TeleMatrix
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CONFIDENTIAL
DISTRIBUTOR AGREEMENT
AGREEMENT made as of the 18th day of August, 1999 by and between and TeleMatrix,
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Inc. a corporation duly organized and existing under the laws of the State of
Florida with its principal office at 0000 Xxxxxx Xxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 hereinafter called the "Supplier" or "TeleMatrix" and AlphaNet
Hospitality Systems Inc. a corporation duly organized with its principal office
at 000 Xxxxx Xxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 hereinafter called,
"AlphaNet".
WITNESSETH:
Whereas, the Supplier is desirous of appointing ALPHANET a non-exclusive
Distributor and ALPHANET is desirous of accepting such appointment.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements herein contained, Supplier hereby appoints ALPHANET a non-exclusive
distributor and ALPHANET accepts appointment for the sale of products or
material (hereinafter "Material") furnished by Supplier under this agreement on
EXHIBIT A.
1. TERMS OF THE AGREEMENT. This agreement shall be effective on the date
hereof and shall extend for a period of six (6) months thereafter. This
agreement shall automatically be renewed for one (1) year periods, on
the same terms and conditions, subject to the right of either party to
terminate the Agreement pursuant to paragraph eighteen (18).
2. CONDUCT OF BUSINESS. So that the relationship contemplated by this
agreement shall be mutually advantageous and in recognition of the
expertise and commitment necessary for the effective marketing and
support of the product:, ALPHANET agrees to continually use its best
efforts to encourage and develop the full sales potential for the
products, to employ competent, well-trained sales personnel to meet the
demands and needs for marketing and support of the products, and to
encourage the purchase of the products by ALPHANET customers to the
best of ALPHANET's ability.
3. TERRITORY. This appointment applies throughout the United States of
America or in accordance with schedule(s) attached and made part hereof
which may be amended by mutual agreement as required.
4. TITLE. Title to all Material covered by the Agreement shall pass to
ALPHANET upon delivery at the destination designated by ALPHANET and
shall be at the risk of Supplier until title thereto shall have passed
as herein provided. Routing of shipments may be specified by ALPHANET
when ALPHANET is liable for transportation charges. Transportation
costs prepaid by Supplier and added to ALPHANET invoice will be at the
lowest net cost after all negotiated discounts.
ALPHANET Distributor Agreement
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TeleMatrix
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CONFIDENTIAL
5. PRICE. All purchases of Material made by ALPHANET shall be upon the
current terms and prices established by Supplier from time to time.
Furthermore, ALPHANET shall be given written notice thirty (30) days in
advance of any price change and shall be supplied with price sheets
promptly upon publication or revision. See attached EXHIBIT A. In the
event of an increase in the price of said Material for which orders
shall have been placed by ALPHANET, it may, as its option, cancel such
orders in whole or in part within thirty (30) days after receipt of the
announcement of such price increase or take delivery within sixty (60)
days of all pending orders at the previous existing price.
6. TERMS OF PAYMENT. Shall be due Net 30. Invoices are to be paid in United
States dollars.
a) Failure to make payment within thirty (30 days due date may
result in the loss of any freight allowances previously
allowed on this purchase.
b) Upon default by Buyer to make its required payment, the whole
of the Buyer's indebtedness shall immediately become due and
payable together with interest at the rate of 1 1/2% per month
on all overdue payments.
c) Upon default by Buyer to make its required payment, the costs
of collection, including reasonable attorney's fee whether or
not suit is instituted to enforce collection shall be due and
payable immediately.
d) Invoices not paid by due date will be subject to an interest
charge of 1 1/2% per month. 18% Annual Percentage Rate.
7. ORDERING. ALPHANET shall order products from TeleMatrix by issuing a
purchase order specifying the quantity of products, the desired
delivery date, shipping method, and the location to which product
should be shipped. TeleMatrix understands and agrees that ALPHANET
purchases from TeleMatrix for the purpose of resale, and that resale
delivery commitments will be given to ALPHANET customers. In any case
where delivery from TeleMatrix to ALPHANET is delayed more than thirty
(30) days for complete or partial orders from expected delivery date,
ALPHANET shall have the right to cancel the order without charge.
