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GATEWAY AUTHORIZED RESELLER AGREEMENT
This Reseller Agreement ("Agreement") is made this 23rd day of September, 2000
("Effective Date"), by and between Gateway Companies, Inc., a Delaware
corporation ("Gateway"), and Einstein Computer Corporation, a Florida
corporation, with principal place of business at 0000 X. Xxxxxxxx Xxxx., Xxxxx
000, Xxxx. X, Xxxxxxx, XX 00000 ("Reseller").
SECTION I: APPOINTMENT
1.1 APPOINTMENT Gateway appoints Reseller and Reseller accepts appointment
as an independent non-exclusive Reseller to market, sell, lease and
install Gateway products ("Products") within the Territory stated in
Exhibit A to consumers purchasing pursuant to employer PC purchase
programs. Reseller is not appointed as a dealer for Gateway's GSA
Schedule.
1.2 PRODUCTS COVERED Gateway Products means the products agreed to between
the parties from time to time with any exclusions, additions or
discounts Gateway may make.
1.3 SUB-RESELLERS Reseller shall not, without Gateway's prior written
approval, appoint sub-resellers, resellers or agents ("Sub-resellers")
to market, sell, or lease Gateway Products; provided that Gateway shall
not withhold such consent unreasonably if Reseller provides evidence of
Gateway approved training and certification of such reseller or agent.
Reseller shall be liable for the acts and omissions of any such
Sub-resellers. Should Reseller resell Products to any Sub-reseller, and
Products are further resold, the final end-user may not receive Gateway
warranty or technical support.
1.4 SALES OUTSIDE TERRITORY Reseller shall in no way market, distribute,
export, sell, lease or install Gateway Products outside the Territory
without Gateway's prior written approval. Gateway will not ship on any
Purchase Orders ("P.O.s") issued by Reseller outside the Territory.
1.5 GATEWAY SALES ACTIVITIES Gateway reserves the right to make direct
sales into the Territory, and Reseller shall not be entitled to any
compensation on any such sales. Gateway may appoint additional
Resellers in the Territory at any time.
SECTION II: OBLIGATIONS OF RESELLER
2.1 MARKETING AND PRODUCT SUPPORT. Reseller shall use reasonable efforts to
market and sell Gateway Products in the Territory and shall comply with
the policies, programs, and requirements regarding marketing and
product support as may be communicated by Gateway to Reseller from time
to time; provided, however, that in order to avoid conflict among
Gateway's distribution channels, all such marketing and sales efforts
require the prior written authorization from Gateway. Reseller shall
not, without prior written authorization from Gateway, resell Gateway
Products in a retail environment that includes any type of store, shop,
or other similar physical premises into which customers or potential
customers are invited for the purpose of purchasing or potentially
purchasing any product from Reseller.
2.2 ADVERTISING Reseller shall adhere to the reseller advertising policies
and programs as may be communicated by Gateway to Reseller from time to
time.
2.3 CUSTOMER SUPPORT AND SERVICE RESELLER SHALL:
A. Supply Gateway with such data as Gateway requests regarding
Reseller's sales to customers for Gateway's own reporting
purposes;
B. Participate fully in Gateway campaigns to notify customers of
any retrofit or recall of Gateway Products;
C. Use only Gateway-approved spare parts for any repair,
servicing and maintenance of Gateway Products it provides
under warranty;
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D. Comply with laws and regulations applicable to "used" or
returned merchandise and never refurbish, place in inventory,
or resell as "new" any Gateway Products returned to Reseller
for post-sale repair; and
E. Instruct its customers on how to obtain replacement parts
under warranty, including, when Reseller wants its customers
to contact Gateway directly, the use of Gateway's Return
Merchandise Authorization ("RMA") procedures.
2.4 OBSERVANCE OF GATEWAY POLICIES. Gateway will keep Reseller informed of
Gateway's customer support policies and procedures, and Reseller agrees
to follow such policies and procedures to resolve any customer support
issues.
2.5 MINIMUM ORDER COMMITMENT. Concurrent with execution of this Agreement,
Reseller agrees to simultaneously purchase from Gateway the Products
set forth on the attached Schedule D at the indicated prices for resale
pursuant to the terms of this Agreement (the "Initial Purchase").
