Some HP Products may contain selected remanufactured parts equivalent
to new in performance.
D. Reseller
1) shall be solely responsible for and indemnify HP from and against
all warranties extended by Reseller to any third party other than
an end-user, including VARs, resellers, independent sales
representatives, distributors and Reseller;
2) shall include in all shipments of Reseller labeled products
purchased under this Agreement an end-user warranty card no more
extensive in coverage, or time or less protective in terms of
limitations of remedies, damages or exclusions than is in effect
for corresponding, standard, HP-labeled Products on the date of
shipment by Reseller to its customer; and
3) Reseller's independent sales representatives shall be instructed,
as well as any other 3rd party distributor, VAR, reseller or
subsidiary to the extent Reseller is able to control their resale
practice, to extend a hardware warranty for Reseller products in
conformity with that warranty authorized by Section 9D2 above.
4) The warranty specified in the Reseller private labeled products
purchased under the Agreement at current U.S. domestic price is
return to HP in the United States only. Any HP local country
service requested of HP by Reseller in the destination country
will be on a time and materials basis or as otherwise negotiated
between Reseller and HP's international subsidiaries.
10. LIMITATION OF REMEDIES AND LIABILITY
A. THE REMEDIES PROVIDED IN THIS AGREEMENT, INCLUDING THE PROCEDURE FOR
RETURN OF DEFECTIVE GOODS, ARE RESELLER'S SOLE AND EXCLUSIVE REMEDIES
FOR HP PRODUCTS PURCHASED UNDER THIS AGREEMENT. HP WILL NOT BE LIABLE
FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
B. The foregoing limitation of liability will not apply in the event that
any HP Product sold hereunder is determined by a court of competent
jurisdiction to be defective and to have directly caused bodily
injury, death or property damage, provided that in no event will HP's
liability for property damage exceed the greater of $50,000 or the
purchase price of the specific HP Product that caused such damage.
11. INDEMNITY
A. Each party agrees to indemnify the other party from and against any
claim, demand, or liability brought by a third party and based upon
the acts or omissions of the first party in performance of its
responsibilities under this agreement.
12. RELATIONSHIP
A. Reseller's relationship to HP will be that of an independent
contractor in purchasing HP
7
Products for resale to Reseller's customers. Reseller and HP agree
that this Agreement does not establish a franchise, joint venture or
partnership.
B. Unless expressly authorized by HP in writing in advance, any
commitment made by Reseller to its customers with respect to price,
quantities, delivery, specifications, warranties, modifications,
interfacing capability or suitability will be Reseller's sole
responsibility, and Reseller will indemnify HP from liability for any
such commitment by Reseller.
C. List prices are suggested prices for resale to Reseller's customers
and a basis for calculating Net Reseller price. Reseller has the
right to determine its own resale prices, and no HP representative
will require that any particular resale price be charged by Reseller
or grant or withhold any treatment to Reseller based on Reseller's
resale pricing policies. Reseller agrees that it will promptly report
any effort by HP personnel to interfere with its pricing policies
directly to an HP officer or manager.
D. This Agreement applies only to the HP Products listed on the Product
Exhibits or otherwise designated in writing by HP as being HP Products
sold pursuant to this Agreement. Reseller acknowledges that HP may
market other products, including products in competition with those
listed on the Product Exhibits without making them available to
Reseller. HP reserves the right to advertise, promote and sell any
product, including HP Products, in competition with Reseller.
However, nothing in this paragraph shall be construed as diminishing
the distribution rights granted in paragraph 1 of this Agreement.
13. RESELLER RECORDKEEPING
A. For purposes of contract compliance verification, product safety
information, operational problems correction and the like, Reseller
must maintain records of customer purchases of printers, plotters,
scanners and computers for one year. Records must include customer
name, address, phone number, serial number and date of sale of the
above products. Reseller is the only authorized purchaser under this
Amendment, the recordkeeping requirements of this Section do not apply
to resale by any of Reseller's subsidiaries or international
distributors, although Reseller agrees to maintain data for all HP and
Reseller-labeled product purchased from HP under this Agreement
identifying the model number, quantity, date of shipment and country
of shipment from Reseller to its international subsidiary and
distributor customers.