8. FREIGHT. Freight charges will be calculated from shipper's dock with
freight prepaid and billed. Freight will be billed at TeleMatrix's
actual discounted rate, and when ALPHANET has a better freight rate,
TeleMatrix will utilize the carrier designated by ALPHANET and specify
to the shipper that the billing will be to ALPHANET. When mutually
agreed upon, freight may be prepaid and allowed. Deviations from this
policy (such as air shipments) must be specified on ALPHANET's purchase
order or documented by an authorized ALPHANET employee or agent.
ALPHANET Distributor Agreement
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CONFIDENTIAL
9. CONSEQUENTIAL OR SPECIAL DAMAGES. Notwithstanding disclaimers of
liability for consequential or special damages contained in Supplier's
warranty to the contrary. Supplier hereby agrees to defend and hold
ALPHANET harmless from all claims and suits for consequential or
special damages arising from Material unless due to the negligence of
ALPHANET employees, agents or servants, provided ALPHANET shall not
settle claims for consequential or special damages brought by their
customers or others, without Supplier's authorization.
10. SUPPLY. Supplier will make every reasonable effort to furnish a
sufficient quantity of said Material to meet the resale requirements of
ALPHANET, in exchange for ALPHANET stocking reasonable amount for their
needs based on previous sales.
11. CREDIT DUE. In the event ALPHANET has a credit due from TeleMatrix,
TeleMatrix must issue credit or provide written substantiation for
denying the issuance of such credit within thirty (30) days after the
request by ALPHANET. In the event TeleMatrix fails to issue the credit
or provide substantiation for the refusal, ALPHANET shall hereby be
granted the right to offset the value of credit against ALPHANET
accounts payable to TeleMatrix.
12. PATENT AND TRADEMARKS. Supplier hereby warrants that all of the
Material sold hereunder by it to ALPHANET, its successors or assigns,
are and will be free and clear of infringement of any valid patent or
trademark; and Supplier agrees to defend any and all actions and suits,
alleging any such infringement, that may at any time be brought against
ALPHANET, or its successors or assigns, or any of its or their
customers, or others for whom it or they may act as agent, to pay all
costs and expenses incurred and to satisfy all judgments and decrees
against the defendant or defendants in such actions or suits, and to
save ALPHANET its successors and assigns, and its and their customers
and those for whom ALPHANET, or its successors or assigns, may act as
agent, harmless from all loss, damage, expense and liability on account
of any such infringement; provided, that the Supplier shall have prompt
ntice of the commencement of such action and full opportunity to defend
the same.
13. PRODUCT LIABILITY. Supplier will furnish ALPHANET with a Certificate of
Insurance, evidencing Product Liability Coverage with protection
extending to ALPHANET under a Vendors Endorsement. Such insurance shall
cover all products sold by Supplier to ALPHANET and shall be maintained
in companies and for such amounts as are sufficient. In the event
ALPHANET receives a claim that the product or any part thereof has
caused damage or injury to others, ALPHANET shall immediately notify
TeleMatrix in writing of all such claims.
14. ENVIRONMENTAL LIABILITY. For purposes of this Agreement, "Hazardous
Substances" shall be defined as any Material that; (a) is a hadardous
substance, wase, material, or chemical; or (b) includes any extremely
hazardous substance; toxic substance or chemical; radioactive material;
ALPHANET Distributor Agreement
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CONFIDENTIAL
petroleum oil; asbestos-containing material; or any other contaminant
or pollutant. If any of the Material to be sold hereunder is considered
a Hazardous Substance, or might otherwise be subject to regulation
under any environmental, health or safety laws or regulations, Supplier
will notify ALPHANET in writing prior to the purchase of such Material
and provide instructions on the proper use, handling and disposal of
the Material. Within 20 days after receipt of notice that the Material
to be purchased contains Hazardous Substances, ALPHANET may, at its
option, cancel such orders.
15. Supplier agrees to indemnify, defend and hold harmless ALPHANET, its
successors, assigns, agents or employees from and against any and all
claims, liabilities, damages, costs, suits, actions, expenses
(including, without limitation, attorney's fee), judgments, penalties,
and losses arising out of or in any way related to any environmental
contamination, injury or damage to natural resources or property, or
injury to or death of persons, resulting from or related to the
release, spilling, leaking, discharging, dumping, use, storage,
treatment or disposal of the Material provided by Supplier, unless
caused solely by the negligence or willful misconduct of ALPHANET its
agents or employees.