2.6 RESELLER'S WAREHOUSE. All Products shipped to Einstein shall be
maintained in Einstein's warehouse facility in Sunrise, Florida and
shall be insured against any damage or loss.. The Products purchased in
the Initial Purchase shall be shipped to such warehouse.
2.7 SECURITY INTEREST. Reseller agrees that all Products sold to Reseller
hereunder shall be secured by a security interest in such Products and
any proceeds thereof and in any receivables related thereto including
any customer loan paper until Gateway shall have been paid for such
Products. Reseller agrees to execute financing agreements, UCCs, a
security agreement, and such other documentation and take such other
actions as Gateway may require to evidence and perfect such security
interest.
2.8 EXCLUSIVE MARKETING ARRANGEMENT. During the term of this Agreement,
Gateway will be the exclusive provider of personal computers ("PCs") to
Reseller. Reseller will not sell, offer for sale or solicit sales for
products of any personal computer ("PC") manufacturer other than
Gateway. For the term of this Agreement, Gateway will be the sole
supplier to Reseller for internal PC requirements provided that Gateway
personal computers shall be compatible with Reseller's existing
infrastructure, suitable for Reseller's internal needs, and
competitively priced.
SECTION III: OBLIGATIONS OF GATEWAY
3.1 SUPPLY OF GATEWAY PRODUCTS. Gateway shall endeavor to manufacture,
assemble and ship Gateway Products to Reseller in a timely manner.
Should shortages occur, Gateway may allocate its production as it deems
appropriate, may delay or stop shipments, and may send partial
shipments with prior notice. Gateway shall not be liable to Reseller
for any failure to supply quantities of Gateway Products agreed upon
with Reseller.
3.2 MARKETING ASSISTANCE Gateway will provide marketing support services
and training programs to Reseller on a case-by-case basis.
SECTION IV: ORDERING AND DELIVERY OF GATEWAY PRODUCTS
4.1 PURCHASING. This Agreement with its terms and conditions, and those
provided under the Gateway Consumer Products Limited Warranty
(available upon request) applies to all purchase orders and other
documents of purchase ("Orders") which Reseller may place with Gateway
for the Products during the term of this Agreement.
4.2 MEDIA FOR ORDERS. Reseller may order from Gateway by telephone,
facsimile, mail or electronic mail. Gateway will also provide Reseller
with the capacity to enter Orders directly into Gateway's system.
Acceptance by Gateway of the Order shall occur (a) when the Order is
entered into Gateway's system, (b) when an Order number is provided to
Reseller by facsimile or electronic mail, if requested by Reseller, or
(c) when assembly of the Products commences, whichever occurs first.
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4.3 ORDERS.
A. Reseller may deliver a P.O. to Gateway by facsimile or
electronic mail provided a signed original is delivered to
Gateway within seven (7) days of receipt of the P.O. by
Gateway. Gateway shall accept all POs by (a) facsimile or
electronic mail, with a signed original notice of
acknowledgment or (b) by commencement of performance by
Gateway.
B. Each P.O. shall be deemed an offer by Reseller to purchase the
Gateway Products listed therein and when accepted by Gateway
shall constitute a contract in accordance with the terms and
conditions of the P.O. and this Agreement. If a conflict
arises between the two, this Agreement shall take precedence.
C. P.O.s submitted by Reseller pursuant to this Agreement shall
include the quantity and type of Product(s) ordered, Product
descriptions, Product specifications, shipment and invoice
information and shipping instructions (if allowed by Gateway),
Reseller`s order number, and the Agreement number.
D. Gateway shall not be obligated to accept any order from
Reseller in an amount less than Seven Hundred Fifty United
States dollars (US $750).
E. Gateway will endeavor to fill all orders from Reseller insofar
as it is practicable and consistent with Gateway's production
schedules to do so, provided that in the event of its failure
to fill all or part of any order, Gateway shall not be to any
extent liable or responsible therefor.
4.4 CHANGES TO ORDERS.
A. No terms of any purchase orders (whether printed, stamped,
typed, written, or sent by any electronic means), except those
specifying the quantity and type of Product(s) ordered,
shipment and invoice information and shipping instructions (if
allowed by Gateway), shall be binding either on Gateway or
Reseller if they contravene any term or condition of this
Agreement, unless specifically accepted or approved in writing
and signed by an appropriate senior manager or executive of
Reseller and Gateway. A general or form acknowledgment of any
such order or any communication with respect to such an order,
or the making of deliveries with respect thereto, shall in no
case be construed as an acceptance or approval of the type
required by this paragraph.