B. At HP's discretion and upon reasonable notice to Reseller, HP or HP's
designate will be given prompt access, either on site or through other
means specified by HP, to Reseller's customer records, inventory
records and other books and records of accounts HP believes are
reasonably necessary to verify and audit Reseller's compliance with
this Agreement. The intent of this paragraph is to allow HP to audit
Reseller records reasonably pertaining to the sale of HP Products.
Failure to promptly comply with HP's request will be considered a
repudiation of this Agreement justifying HP's termination of this
Agreement on 30 days' notice without further cause.
C. HP may require Reseller to provide HP or its designate with HP Product
inventory and sales data including but not limited to, information
such as total units of selected HP Products sold and held in inventory
by month for each approved location in a format specified by HP
(including Use Of Electronic Data Interchange reporting methods). HP
may require monthly reporting incorporating the previous month's data
for each approved location.
14. TRADEMARK
A. From time to time, HP may authorize Reseller to display one or more
designated HP trademarks. Reseller may display the trademarks solely
to promote HP Products. Any display of the trademarks must be in good
taste, in a manner that preserves heir value as HP trademarks, and in
accordance with standards provided by HP for their display. Reseller
will not use any name or symbol in a way which may imply that Reseller
is an agency or branch of HP; Reseller will discontinue nay such use
of a name or xxxx as requested by HP. Any rights or purported rights
in any HP trademarks acquired through Reseller's Use belong solely to
HP.
B. Reseller grants HP the non-exclusive, royalty free right to display
Reseller's trademarks in advertising and promotional material solely
for directing prospective purchasers of HP Products to Resellers
Selling Locations. Reseller may only indicate in such advertisements
or promotional materials that HP supplied components were used. Any
display of the trademarks must be in good taste, in a manner that
preserves their value as Reseller's trademarks, and in accordance with
standards provided by Reseller for their display. Any rights or
purported rights in any Reseller trademarks acquired through HP's Use
belong solely to Reseller.
8
C. HP authorizes and licenses Reseller to modify and market HP Products
as private labeled Reseller MICR solution products and as HP labeled
products under the terms and conditions called out in the U.S.
LaserJet MICR Direct Value-Added Reseller Addendum, and to distribute
them in conformance with the distribution authorization and other
terms in this Agreement.
15. SOFTWARE
Reseller is granted the right to use or distribute software materials
supplied by HP only in accordance with the terms of the software license
agreement executed in conjunction with this Agreement.
16. PATENT INDEMNITY
A. HP will, except as otherwise provided below, defend or settle any
claim made or proceeding brought against Reseller so far as it is
based on an allegation that any HP Product sold under this Agreement
infringes a U.S. patent, trademark or copyright, provided HP is
notified promptly in writing and given information, assistance and
sole authority to defend or settle same at HP's expense; and HP will
pay all damages and costs finally awarded therein against Reseller.
If any such HP Product is held to infringe and its use is enjoined, or
in case of a settlement; HP will have the option at HP's expense to
replace same with a non-infringing product, or modify same so it
becomes non-infringing; or repurchase same from Reseller at net
Reseller price, provided it is new and in its unopened, original
packaging.
B. The foregoing states HP's entire liability for intellectual property
infringement by products furnished under this Agreement.
C. Reseller will defend or settle any claim made or proceeding brought
against HP so far as it is based on an allegation that Reseller's
modification of any HP product sold under this Agreement infringes a
U.S. Patent, trademark or copyright, provided Reseller is notified
promptly in writing and given information, assistance and sole
authority to defend or settle at Reseller's expense; and Reseller will
pay all damages and costs finally awarded therein against HP.
17. TERMINATION
A. This Agreement may be terminated as follows:
1) On the expiration date of this Agreement or with mutual agreement
of the parties. If the parties agree in writing to continue this
Agreement after the expiration date, the Agreement may then be
terminated at any time provided that the terminating party gives
180 days notice, in writing, of the intent to terminate. During
this 180 day period, neither party shall be bound by the
exclusivity provisions set forth in paragraph 1 of this Agreement
and referred to elsewhere in this Agreement.