16. WARRANTIES. TeleMatrix's warranties and return authorization procedures
are set forth in EXHIBIT C which is attached hereto and incorporated by
reference herein. However, the parties agree that the warranties,
whether implied or limited, shall be for the benefit of ALPHANET and
ALPHANET's customers. Any time limit upon warranties shall begin to run
and be calculated from the date of invoice to customer. Notwithstanding
any warranty limitations, ALPHANET agrees to accept return for credit
any item that constitutes an "out of box failure", i.e., any failure or
defect which becomes apparent to the customer of ALPHANET immediately
or within ten (10) days of the opening of the container in which the
defective item is contained.
17. USE OF TRADEMARKS. During the terms of this Agreement or any extension
thereof, ALPHANET may use (only with TeleMatrix's written
authorization) the trademark of TeleMatrix or any of TeleMatrix's
trademarks, insignias, logos, or proprietary marks in connection with
ALPHANET's sales, advertisements, and promotion of the product.
ALPHANET acknowledges that these trademarks and logos are valuable
assets of TeleMatrix and ALPHANET's use of such proprietary marks shall
be in accordance with TeleMatrix's direction and policies. NORTH
AMERICAN specifically disclaims any right in any of the proprietary
marks and shall not use the proprietary marks as part of the business
name of ALPHANET.
18. PROMOTIONAL EXPENSES. To assist ALPHANET in promoting sales of the
product, TeleMatrix shall furnish ALPHANET at TeleMatrix's expense,
catalogs, training documentation, printed technical information, data
ALPHANET Distributor Agreement
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TeleMatrix
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CONFIDENTIAL
sheets, and other advertising materials in reasonable quantities as
requested by ALPHANET. TeleMatrix shall provide training / support to
fully acquaint ALPHANET employees with the product. TeleMatrix shall
also consider working in cooperation with ALPHANET to conduct trade
shows, seminars, workshops to assist in the promotion of the product.
19. NON-ASSIGNABILITY. This agreement shall not be transferable or
assignable by either party hereto without the written consent of the
other party. Until such written consent is obtained, the party
transferring or assigning this agreement shall not be relieved of the
obligations hereunder.
20. TERMINATION. The distributorship hereby created may be terminated only
(a) by an agreement in writing duly signed by the parties hereto; or
(b) by either party at will, with or without cause, upon not less than
ninety (90) days notice in writing given by certified mail or overnight
letter to the other party; or (c) by either party hereto upon one (1)
day's notice in the event the other-party hereto attempts to assign
this agreement or any rights thereunder without the other party's
written consent or either party ceases to function as a going concern
or to conduct its operations in the normal course of business, or a
receiver is appointed or applied for by the party, or a petition under
the Federal Bankruptcy Act is filed by or against either party, or
either party makes an makes an assignment for the benefit of creditors.
21. REPURCHASE AFTER TERMINATION. Within thirty (30) days after the
termination of the distributorship hereby created, (a) if said
termination is instituted or caused by ALPHANET, Supplier may, at its
option repurchase from ALPHANET any or all Material and all repair and
replacement parts therefore which are new and unused of which ALPHANET
is then the owner, at the net price paid by ALPHANET or at Supplier's
then current net price to distributors generally, whichever is lower,
to bear all return transportation costs; or (b) if termination is
instituted or caused by Supplier, then Supplier shall be obligated to
repurchase all of the material and all the repair and replacement parts
from ALPHANET at the said price set forth above, the Supplier to bear
all return transportation costs if requested within ninety (90) days.
22. DELIVERIES AFTER TERMINATION. After a date for termination of the
distributorship hereby created shall have been established by notice or
agreement, or within ninety (90) days prior to the expiration of said
distributorship (unless another distributorship agreement in writing
relating to said Material shall then be in effect), the Supplier shall
be obligated to deliver and ALPHANET shall be obligated to accept only
such of the Material as ALPHANET shall have ordered from the Supplier
prior to such establishment of a date for termination or prior to
thirty days before such date of expiration, as the case may be;
provided, however, that in no event shall the Supplier be obligated to
deliver, or ALPHANET be obligated to accept any of such Material after
the date of such termination or expiration.
ALPHANET Distributor Agreement
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CONFIDENTIAL
23. SALES AFTER TERMINATION. The acceptance of any order from, or the sale
of any Material to ALPHANET after the termination or expiration of the
distributorship hereby created shall not be construed as a renewal or
extension thereof nor as a waiver of termination, but in the absence of
a new written agreement all such transactions shall be governed by
provisions identical with the provisions of this agreement.
