PURCHASING AGREEMENT
TERMS & CONDITIONS
1. Agreement to Purchase. MICROAGE COMPUTER CENTERS, INC. (the "Company")
distributes and sells to authorized customers, computer hardware and related
products (collectively the "Products") supplied by various vendors ("Vendors").
The "Purchaser" (identified on the Application and below) agrees to purchase and
resell the Products in accordance with the terms and conditions of this
Agreement and the Company's general policies and procedures as outlined in the
Price Guide and the Business Builder Resource Guide (collectively the "BBRG"),
subject to, and contingent upon, availability of the Product and receipt by the
Company of Vendor authorization if required.
2. Business Location and Name. The Company shall ship all Products to the
address designated by the Purchaser. The Purchaser shall notify the Company of
any change in Purchaser's business location or business name. Until a Vendor
which requires authorization provides the Company with approval to do so, the
Company shall not be obligated to ship to the new location or business name.
3. Product Ordering and Shipment Terms and Conditions. The Company's general
policies and procedures as outlined in the BBRG shall contain the terms and
conditions by which the Products shall be ordered and shipped. The Company shall
have the right to allocate its available products among its customers in such
manner as the Company deems equitable. The Purchaser shall comply with the terms
of this Agreement, the general policies and procedures as outlined in the BBRG,
and the standards and specifications established by its Vendors, as each may be
modified from time to time.
4. Product Cost. The purchase price for the Products and other terms and
conditions of sale shall be as set forth in the applicable BBRG. The Purchaser
shall make payment to the Company as outlined in the BBRG. The Company may
grant, modify, or revoke credit in the Company's sole discretion. Also, in its
sole discretion, the Company may modify the purchase price for the Products or
the time or manner of payment and/or invoicing procedures in accordance with
policies and procedures announced periodically or as contained in the general
policies and procedures as outlined in the BBRG. Delinquent payments shall be
subject to a service charge, of the lesser of one and one-half percent (1-1/2%)
or the highest applicable legal rate allowed, on the delinquent amount due per
month, until paid. Should the Purchaser become delinquent in any payment due the
Company or its affiliates, the Company may in its sole discretion (with or
without notice) suspend acceptance of orders from, or shipments to, the
Purchaser.
5. Independent Businessperson. The parties agree that each of them is an
independent business and that their only relationship is by virtue of this
Agreement. Neither party is liable or responsible for each other's debts or
obligations. The Company and the Purchaser agree that neither of them will hold
itself out to be the agent, partner, franchisee, joint venturer, employer or
related party of the other.
6. Indemnification. The Purchaser shall indemnify and hold harmless the Company
from all fines, suits, proceedings, claims, demands or action of any kind or
nature, or from any third party whomsoever, arising or growing out of, or
otherwise connected with, the Purchaser's business.
7. Price Guide. The BBRG may be published in one or more media, including
printed and electronic. The Company reserves the right to change the policies
and procedures outlined in the BBRG, which changes shall be effective when
notice shall have been sent to the Purchaser. The master copy of the BBRG
maintained by the Company at its principal office shall be controlling in the
event of a dispute relative to the content of any provision therein.
8. Purchaser Criteria. The Purchaser acknowledges and represents that: (i) its
execution of this Agreement does not violate the terms of any other
dealer/distributor agreement it is a party to; (ii) at no time during
discussions concerning this Agreement did the Company induce the Purchaser to
terminate or impair any existing contract it may have; and (iii) the Purchaser
represents that it possesses any authorization required by the Vendors for the
sale of the Products. The Purchaser shall maintain said Vendor authorization(s)
in good standing during the terms of this Agreement.
9. Proprietary Markets and Trademarks. The Purchaser acknowledges that the
Company's trademarks, including without limitation, MICROAGE and ecAdvantage,
are the Company's sole and exclusive property, and that the Purchaser is
specifically prohibited from using the Company's trademarks in any manner or for
any purpose.