2) by either party at any time in the event the other party, ceases
to do business, becomes or is declared insolvent or bankrupt, is
the subject of any proceeding relating to this liquidation or
insolvency which is not dismissed within thirty (30) days, or
makes an assignment for the benefit of its creditors;
3) by either party upon thirty (30) days written notice in the event
of a material breach of any obligations under this Agreement by
the other party; provided, however that the party in breach shall
have an opportunity to cure such breach during the thirty (30)
day period, and if so cured to the reasonable satisfaction of the
other party, no termination will be deemed to have occurred. For
purposes of this agreement, material breach shall be defined as
a) material and repeated breach of any payment or delivery term
of this agreement not otherwise excused in the agreement or by
the agreement, c) failure to comply with warranty provisions of
the Agreement, d) any intentional or reckless infringement of
intellectual property rights of either company (including but not
limited to rights in confidential information, patent, trademark,
trade secret, copyright or software rights granted pursuant to
license), e) intentional or reckless behavior resulting in
violation of law, f) sale of product not consistent with the
intent of this Agreement (e.g. Xxxx sale of printers without
appropriate value added or HP disregard of exclusivity
provisions), or g) consistent failure to fulfill support
obligations set out in the Agreement.
B. Neither party will be liable to the other for delays in the
performance of or completion of this Agreement if the delay is caused
by strike, riots, wars, government regulations, acts of God, fire,
flood, or other causes beyond its reasonable control. If the delay
continues 90 days or longer, or it becomes obvious that the delay will
continue for 90 days, then either party shall have the option,
exercisable by written notice, to cancel all or any portion of orders
placed hereunder without charge or liability.
C. If either party gives the other notice of termination or advises the
other of its intent not
9
to renew this Agreement, HP may require that Reseller pay cash in
advance for additional shipments during the remaining term,
regardless of Reseller's previous credit status, and may withhold
all such shipments until Reseller pays its outstanding balance.
D. Upon termination or expiration of this Agreement for any reason,
Reseller will immediately cease to be an authorized HP Reseller and
will refrain from representing itself as such and from using any HP
trademark or trade name.
E. Upon any termination or expiration, either party may required that HP
repurchase from Reseller any HP Products on HP's then current Product
Exhibits, which are in their unopened, original packaging and
marketable as new merchandise. The repurchase price shall be the
lower of either the Net Reseller Price on the date of termination or
expiration or Reseller's original purchase price, in each case less
any promotional or other discounts or price protection or other credit
extended by HP to Reseller for the Product. Reseller should contact
its HP sales representative for information about the items eligible
for repurchase and instructions for their return at HP's expense.
F. The indemnities provided in this Agreement will survive termination or
expiration of this Agreement.
18. AMENDMENT
A. HP may, from time to time, add products to or delete them from the
product Exhibits, change its list prices and discounts, or implement
promotional or other programs, at HP's discretion, upon reasonable
notice to Reseller.
B. Each party agrees that the other has made no commitments regarding the
duration or renewal of this Agreement beyond those expressly stated in
this Agreement.
19. GENERAL
A. Neither party may assign any rights or obligations in this Agreement
without the prior written consent of the other party. Any attempted
assignment will be deemed void.
B. Neither party's failure to enforce any provision of this Agreement
will be deemed a waiver of that provision or of the right to enforce
it in the future.
C. This Agreement including the attached Addenda and associated Product
Exhibits, and any associated software license contains the entire
understanding between the parties relating to its subject matter. HP
hereby gives notice of objection to any additional or inconsistent
terms set forth in any purchase order or other document issued by
Reseller. No modification of this Agreement will be binding on either
party unless made in writing and signed by both parties.
D. If all or any part of a term of this Agreement is held invalid, the
balance of the Agreement shall remain in effect as stated.
E. No U.S. Government procurement regulations will be deemed included in
this Agreement or binding on either party unless specifically accepted
in writing and signed by both parties.
F. This Agreement will be governed by the laws of the State of
California.
20. NOTICES
All notices and demands under the terms of this agreement shall be in writing,
delivered by fax, personal, first class mail postage prepaid, or registered
mail to a location set forth in this Agreement or to HP at 0000 Xxxxxx
Xxxxx Xxxxxxxxx, X.X. Xxx 00000, Xxxxx Xxxxx, Xxxxxxxxxx 00000-000 or to
the assigned local HP sales representative.
10
U.S. LaserJet MICR Solution DIRECT
VALUE-ADDED RESELLER ADDENDUM
XXXX SYSTEMS, INC.