24. NO LIABILITY FOR TERMINATION. Neither party, shall be reason of the
termination or non-renewal of distributorship of said Material, be
liable to the other for compensation, reimbursement or damages on
account of the loss of prospective profits on anticipated sales, or on
account of expenditures, investments, leases or commitments in
connection with the business or goodwill of the other.
25. FAILURE TO ENFORCE. The failure of either party to enforce at any time
or for any period of time provisions hereof shall not be construed to
be a waiver of such provisions or of the right of such party thereafter
to infer each and every such provision.
26. NO ORAL AGREEMENT. Any amendments to this agreement must be in writing
and executed by both parties.
27. CONFIDENTIALITY. TeleMatrix and ALPHANET agree that during the term of
this agreement each will disclose to the, other proprietary information
regarding matters dealing with actions necessary to carry out the terms
of the Agreement, except information which the party is precluded from
disclosing under applicable law or regulation or by valid and binding
agreements with third parties. The parties agree that each will keep
the others proprietary information and all related matters confidential
and prevent disclosure of said information by its agents, employees, or
representatives.
28. RELATIONSHIP OF PARTIES. This Agreement in any way does not create the
relationship of joint venture, partnership, or principal and agent
between TeleMatrix and NORTH AMERICAN. Neither shall have the power or
ability to pledge the credit of the other not to bind the other nor to
contract in the name of or create a liability against the other in any
way for any purpose.
29. TERMINATION OF PRIOR AGREEMENTS. This agreement terminates and
supersedes all prior agreements between the parties, except those
listed below which shall continue in full force and effect:
EXCEPTIONS
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ALPHANET Distributor Agreement
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CONFIDENTIAL
30. HEADINGS. Headings of this agreement are inserted solely for the
purpose of convenience of reference and are in no manner to be
construed as a part of the agreement.
31. ENTIRE AGREEMENT: WAIVERS. This Agreement sets forth the understanding
between the parties hereto and supersedes all prior understanding in
connection thereof. No waiver of any provision of this Agreement shall
be deemed or constitute a waiver of any other provision herein nor
shall a waiver be construed as a continuing waiver.
32. CORPORATE AUTHORITY. The persons executing this Agreement warrant that
they have the right, power, legal capacity, and appropriate authority
to enter into this Agreement on behalf of the entity for whom they
sign.
33. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
34. NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and shall be served upon the other by express carrier and
shall be considered delivered two (2) business after deposit with the
express carrier, whether or not the addressee signs for such. Such
notices may alternatively be made by facsimile transmission, or by
express mail with confirmation by express carrier.
If to TeleMatrix:
Xxxx X. Xxxxxxxxx
President
TeleMatrix, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Tel. 719/000-0000 / Fax. 719/000-0000
If to AlphaNet:
DJ Vallauti
Vice President, Marketing & Business Development
000 Xxxxx Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Tel. 201/000-0000 / Fax. 201/000-0000
IN WITNESS WHEREOF; the parties hereto have caused these presents to be executed
by a duly authorized officer as of the day and year first above written,
For TeleMatrix, Inc. for AlphaNet
By:/s/Xxxx X. Xxxxxxxxx By:/s/Xxxx Xxxxxxxx
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Xxxx X. Xxxxxxxxx Xxxx Xxxxxxxx
President President & CEO
ALPHANET Distributor Agreement
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Exhibit A
TeleMatrix
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AlphaNet Hospitality Systems, Inc.
Effective Date: July 15, 1999
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XxxxxXxx Xxxx.
P/N Model Model Description Price Retail Price
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97149 9002MWD5 5 Memory, two-line 900MHz cordless telephone w/speaker
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97359 9002MWD 10 Memory, two-line 900MHz cordless telephone w/speaker
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90004000 Amenities Package (see below)
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Accessories/Spare Parts
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90099001 One-color customized faceplates package
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90099002 Two-color customized faceplates package
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90099003 Three-color customized faceplates package
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90099900 Additional customized faceplates (if in stock)
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90099900 Factory Pre-programming for the Speed Dial Keys
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90042056 Plastic Overlay for 9002MWD5
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90042057 Plastic Overlay for 9002MWD
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90099005 Generic Paper Faceplate
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Amenities Package Includes:
1. One-link Color Faceplates
2. Factory Pre-Programming of the Speed Dial Keys
3. Regular Ground transportation.
4. Minimum order of twenty-five (25) sets per model per destination.
Note: TeleMatrix's experience with amenities packages indicates that the
Amenities Package is most effective when passed through or passed through with
minimum xxxx-up to the hotel.