B. Changes to orders will only be accepted prior to the order
entering Gateway's manufacturing queue. Reseller may initiate
such changes or additions to previously accepted Orders by
submitting a modification of the Order to Gateway with
appropriate reference to the original Order. Upon Gateway's
written acceptance of the modification or addition, Gateway
shall process the Order in accordance with the pricing terms
and conditions of this Agreement.
4.5 PRODUCTS.
A. As an accommodation to Reseller and without Reseller's prior
approval, Gateway may make Product substitutions when the
Products ordered are unavailable, provided that the
substituted Products are of equal or greater functionality
than those contained on the original Order and that Gateway
notifies Reseller of such substitution at the time of
delivery. Reseller may reject any such Product substitutions
within ten (10) days of delivery.
B. Gateway reserves the right to make changes and modifications
in specifications, construction, or design of the Products, or
any of them, at any time, and any Products so modified shall
be accepted by Reseller as standard construction in
fulfillment of existing orders. Gateway shall not be required
to retrofit any Product previously delivered to Reseller with
any modifications.
C. Gateway reserves the right to discontinue any Products at any
time without notice to Reseller.
4.6 SHIPPING. Reseller is responsible for payment of all shipping and
handling fees for delivery of Products. All deliveries of Products are
FOB Gateway manufacturing facilities unless Gateway expressly states
otherwise in its acceptance of the purchase order. Title and risk of
loss shall pass from Gateway to Reseller or Reseller customer at the
point of delivery.
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SECTION V: PRICES AND PAYMENTS
5.1 RESELLER'S PURCHASE PRICE. Prices for Gateway Products purchased
hereunder shall be agreed to from time to time . Such prices do not
include any taxes, fees, duties, shipping costs, insurance or other
levies. Any such items (except taxes on Gateway's income) will be added
to the purchase price. Reseller shall pay all taxes and government
imposts arising from Reseller's activities as a Gateway Reseller.
5.2 PRICE CHANGES. Gateway may at any time change Gateway Product pricing
or the Reseller's purchase price without notice or liability, but any
P.O accepted by Gateway before a price change takes effect shall be
invoiced at the previous price.
5.3 INVOICE AND PAYMENT TERMS. The Initial Purchase will be invoiced as of
the order shipment date and shall be paid for on the sooner of (i) 24
hours from the date of shipment by Einstein from a bonded warehouse to
a Einstein client or (ii) net 60 day terms whichever comes first. For
subsequent purchases of Products, Gateway will invoice Reseller as of
order shipment date, and may require a security deposit before
accepting any order. Reseller shall pay for Gateway Products in U.S.
Dollars upon shipment to Reseller customer.
SECTION VI: RETURNED MERCHANDISE
Gateway will accept returns for defective Products in accordance with the
applicable Gateway Consumer Limited Warranties which are available upon request
or at xxx.xxxxxxx.xxx.
SECTION VII: TRADEMARKS, TRADE NAMES
Reseller acknowledges that Gateway and/or its parent or affiliates are the sole
and exclusive owners of the name "Gateway" and any abbreviations or variations
thereof, and of any and all of Gateway's trademarks and trade names, service
marks, trade logos and trade dress (collectively "Trademarks") as Gateway may
unilaterally amend periodically (registered or not). Reseller agrees not to
register or use any xxxx(s) that are similar enough to be construed as Gateway
Trademarks. Reseller acquires no rights to the Trademarks, and Reseller hereby
assigns and transfers to Gateway all rights that it may acquire in and to the
Trademarks, whether by operation of law or otherwise. Any approval for
Reseller's use of any Gateway Trademark shall be made pursuant to a Gateway
Trademark License Agreement executed separately by and between the Parties
hereto.
SECTION VIII: SOFTWARE
8.1 SOFTWARE AS COMPONENT Gateway Products include as components certain
software programs (collectively "Programs") proprietary to Gateway or
licensed by it from third-party vendors, which may be periodically
updated and substituted. Gateway has all rights necessary for it to
market and distribute the Programs as Gateway Product components, as
well as the right and authority to conclude this Agreement and to grant
rights hereunder regarding the Programs. Title to the Programs remains
with Gateway and/or their licensors, and Reseller has no rights to
transfer them except as stated below.