------------------------------- --------------------------------------------
Company Name (Including DBA's) Agreement
0000 XXXXX XXXXXXX XXXXXX
-------------------------------------------------------------------------------
Xxxxxxx
XXXXX XXX XX 00000 (000) 000-0000
--------------------------------- -----------------------------------------
City State Zip (Area Code) Telephone #
(000) 000-0000
---------------------------------
Fax #
1. APPOINTMENT
HP appoints the reseller named above as an exclusive LaserJet MICR Solution
Value-Added Reseller ("VAR") for the length of this contract period.
2. APPROVED LOCATIONS
A. VAR's distribution center location(s) are listed on Exhibit C. VAR
must own more than forty percent of its business at each approved
location. Any additions to this list will be promptly provided to HP.
B. All VAR's, sales, advertising, and promotional activities for HP
Products must be conducted from Selling Locations listed on Exhibit C.
3. RESELLER SALES
A. VAR may sell HP Products through the company names and selling
locations set out on Exhibit C.
B. VAR may not sell HP Product to other resellers for stock balancing.
C. VAR may sell HP Products internationally to the countries set out on
Exhibit D as part of a MICR configuration to authorized international
resellers subject to the following conditions:
1. VAR will purchase the international version HP Products from HP
under its US LaserJet MICRO Solution Direct Value-Added Reseller
Agreement existing on the date of order at HP's applicable US
domestic price.
2. VAR must remanufacture any international version HP Product to be
exported outside the United States in a MICR configuration.
3. Re-manufacture will be performed at VAR's remanufacture facility
based in the United States.
4. VAR will export the re-manufactured configuration discussed here
only to the countries listed on Exhibit D.
5. VAR shall be responsible for export permit requirements, export
reporting, costs, duties, taxes, and freight, and for conforming
to US export regulations. Customer will not export products or
technical data in violation of applicable export regulations.
6. HP shall have the right to inspect the records of VAR to verify
such information on reasonable notice, not to be less than two
business days.
7. VAR agrees to extend product warranty as required by law.
8. VAR agrees that international product purchases will not be
entitled to accrual of co-op or MDF funds. All parties agree
such purchases are not eligible for stock adjustment or price
protection.
9. VAR agrees to promptly notify HP of any additions or deletions to
the list of countries set out on Exhibit D.
4. END-USER SALES
A. VAR may sell HP Products only through the company names and selling
locations set out on Exhibit C to end-user customers (including
government and corporate users as well as individual users).
B. All HP Products purchased by VAR will be incorporated into a complete
MICR system, marketed as such, and sold only with substantial value
added in one of the following ways:
1) a. Through the integration of the HP Products into a complete
system providing a total solution to customers in a specific
market recognized and agreed to by HP, where sale of the
system depends on VAR's specialized knowledge of those
customers and their needs.
b. Through addition of a substantial amount of other software
and/or hardware that VAR manufactures, or develops, or
acquires added value in this form must represent a
significant functional enhancement to the HP Products
included in the system. If the added value consists
exclusively
11
of the software it must solve a major application need of
the end-user.
c. As an addition or consumable to any product or system sold
under conditions specified in sections a or b, above.
2) VAR will not sell standard HP LaserJet printers into the general
office printer market without their MICR value added solution.
The VAR value added is reflected in this agreement and set out in
Exhibit E.
5. VAR RESPONSIBILITIES
A. FACE TO FACE SUPPORT
VAR must sell value added HP Products on a face-to-face basis and must
provide pre-sale and post-sale support for its customers sufficient to
ensure a high level of customer satisfaction with VAR's value added
support capabilities.
B. TRAINING
VAR will ensure that its employees complete any required training
courses designated by HP.
C. PRIMARY CONTACT
VAR will identify and keep current a primary and secondary support
contact for both marketing communications and post-sales technical
support at each approved location.
D. NEW PRODUCT INTRODUCTIONS
VAR will not sell, advertise, promote, display, or disclose the
features, availability or price of any new HP product before HP's
public announcement of that product.
E. PRODUCT SERVICE AND CUSTOMER SUPPORT
1) VAR assumes responsibility for repairs and all support of VAR
private labelled products within end user customer locations.
2) HP may, at its discretion, require VAR to qualify to perform
in-warranty repairs for HP Products in order to remain eligible
to carry them. However, VAR is not authorized to establish,
market or promote themselves as service providers, authorized or
otherwise, for HP labelled products. Service of HP labelled
products is understood to be authorized only as an adjunct to
authorized sales under this Agreement.