AlphaNet OEM Agreement
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TeleMatrix
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CONFIDENTIAL
EXHIBIT C - (PART 1)
Warranty
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TeleMatrix offers a manufacturer's limited two-year warranty for its products
(Warranty Statement below). All warranty work must be sent to the following:
Service Center
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TeleMatrix, Inc.
Attn. Repair Department
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Tel. 800/000-0000 Facsimile. 719/638-8815
Return for Credit (RMA)
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1. No return will be accepted without written or oral authorization by an
employee of TeleMatrix and return number label.
2. Phones returned for credit without a TeleMatrix return authorization
signed by an employee of TeleMatrix remain the Buyer's property even if
delivered to our premises. They are not acceptable in lieu of payment
of any outstanding invoices. All such items will be returned to the
Buyer. If the Buyer refuses the return, the Buyer will be charged
storage for the units at a rate of 1% of the value of the phones per
week from the date of original receipt of the goods by TeleMatrix.
3. Phones received for credit in a damaged condition due to improper
packing by the Buyer will be returned without an issuance of credit.
4. Phones damaged in shipment to the Buyer or from the Buyer will not be
accepted for credit. Claims must be made against the carrier by the
Buyer.
5. Phones returned without boxes or accessories will be subject to a
refurbishing charge of not less than $6.00 per phone.
6. All phones returned to TeleMatrix which are designated as defective,
but are found not to be defective, as determined by our test criteria,
or which are out of warranty will remain the Buyer's property. Those
phones will not be acceptable for credit against the Buyer's account
even if returned with a TeleMatrix return authorization.
7. The waiver by the Seller of a breach of any condition of this agreement
by the Buyer shall not operate or be construed as a waiver of any
subsequent breach by the Buyer.
ALPHANET Distributor Agreement
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CONFIDENTIAL
EXHIBIT C - (PART 2)
STATEMENT OF LIMITED WARRANTY
TeleMatrix, Inc. (TeleMatrix) warrants to its customers that products
manufactured by TeleMatrix are free from defects in materials and workmanship.
TeleMatrix's obligations under this warranty are limited to repairing or
replacing at TeleMatrix's option, the part or parts of the product which are
reported defective in material or workmanship within 2 years after the date of
purchase.
TeleMatrix will, at its option, either repair the defective products or parts or
deliver replacements for defective products or parts on an exchange basis to
buyer. Products returned to TeleMatrix under this warranty will become the
property of TeleMatrix.
All waranties are subject to the following conditions:
1. If the phones have been damaged, adjusted, abused, modified or tampered
with, by other than TeleMatrix authorized personnel, the warranties
above are voided.
2. Improper installation, maintenance, misuse or any cause other than
ordinary application will void the warranties.
3. This warranty is good only in the United States and Canada.
4. The cost and risk of loss or damage for sending the phone to TeleMatrix
will be borne by you.
5. Warranties on phones repaired by TeleMatrix are good until the end of
the original warranty.
6. Proof of date of purchase is required to be submitted with the phone
when returned for warranty repair.
Some states do not allow limitations on how long an implied warranty lasts or
exclusions or limitations of incidental or consequential damages, so the above
limitations or exclusions may not apply to you.
The foregoing TeleMatrix limited warranty is in lieu of all other warranties,
whether oral, written, expressed, implied, or statutory. There are no implied
warranties of merchantability or fitness for a particular purpose. TeleMatrix
warranty obligations hereunder are solely and exclusively as stated herein.
TeleMatrix's liability, whether based on contract, tort, warranty, strict
liability or any other theory, shall not exceed the price of the individual unit
whose defect or damage is the basis of the claim. In no event shall TeleMatrix
be liable for any loss of profits, loss of use of facilities or equipment, or
other indirect, incidental or consequential damages.
TeleMatrix will make every effort to satisfy its customers under the terms of
this warranty should a dispute arise. The company does not employ any specific
dispute settlement mechanism. This warranty gives you specific legal rights and
you also may have other rights which vary from state to state.
ALPHANET Distributor Agreement
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