8.2 DISTRIBUTION RIGHTS Subject to the use license in Section 8.3 below,
Gateway grants to Reseller during the Term a non-exclusive,
non-transferable right to transfer to end users within the Territory
the copies of the Programs it obtains under this Agreement only as
components of Gateway Products, subject to the following terms &
conditions:
A. Reseller shall sell or lease Gateway Products with the Program
packages as integral parts, and shall abide by all terms and
conditions imposed by the Programs' licensors. It shall not
open the Program packages or end user license packets or
separate such Program packages (including documentation and
end user licenses) from the Gateway Products. Reseller shall
not copy or reproduce any Program (except as stated herein or
in any Program's pre-packaged license agreement), or modify,
reverse engineer, disassemble, or de-compile any Program in
any way.
B. Reseller shall promptly notify Gateway of any unauthorized use
or copying of any Program, and will take at Reseller's expense
(but at Gateway's option and under Gateway's control and
direction) legal action to prevent or stop any unauthorized
use or copying of the Programs by anyone that has obtained the
Programs due, in substantial part, to Reseller's fault.
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C. Termination of this Agreement will automatically and
immediately terminate Reseller's rights under this Section.
8.3 USE LICENSE Reseller shall pass on to end users of each Gateway Product
a license to use the Programs in the form of a "break-the-seal" end
user license agreement contained in the Programs' packages.
8.4 COMPLIANCE WITH IMPORT REGULATIONS Reseller shall comply with all
United States export control regulations, licensing or other
requirements applicable to the Programs.
8.5 DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY EXCEPT FOR THE
EXPRESS WARRANTIES STATED IN THIS AGREEMENT OR IN ANY PRE-PACKAGED
LICENSE AGREEMENT FOR A GATEWAY PRODUCT COMPONENT, GATEWAY (ON BEHALF
OF ITSELF AND ITS LICENSORS) DISCLAIMS ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PROGRAMS, INCLUDING ALL
IMPLIED CONDITIONS OR WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO DEFECTS IN
DISKETTES, COMPACT DISKS OR OTHER PHYSICAL MEDIA AND DOCUMENTATION,
OPERATION OF THE PROGRAMS AND ANY APPLICATION OR USE OF THE PROGRAMS.
IN NO WAY SHALL GATEWAY (OR ITS LICENSORS) BE LIABLE FOR ANY LOSS OF
PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES.
SECTION IX: TERM
This Agreement's term ("Term") shall begin on the Effective Date and continue
for six (6) months, and shall be automatically renewed for five additional six
(6) month terms up to a maximum term of three (3) years, provided that either
party hereto may terminate this Agreement at any time with thirty (30) days'
advance written notice, and further provided that this Agreement shall terminate
automatically if Reseller makes no purchases from Gateway hereunder for a period
of sixty (60) calendar days, such termination to be effective as of the next
calendar day after such period elapses.
SECTION X: TERMINATION
10.1 TERMINATION WITHOUT CAUSE Either party can terminate this Agreement
without cause by giving thirty (30) days' written notice to the other.
10.2 TERMINATION FOR CAUSE This Agreement may be terminated for cause upon
written notice:
A. By either party upon thirty (30) days' written notice if the
other commits a material breach of the Agreement and fails to
cure it within the thirty (30) days;
B. By Gateway immediately if Reseller files for or has instituted
against it any proceedings as to its bankruptcy, insolvency,
reorganization, liquidation, receivership, or dissolution or
there is an assignment for the benefit of creditors;
C. By Gateway upon thirty (30) days' written notice (i) if
Reseller becomes ineligible to receive approval for any
license or export documents necessary to buy or resell Gateway
Products; (ii) if Reseller tries to register this Agreement
with any government conferring any exclusivity upon Reseller;
(iii) if Reseller assigns this Agreement without Gateway's
prior written consent; (iv) upon substantial change in
Reseller's ownership; or (v) if any change or enactment of law
or regulation after the date of this Agreement interferes, in
Gateway's opinion, with the parties' rights or obligations
stated herein.
10.3 EFFECT OF TERMINATION
A. Upon termination of this Agreement, Gateway may terminate any
or all unfilled orders.