3) VAR assumes full responsibility for warranty and service of any
existing end user installed LaserJet printer upgraded by the VAR
to their value added product solution unless otherwise expressly
agreed to in writing by HP's marketing manager for Boise Printer
Division.
4) VAR agrees to offer and provide to its end-users customers
adequate support for its value-added solution(s). This support
must be offered in a format that ensures a high level of customer
satisfaction with the VAR's value-added support capabilities.
F. ADVERTISING
VAR may advertise its value-added solutions using HP Products
nationwide. Each advertisement must focus on VAR's value-added
solution. Such advertisements may, however, refer to the use of HP
component parts.
6. POLICIES AND PROGRAMS
A. From time to time, HP may offer or change HP policies and VAR
Programs.
7. NONBINDING FORECASTING
A. Regular monthly 18 month rolling forecasts will be expected of VAR on
all product listed in the associated Product Exhibit. These are
nonbinding forecasts except as set forth below.
8. BINDING FORECASTING ON MICR TONER PRODUCT
A. VAR will not be held to a binding forecast for the first six months of
this agreement. During that 6 month period, VAR agrees to work with
HP to provide accurate forecasts. After the first 6 months VAR is
required to purchase amounts set out in six month rolling forecasts,
which are subject to the flexibility percentage set out in the
attached Exhibit B. Changes outside these parameters must be agreed
to in writing by HP.
9. INDEPENDENT SOURCING
A. At HP's discretion, technical schematics will be provided to VAR upon
written request for sourcing by VAR from independent technology
sources. However, HP reserves the right to limit what technical
schematics are provided.
10. TOOLS AND DEVELOPMENT ENVIRONMENT
A. HP will share information about development environment with VAR.
B. HP will provide VAR with support for HP customer developed products
and development tools from date of product release until three
12
years after HP discontinues the custom products and development tools.
11. PRODUCT SUPPORT LIFE
A. HP is expected to provide technical and service part support for HP
products from date from first procurement for HP until three years
after product is discontinued by HP.
B. VAR is expected to provide technical and service part support to Var's
customer for HP products from date of first procurement from HP until
three years after product is discontinued by HP.
12. PRIVATE LABELING & LOSS OF HP PRODUCT IDENTITY
A. The product purchased hereunder are for OEM purposes. VAR will
replace HP product identity (except as otherwise required in Exhibit
E) with VAR's product identity. Identity loss will include, but not
be limited to, HP product front panel printer brand and model names,
and HP product serial numbers on HP product rear panel serial number
tags and all reference to HP in documentation (except as otherwise
required to identify intellectual property rights). VAR may advertise
"HP components" but VAR may not advertise that HP products are offered
for sale.
13. ADVANTAGE AND PROMOTIONAL FUNDS
A. VAR shall not be entitled to Advantage funds or promotional
allowances, facilities or services from HP in connection with this
Agreement.
14. PROMOTION AND EXCLUSIVITY
A. VAR recognizes that HP expects VAR to actively promote HP products
sold under this agreement. To ensure such promotion, VAR agrees that
as set forth in Paragraph 1 of this Agreement, VAR shall not offer for
sale products competitive with the HP products described in the
Product Exhibit. VAR also agrees to meet the Shipment Milestones as
set out in Exhibit F.