10. Mutual Right to Terminate. Either party may terminate this Agreement at any
time, with or without cause, and in its sole and absolute discretion, upon
thirty (30) days' prior written notice to the other party. This Agreement shall
terminate immediately upon the expiration or termination of the master vendor
agreement between the Company and the Vendor(s). Upon any termination or
expiration of the Agreement, each party shall pay to the other all amounts or
accounts payable then owed and unpaid between the parties, if any, within
fifteen (15) calendar days of the effective date of such termination or
expiration.
11. Assignment. The Purchaser may not sell, transfer or assign this Agreement,
in whole or in part, or any of the rights hereunder unless the Purchaser obtains
the Company's prior written consent.
12. Confidentiality. The Purchaser shall maintain the confidentiality of all
elements of the distribution system, the Agreement, the BBRG and the Company's
methods of doing business.
13. Miscellaneous Provisions.
13.1 Applicable manufacturer's warranties are passed through to the
Purchaser's end users. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
NON-INFRINGEMENT AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. TO THE GREATEST EXTENT ALLOWABLE UNDER LAW, THE COMPANY
SHALL NOT BE LIABLE TO THE PURCHASER OR ANY THIRD PARTY FOR CONSEQUENTIAL,
INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF
DATA, TIME OR PROFITS EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
13.2 This Agreement may be modified only upon execution of a written
agreement executed by the parties. No waiver of any condition or covenant
contained in this Agreement, or failure to exercise a right or remedy of the
Company or the Purchaser, shall be considered to imply or constitute a further
waiver by the waiving party of the same or any other condition, covenant, right
or remedy.
13.3 The validity and construction of this Agreement shall be governed by the
internal laws of the State of Arizona. The 1980 U.N. Convention on Contracts for
the International Sale of Goods is specifically rejected and does not apply to
any transaction under this Agreement. If any of the terms of this Agreement are
inconsistent with the applicable state statutes, then state statutes will
supersede such terms. If a claim is asserted in any legal proceeding, the
Purchaser and the Company agree to irrevocably submit to the jurisdiction of the
Superior Court of the State of Arizona and the Federal District Court for the
District of Arizona, and irrevocably agree that venue for any action or
proceeding shall be in Maricopa County, Arizona. Both parties waive any
objection to the jurisdiction of these courts or to venue in Maricopa County,
Arizona. In the event an action is brought to enforce this Agreement, the
prevailing party shall be entitled to its costs and reasonable attorneys' fees.
13.4 All notices required to be given under this Agreement shall be given in
writing, by certified mail, return receipt requested, at the address of the
parties contained in the Program Application, or to such other addresses as the
Company or the Purchaser may designate in writing from time to time, and shall
be effectively given five (5) business days after deposit in the United States
mail, postage prepaid.
13.5 These terms and conditions contain the entire agreement between the
parties and supersede any and all prior agreements, if any, between the parties
concerning the subject matter hereof. The Purchaser agrees and understands that
the Company shall not be liable or obligated for any verbal representations
made. The Company does not authorize and will not be bound by any representation
of any nature other than those expressed in this Agreement.
13.6 The undersigned certifies that the Federal Taxpayer Identification
Number provided on the Application is correct and that the Purchaser is not
subject to back-up withholding.
13.7 The statements provided in this Application and in the attached
documents are true and complete to the best of the Purchaser's knowledge. The
Company may contact any person or business outlined in this Application for the
purpose of verifying the discreet information submitted; and the Purchaser
agrees to authorize any such person or business to release any information to
the Company which may be required to effect such verification. The individual
signing this Agreement represents that the Purchaser (if applicable) is a valid
corporation in good standing. By signing this Agreement, the Company and the
Purchaser agree that a facsimile of the signed Agreement may be construed and
accepted as valid, enforceable and binding on the parties hereto.
PURCHASER
________________________________________________________________________________
(Complete name of corporation, partnership or sole proprietorship)
By______________________________________________________________________________
(Signature of Corporate Officer, Partner or Owner)
Print Name______________________________________________________________________
Title___________________________________________________________________________
Date____________________________________________________________________________
MICROAGE COMPUTER CENTERS, INC.
By______________________________________________________________________________
Title___________________________________________________________________________
Date____________________________________________________________________________