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B. Upon termination, Reseller shall immediately stop all
marketing, promotion, advertising or reference to Gateway
Products and shall have no further rights to use Gateway's
marketing, promotion or advertising materials or other
resources.
C. Termination will discharge and release Gateway from all
obligations and liability under this Agreement, except as it
expressly accepts for unfulfilled orders. The sole fact of
this Agreement's termination shall not make either party
liable to the other for any compensation, reimbursement,
losses or damages whatsoever, though Reseller shall remain
obligated to pay all outstanding balances on its Gateway
Product purchases.
SECTION XI: CONFIDENTIALITY
11.1 CONFIDENTIAL INFORMATION Prior to and during the Term hereof, Gateway
may convey to Reseller proprietary and confidential information about
Gateway Products, services, strategy and analysis. For the Term of this
Agreement (including renewals) and for three (3) years thereafter,
Reseller shall not disclose to any third party any such information
marked CONFIDENTIAL, PROPRIETARY, STRICTLY PRIVATE, or INTERNAL DATA,
or which, though not so marked, could reasonably be construed as
confidential or sensitive, such as the terms of this Agreement (all
collectively "Confidential Information"), nor shall it use any such
Confidential Information for its own benefit, except as provided
herein. Any reliance on such Confidential Information is at Reseller's
own risk. Nothing in this Section grants or implies any rights by
license, estoppel, or otherwise. Confidential Information does not
include information (i) in the public domain at the time of disclosure
or which enters the public domain after such disclosure through no
fault of Reseller, (ii) generally disclosed to third parties by Gateway
without restriction, (iii) communicated to Reseller by a third party
with the unrestricted right to do so, or (iv) approved for release by
Gateway in writing.
11.2 PRESENTATIONS AND PLANNING Gateway's oral and visual presentations
describing Gateway Products and plans, business and product plans, and
any inspections thereof by Reseller or its personnel shall all be
deemed Confidential Information under this Agreement whether so marked
or not.
SECTION XII: EXPORT CONTROLS
12.1 COMPLIANCE WITH LAWS Reseller shall comply with all United States
export laws and regulations applicable to Gateway Products, and shall
obtain any licenses required for export.
12.2 PRODUCTS OF U.S. ORIGIN TECHNOLOGY Reseller may sell Gateway Products
only to end-users within the Territory, and shall not export any
Gateway Products, including Programs, or any direct products thereof
without Gateway's advance written approval and, if required, U.S.
Government permission. This requirement shall survive termination or
expiration of this Agreement. Reseller shall not do business with any
person or firm identified by the U.S. government as being denied the
right to receive any U.S. product.
SECTION XIII: LIMITATION OF LIABILITY AND REMEDIES; INDEMNITY
13.1 LIMITATION OF LIABILITY; SOLE REMEDY Any liability of Gateway under
this Agreement is expressly limited to the price paid by Reseller for
the Gateway Products involved. Reseller's sole remedy against Gateway
in any dispute concerning this Agreement shall be to seek recovery of
that amount, upon payment of which Gateway shall be released from all
further obligations and liability to Reseller.
13.2 INDEMNITY
A. Except as otherwise stated herein, Reseller shall indemnify
and hold harmless Gateway against any and all claims, legal
actions, losses, damages, liabilities, costs and expenses
asserted against, imposed upon or incurred by Gateway arising
out of or relating to (i) any misrepresentation or breach of
warranty or covenant by Reseller under this Agreement; (ii)
any actual or alleged act or omission of Reseller in the
course of its performance hereunder; (iii) death or injury to
any person or damage to any property resulting from any
product or part (a) not supplied by Gateway, (b) supplied by
Gateway but changed, modified, adapted or refitted without
Gateway's written authorization, (c) not in Gateway's standard
inventory but purchased by Gateway at Reseller's direction, or
(d) manufactured to Reseller's design, as well as any claim of
infringement arising from the use of any Product with any
other product as a combination not furnished by Gateway.
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B. Gateway warrants and represents that the Products shall be
delivered with good title free of any rightful third party
claim of infringement of any patent, copyright, trademark,
trade secret or other intellectual property right recognized
or registered within the United States and its possessions.