13
Exhibits to the MICR Solution Reseller Agreement
Exhibit A
[Portions of this Exhibit A have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933, as
amended. A copy of the Agreement with this Exhibit A intact has been filed
separately with the Securities and Exchange Commission]
Product Discount Schedule: Schedule A Schedule B Schedule C Schedule D
X % X % X % X
--- --- --- --------
Approved Product List:
--------------------------------------------------------------------------------------------------
Discount Schedule Product Schedule Product Description Product Price List
--------------------------------------------------------------------------------------------------
A C2037A #ABA LJ 4 Plus 120 volt CPL
A C2037A #ABB LJ 4 Plus 220 volt CPL
C C3130A 1 Mbyte SIMM CPL
C C3131A 2 Mbyte SIMM CPL
C C3132A 4 Mbyte SIMM CPL
C C3133A 8 Mbyte Simm CPL
C C3146A 16 Mbyte Simm CPL
C C3129A #ABA LJ 4 Plus XX XXXX CPL
C C2082B LJ 4 Plus Envelope Feeder CPL
C C2083D 500 sheet tray & assembly CPL
C C2084C 500 sheet tray CPL
C C2084D 500 sheet repl. tray CPL
C C2085D 250 sheet repl. tray CPL
C C2085E 250 sheet repl. tray CPL
C C2085F 250 sheet repl. tray CPL
C* 92298X MICR Toner $ X
D* 36595A #115 2MB OTP SIMM Custom SIMM
B C3150A #ABA LJ 5P 120 volt CPL
B C3150A #ABB LJ 6P 220 volt CPL
B C3141A #ABA LJ 4V 120 volt CPL
B C3141A #ABB LJ 4V 220 volt CPL
B C3916A #ABA LJ 5 120 volt CPL
B C3916A #ABB LJ 5 220 volt CPL
B C3980A #ABA LJ 6P 120 volt CPL
B C3980A #ABB LJ 6P 220 volt CPL
B C3982A #ABA LJ 6MP 120 volt CPL
B C3982A #ABB LJ 6MP 220 volt CPL
B C3166A #ABA LJ 5SI 120 volt CPL
B C3166A #ABA LJ 5Si 220 volt CPL
C J2550A #ABA JetDirect/10BaseT CPL
C J2552A #ABA JetDirect/10BaseT, BNC, LocalTalk CPL
C C3903A LaserJet 5P Toner CPL
C 92291A LaserJet 4Si Toner CPL
C C3909A LaserJet 5Si Toner CPL
C C3909A LaserJet 5Si Toner CPL
C C2975A Printer Cabinet CPL
C C3762A Duplex Unit CPL
C C3763A 2,000-Sheet Input Tray CPL
C C3764A Multi-Bin Mailbox CPL
C C3765A Envelope Feeder CPL
C C3768A Paper-handling controller board CPL
C C2965A 420-Mbyte disk drive CPL
C C3920A Duplex-LJ5/5M/5N CPL
C C3921A 500-sht fdr-LJ5/SM/5N CPL
C C3927A Envelope fdr-LJ5 CPL
* These are MICR products and are subject to exclusivity.
X Information has been redacted pursuant to a request for confidential
treatment.
Exhibit B
[Portions of this Exhibit B have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933, as
amended. A copy of the Agreement with this Exhibit B intact has been filed
separately with the Securities and Exchange Commission.]
------------------------------------------------------------------------------------------------------
Planning Month in Forecast: (Forecast is Month 1 Month 2 Month 3 Month 4 Month 5 Month 6
received in 0)
------------------------------------------------------------------------------------------------------
Maximum increase/Decrease: (vs. same X% X% X% X% X% X%
calendar month in previous forecast)
------------------------------------------------------------------------------------------------------
X Information has been redacted pursuant to a request for confidential
treatment.
Exhibit C
[Portions of this Exhibit C have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933, as
amended. A copy of the Agreement with this Exhibit C intact has been filed
separately with the Securities and Exchange Commission.]
Distribution, US Reseller, and International Reseller Locations
WORLDWIDE DISTRIBUTION CENTERS Mechanized Methods
------------------------------ Xxx Xxxxxxxxx
X.X. Xxxxx 00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxxxx Xxxxxxxxxxxx
0000 X. Xxxxxxx Xxxxxx 0000, Xxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Secure Data Systems
0 Xxxxx Xxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000 0000 Xxxx 00xx Xxxxxx
Xxxxx 000
11 C Valentia Avenue Lugarno, Australia Xxxxx, XX 00000
SIMA
WORLDWIDE STOCKING & RESELLER LOCATIONS Xxxxxxxxx Xxxxxx
--------------------------------------- 21, place de la Loire SILIC
X 176 92453 Rungis Cedex,
BDC France
Xxxxxx Xxxxx Xxxxxxxxx
Xx. Xxxxxx 000-00 Xxxxxx Xxxxxxxx Xxxxxxxx, XXX.
Xxxxxxxx, Xxxxx Xxxxx Xxxxx Xxxxxxx Xx
Xxxxxxx 000 - Xxxxxxx
Xxxx Card Toppan Xxxxx Rio de Janeiro, Brazil CEP
Xxxxxx Xx 22740
3/F China Insurance Xxxx.
00 Xxxxxxx Xxxx WORLDWIDE RESELLER OR SALES AGENTS
Tsimshatsui, KLN, Hong Kong ----------------------------------
X
Equifisa Gemadec S.A.
Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx Xxx Xxx Xxxxxxx 000 Boulevard Xxxxxxxx X
Xxxxxxxx Xxxxxx Xxxxxxxxxx 00, Xxxxxxx
Parque Boyaca
Caracas, Venezuela 1010-A Xxxxxxx Sygne
Xxxxx Plaza
Guillamet, S.A. 0000 X.X. 00xx, Xxxxx X 000
Xxxxxxx Xxxxxxxxxx Xxxxxxx 3 Xxxxx, XX 00000
Xxxxxxxxx, Xxxxx 00000
Pacifique Technologie
Guillamet, S.A. 65 Avenue de Marechal XXXX
Xxxxxxxx Guillamet P.O. Box 65 - NOUMEA
Paseo de la Castellana, 123 New Caledonia
Xxxxxx, Xxxxx 00000
Data Card France
Inotech Systems LTD. Tour Gallieni XX-00 Xxxxxx
Xxxxx Xxxxxxxxx Xxxxxxxx 00000 Bagnolet,
Xxxx 00 Xxxxxx Xxxx France
Xxxxxxxxxx Xxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxx XX0 0XX Sistemas Analiticos
Apartado 6244
Marinter Systems PTY LTD. Xxxxxx Xxxxxxx San Xxxx 1000
11 C Valentia Avenue Lugarno, Australia Costa Rica
X Information has been redacted pursuant to a request for confidential
treatment.
Exhibit D
INTERNATIONAL COUNTRIES FOR EXPORT:
Argentina
Australia
Brazil
Canada
Chile
China
Colombia
Costa Rica
Ecuador
El Xxxxxxxx
Xxxxxxx
Finland
France
Germany
Hong Kong
India
Indonesia
Israel
Italy
Japan
Jordan
Korea
Mexico
Morocco
New Caledonia
New Zealand
Norway
Oman
Peru
Philippines
South Africa
Spain
Sweden
Thailand
Turkey
Venezuela
Exhibit E
Value-added by Xxxx FOR THE LASERJET 4 PLUS is in the following areas:
warranty, service, two tier distribution, software and hardware customization,
Xxxx identify on products, product liability responsibilities assumed, Xxxx will
conduct product testing on each printer with a MICR configuration before the
solution is shipped, Xxxx manuals, Xxxx will provide pre/post sale consulting on
MICR technology, and Xxxx will maintain product inventory sufficient to fulfill
customer needs.
VALUE-ADDED BY XXXX FOR THE LASERJET 4P. 5P. 4V. 5. AND 5SI IS IN THE FOLLOWING
AREAS: (1) WARRANTY AND SERVICE FOR ALL MICR TONER AND TECHNOLOGY RELATED
PROBLEMS THAT AFFECT PRINTER PERFORMANCE, (2) WARRANTY AND SERVICES FOR MICR
TONER CARTRIDGES AND SOFTWARE CUSTOMIZATION, (3) XXXX SERVICE LABEL ON PRINTERS
AND IN USER'S GUIDE MANUAL, (4) XXXX WILL PROVIDE PRE/POST SALES CONSULTING ON
MICR TECHNOLOGY.
Exhibit F
SHIPMENT MILESTONES
[Portions of this Exhibit F have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933, as
amended. A copy of the Agreement with this Exhibit F intact has been filed
separately with the Securities and Exchange Commission]
SHIPMENT MILESTONES
------------------
The following shipment milestones (VAR will have taken delivery of said
quantities by the established dates) will be in effect in order for VAR to
maintain exclusive rights to resell HP MICR LaserJet printers. If milestones
are not met by the dates specified, the Agreement will remain in effect but
the exclusivity granted to the VAR to sell MICR LaserJet printers may be
removed at the discretion of HP. If HP chooses to withdraw exclusivity under
the Agreement then the VAR will no longer be bound to exclusivity sell
LaserJet printers, unless HP restores exclusivity to the VAR.
Milestone 1 - July 1, 1996 through June 30, 1997 ( X printers)
-----------------------------------------------------------------
Milestone 2 - July 1, 1997 through June 30, 1998 ( X printers)
-----------------------------------------------------------------
Milestone 3 - July 1, 1998 through March 31, 1999 ( X printers)
-----------------------------------------------------------------
X Information has been redacted pursuant to a request for confidential
treatment.