Gateway shall defend Reseller from all claims, suits, damages,
costs, expenses or liabilities actually incurred by Reseller
as a result of any such claim. If a Product or part thereof is
held to constitute an infringement and its intended use is
enjoined, Gateway shall at its option procure for Reseller the
right to continue using the Product or part, replace it with a
non-infringing Product or part,modify it to become
non-infringing, or remove it and refund its purchase price
(less depreciation and amortization). This Section does not
apply to (a) any product or part not supplied by Gateway; (b)
any Product or part supplied by Gateway which is changed,
modified, adapted or refitted without Gateway's express
written approval; (c) any Product or part not in Gateway's
standard inventory but purchased by it at Reseller's
direction; (d) any Product or part manufactured to Reseller's
design or (e) any claim of infringement arising from the use
of any Product in combination with any other product not
furnished by Gateway. THIS INDEMNITY IS GATEWAY'S SOLE
LIABILITY AND RESELLER'S SOLE REMEDY FOR INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER
INTELLECTUAL PROPERTY RIGHT.
C. Gateway shall defend Reseller from any and all claims, suits,
damages, costs, expenses or liabilities, including, without
limitation, reasonable fees and expenses of attorneys and
other professionals, actually incurred by Reseller arising out
of the death or injury to any person or damage to tangible
property which results from Gateway's negligence.
SECTION XIV: WARRANTIES AND REPRESENTATIONS
The Products are covered by the limited warranties in effect at the time the
Products are delivered, on standard terms and conditions supplied with each
product shipped and which are incorporated herein by this reference. Should
Reseller resell Products to any entity other than an end-user, and Products are
further resold, the final end-user may not receive any Gateway warranty or
technical support.
SECTION XV: BUSINESS STANDARDS; PRODUCT SERVICE PROVISION
15.1 CONFLICTS OF INTEREST. Reseller confirms that it has revealed all
information pertaining to possible conflicts of interest created by
sale of competing products or services or arising from other positions
or contracts held by Reseller and represents that no conflict of
interest exists. Reseller shall disclose to Gateway any future
circumstances which could create possible conflicts of interest as soon
as they become known by Reseller. Without limiting the generality of
the foregoing, Reseller shall inform Gateway of any business
relationship, circumstance, or situation which could prejudice in any
way the conduct of Gateway marketing activities according to the
highest ethical and business standards or place Reseller or Gateway in
any kind of disreputable or embarrassing situation.
15.2 ETHICAL STANDARDS. Directors, officers, or employees of Reseller shall
not, directly or indirectly, offer, promise or pay any bribes or other
improper payments for the purposes of promoting Gateway Product sales
to any individual, corporation, government official or agency, or other
entity. No gift, benefit or contribution in any way related to Gateway
or the sale of Gateway Products shall be made to political or public
officials or candidates for public office or to political
organizations, regardless of whether such contributions are permitted
by local laws. Reseller shall generally abide by all Gateway policies
and standards regarding conflicts of interest and ethics as may be
adopted by Gateway or otherwise communicated to Reseller from time to
time, such policies and standards being incorporated herein by this
reference.
15.3 AUTHORIZED SERVICE PROVIDER PROGRAM. In the event Reseller is approved
by Gateway as an Authorized Service Provider for Gateway Products,
Reseller shall at all times during the period of such designation
adhere to the standard terms, conditions, rules and policies of the
Gateway Authorized Service Provider Program as may be issued by Gateway
from time to time, and shall be solely responsible for all its acts and
omissions in the course of acting as an Authorized Service Provider for
Gateway Products.
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SECTION XVI: FORCE MAJEURE
Gateway shall not be liable for any failure to perform due to causes beyond its
control, including but not limited to fire, flood, earthquake, explosion,
accident, acts of public enemy, war, rebellion, insurrection, sabotage,
epidemic, quarantine, labor disputes or shortages, transportation embargoes,
failures or delays, inability to secure raw materials or machinery, acts of God
or government (including denials of or onerous restrictions on export licenses),
any such event of force majeure affecting Gateway's third-party suppliers, or
judicial action. Similar causes shall excuse Reseller for failure to take
Gateway Products ordered by Reseller other than those already in transit or
specially fabricated or not readily saleable to other buyers.
SECTION XVII: GENERAL PROVISIONS
17.1 PARTIES' RELATIONSHIP Gateway's and Reseller's relationship is solely
that of independent seller and buyer with the right to resell. Reseller
is authorized to resell Gateway Products (and, if applicable, to act as
an Authorized Service Provider) in its own name but not to receive any
commissions from Gateway. Reseller has no express or implied authority
to assume or create any obligation on Gateway's behalf, and shall
disclaim any such authority whenever necessary to avoid confusion. In
no case shall Reseller or any of its sub-resellers, if any, be deemed
Gateway's agents or representatives, nor shall Reseller or any of its
Sub-resellers, if any, have the right to conclude any contract or
commitment in Gateway's name, or to make any representation, guarantee
or warranty on behalf of Gateway or any of its licensors to any third
party, including end-users.
17.2 GOVERNING LAW; VENUE This Agreement and any controversy arising out of
or in relation to it shall be governed by the law of the State of South
Dakota (conflicts of laws provisions excepted), and, subject to Section
17.6 below, the parties hereby submit to the jurisdiction of the state
and federal courts of the State of South Dakota, which shall have
exclusive jurisdiction over all controversies in connection herewith.
Reseller hereby waives any right to assert any rights or defenses
within any other jurisdiction or to require that litigation regarding
this Agreement take place elsewhere.
17.3 SEVERABILITY If any provision of this Agreement shall be declared void,
invalid, or illegal, the validity or legality of all other provisions
of the Agreement shall not be affected thereby.
17.4 NOTICES. Except as otherwise provided in this Agreement, all notices,
demands and other communications hereunder shall be in writing and
shall be delivered personally or sent by facsimile, other electronic
means or nationally recognized overnight courier service addressed to
the party to whom such notice or other communication is to be given or
made at such party's address as set forth below, or to such other
address as such party may designate in writing to the other party from
time to time in accordance with the provisions hereof, and shall be
deemed given when personally delivered, when sent electronically or one
(1) business day after being sent by overnight courier.
To Reseller: Einstein, Inc.
0000 X. Xxxxxxxx Xxxxxxx
Xxxxx 000, Xxxx. X
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, CFO
Facsimile: 954.267.0401
To Gateway: Gateway, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx, Senior Vice President
Facsimile: 858.799.3413
with copies to: Gateway Companies, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, General Counsel
Facsimile: 858.799.3413
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EITHER PARTY MAY CHANGE THE ADDRESS TO WHICH NOTICE MUST BE SENT BY
GIVING WRITTEN NOTICE OF SUCH CHANGE TO THE OTHER PARTY IN THE MANNER
PROVIDED HEREIN.
17.5 ASSIGNABILITY Reseller shall not assign or transfer this Agreement
without Gateway's prior written consent, upon which this Agreement
shall bind and inure to the benefit of the assigns. Gateway may assign
this Agreement to its affiliate upon written notice to Reseller.
17.6 DISPUTE RESOLUTION All material disputes between the parties arising
from this Agreement shall be resolved by the following procedures.
(a) A letter shall be sent from the party raising the dispute to
the other party in accordance with the notice provisions of
Section 17.4, identifying with particularity the nature of the
dispute, the proposed resolution of the dispute ("Proposed
Resolution"), and the executives from the party raising the
dispute who are authorized to resolve the dispute ("Demand
Letter"). The Demand Letter shall include the facts supporting
such party's position on the dispute and include copies of any
written materials.
(b) The party receiving the Demand Letter shall have ten (10)
Business Days to send a written response ("Response Letter"),
which shall be sent in accordance with Section 17.4. The
Response Letter must accept the Proposed Resolution in the
Demand Letter or offer some other resolution.
(i) If the Response Letter accepts the proposed
resolution in the Demand Letter or no Response Letter
has been received within ten (10) Business Days, then
the Proposed Resolution shall be promptly implemented
by the parties and shall, where applicable, be
considered an amendment of this Agreement.
(ii) If the Response Letter offers some other resolution,
it shall include all facts supporting the responding
party's position on the dispute, include copies of
any written materials, and identify the executives of
the responding party who are authorized to resolve
the dispute. The executives identified in the Demand
Letter and Response Letter shall meet one or more
times and exchange such additional written materials
and proposals as needed to reach a resolution of the
matter or for one of them to declare an impasse.
(c) The party declaring an impasse shall obtain a list of five
mediators from the Judicial Arbitration and Mediation Service
("JAMS") acceptable to that party and send such list to the
other party. Within three (3) Business Days, the other party
shall select one of the five mediators. If the other party
fails to select an arbitrator within three (3) Business Days,
then the party declaring the impasse shall ask JAMS to select
a mediator. The Mediation shall be held in South Dakota.
(d) The mediator shall immediately arrange a conference call with
the mediator and the executives identified in the Demand
Letter and Response Letter. In the initial conference, the
mediator shall set a place and a time where the executives and
mediator will resolve the dispute ("Mediation"). The Mediation
must take place within five (5) Business Days of the initial
conference call. The parties shall each pay one half of the
costs of the mediator unless directed otherwise by the
mediator.
(e) At least 48 hours prior to the Mediation, each party shall
submit to the mediator the Demand Letter and Response Letter,
any additional written materials exchanged prior to the
declaration of an impasse, and the party's final proposal to
resolve the dispute ("Final Proposal"). No other written
materials may be submitted to the mediator or used in the
Mediation.
(f) The Mediation shall be attended only by the mediator and the
executives identified in the Demand Letter and Response
Letter. The Mediation shall take no more than one day. Each
side shall have counsel available by telephone to draft any
documents necessary to implement any resolution of the
Mediation. If at the end of the Mediation the parties have not
reached a mutual resolution, the mediator shall within 24
hours adopt one of the party's Final Proposals or set forth in
writing a resolution of the matter that is between the
parties' Final Proposals ("Mediator's Resolution").
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(g) The Mediator's Resolution shall be immediately implemented by
the parties. The Mediator's Resolution shall be binding upon
the parties and not subject to any further review except in
the following limited circumstances:
(i) The Mediator's Resolution requires either party to
pay the other or incur expenses in excess of
$100,000.
(ii) The difference between the aggregate amount demanded
in a party's Final Proposal exceeds $250,000.
(iii) The Mediator's Resolution is less favorable to a
party than the other party's Final Proposal.
(h) Any party dissatisfied with the Mediator's Resolution meeting
the criteria in Section 17.6 above must initiate a proceeding
within sixty (60) days of receipt of the Mediator's Resolution
("Proceeding"). The Proceeding shall make a de novo review of
the parties' dispute, except the Mediator's Resolution shall
be admissible. The parties shall each pay one half of the
costs of the retired judge unless directed otherwise by the
retired judge.
17.7 NO WAIVER Any failure of either party to enforce at any time, or for
any period of time, any provision of this Agreement, shall not
constitute a waiver of such provision or in any way affect the validity
of this Agreement.
17.8 COMPLETE AGREEMENT This Agreement with its Exhibits contains the
parties' entire Agreement and supersedes all previous communications,
representations or agreements, oral or written, regarding its subject
matter. No addition to or modification hereof shall bind either party
unless reduced to writing and duly executed by the parties as this
Agreement was, subject, however, to revisions of Exhibits A, B and C,
which Gateway may revise at any time pursuant to Section 17.9.
17.9 EXHIBITS All Exhibits attached hereto are incorporated herein by this
reference, and Gateway has the right to amend in writing any of those
Exhibits in its sole discretion.
IN WITNESS WHEREOF, this Agreement has been executed by the parties' authorized
representatives on the date first written above.
EINSTEIN COMPUTER CORPORATION GATEWAY COMPANIES, INC.
Reseller
By: /s/ XXXXXXX XXXXXX By: /s/ XXXX X. XXXX
-------------------------- --------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxx X. Xxxx
Title: Chief Financial Officer Title: Senior Vice President,
Chief Financial Officer
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EXHIBIT A
GATEWAY'S RESELLER TERRITORY LIST
Reseller's Territory/ies shall be defined as the United States. Prior to any
termination of this agreement, Gateway will send written notice to the Reseller.
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EXHIBIT B
GATEWAY'S RESELLER PRODUCT LIST
Gateway's Price List applies to all system purchases, and will be updated from
time to time by Gateway. Products and prices are:
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XXXXXXX X
XXXXXXX XXXXXXXX ORDER FORM Reseller's standard purchase order will be
sufficient to constitute an order, but no terms and conditions stated on
Reseller's purchase order will have any effect on the terms of this Agreement
and are superseded in their entirety by this Agreement.
A sample purchase order is included for Reseller's use.
[GRAPHIC OMITTED]
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EXHIBIT D
INITIAL PURCHASE PRODUCT LIST
The Products and prices for Products purchased by Reseller in the Initial
Purchase are:
