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EXHIBIT 10.4
COMPUTER SOFTWARE
DISTRIBUTION AGREEMENT
This Agreement is made and is effective as of the 8th day of January 1996, by
and between NAVARRE CORPORATION ("Navarre") of 0000 00xx Xxxxxx Xxxxx, Xxx Xxxx,
Xxxxxxxxx, 00000 and PIRANHA INTERACTIVE PUBLISHING of 0000 X. Xxx Xxxx,
Xxxxxxx, XX 00000 ("Vendor").
The Parties have agreed as follows:
1. DEFINITIONS
1.1 The term "Product(s)" shall mean all computer software and hardware, and
related products manufactured or marketed by Vendor during the term of
this Agreement.
1.2 The term "Dealer(s)" shall mean any third party or entity to which Navarre
markets any Products for remarketing.
2. GRANT OF MARKETING RIGHTS
2.1 Vendor grants to Navarre and Navarre accepts from vendor the right to
purchase Products and to market and distribute Products to Dealers
anywhere. This grant is non-exclusive unless otherwise agreed to by the
parties.
3. TERM
3.1 The initial term of this Agreement shall be for a period of one (1) year,
unless sooner terminated as provided by this Agreement.
3.2 After the initial term, this Agreement shall be automatically renewed for
successive one (1) year periods, unless either party gives the other
written notice at least sixty (60) days prior to the expiration of the
then current contract period that it does not desire that the Agreement
continue. If such notice is given, the Agreement shall terminate at the
end of the then current term.
4. ORDERS AND SHIPMENT AND DELIVERY OF PRODUCTS
4.1 Navarre shall issue orders in writing (which includes facsimile
transmission) or verbally (which must be confirmed in writing).
4.2 Vendor shall deliver all Products ordered by Navarre within the time
agreed to, which shall not in any event be later than ten (10) business
days after receipt of Navarre's orders. In the event that any ordered
product is backordered, Vendor shall provide Navarre a delivery date for
the backordered Product and Navarre may cancel the order if the delivery
date is unacceptable.
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4.3 All Products shall be shipped by Vendor to Navarre regular/ground
freight paid, F.O.B. destination. Navarre's price shown in Schedule A,
includes freight to Navarre's facility. Navarre shall pay for shipping
the Product to Dealers.
4.4 Navarre may cancel all or part of any order prior to the date of shipment.
4.5 Navarre shall have the option to accept or reject any partial shipments.
4.6 A packing list showing Navarre's purchase order number, quantity ordered,
quantity shipped and a detailed identification of the Products must
accompany all shipments.
4.7 All Products shall bear a UPC part code (sell code) [UPC number and bar
code]. The UPC numbers and codes on Products shall conform to the Uniform
Code Council, National Office Products Association and Retail
Industry Standards.
4.8 Navarre has the right to charge back to Vendor costs incurred by Navarre
or its Dealers due to missing, defective or inaccurate UPC codes. In no
event shall such charges exceed two (2%) percent of Navarre's purchase
price for the carton(s) of Products with missing, defective or inaccurate
UPC codes.
5. PURCHASE PRICE
5.1 Vendor represents and warrants that the price, discounts, payment terms
and return provisions set forth with respect to any Product shall never be
less favorable to Navarre than those made available by Vendor to any other
U.S. purchasers of such Product. Vendor agrees that if such a sale occurs,
Vendor will sell the Product to Navarre at the same terms and reimburse
Navarre retroactively from the date of such sale for the difference.
5.2 The Navarre price and the current suggested retail list price for each
Product manufactured or marketed by Vendor is shown on Exhibit "A".
Navarre has the option to add any or all future products manufactured or
marketed by Vendor. The Navarre price and the suggested retail price for
any Product may only be increased by sixty (60) days advance written
notice given by Vendor to Navarre.
5.3 Any announced or published price decrease by Vendor for U.S. purchasers of
Product shall apply to Navarre orders shipped on or after the date the
price decrease was announced or published. In addition, Vendor shall
credit to Navarre's account an amount equal to the difference between the
old cost to Navarre for a Product and the new cost, times the total number
of units of the Product held in Navarre's inventory. A similar credit
shall be made available for all affected Product held by Navarre's Dealers
at the time of a price decrease.
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Vendor shall cooperate with Navarre to implement the credit for Dealer
stocks of Product affected by a price decrease.
6. PAYMENT
On or after the date of shipment, Vendor shall invoice Navarre for the purchase
of Product. All amounts specified in any net invoice shall be paid by Navarre
within sixty (60) days from the date of receipt of the Products. Payment made
within ten (10) days of receipt of Products are subject to a two (2%) percent
discount from the purchase price provided by this Agreement and payments made
withing thirty (30) days of receipt of Products are subject to a one (1%)
percent discount from the purchase price provided by this Agreement. Navarre
shall have the option to deduct from invoices due Vendor any credits or money
due Navarre from Vendor. In case there is a balance due Navarre, Vendor shall
issue a check to Navarre within ten (10) working days for the credit balance.
7. STOCK BALANCING, RETURNS, PRODUCT RECALLS AND CREDITS
7.1 Navarre may return for credit to Vendor any unit of a Product which is
defective in material or workmanship, is overstocked or has been outdated
by the release of a new version. Upon receipt of such Product, Vendor
shall credit Navarre's account with the amount actually paid for the
Product. All regular/ground transportation charges incurred with respect
to defective Products or recalled Product shall be paid by Vendor. Navarre
shall pay transportation charges for other Product returns.
7.2 Credits for products returns, advertising allowances or other credits
provided for by this Agreement will be handled by the issuance of charge
backs by Navarre, and the issuance of a credit memo by Vendor. Vendor must
give written approval for all returns, all co-op and MDF arrangements and
any other credits before Product may be shipped or charge backs may be
imposed by Navarre.
8. WARRANTIES, EXCLUSION OF CONSEQUENTIAL DAMAGES
Except as provided in Sections 7, 8 and 9 hereof, neither party shall, under any
circumstances, be liable to the other for consequential, incidental, indirect or
special damages arising out of or related to this Agreement or the transactions
contemplated herein, even if such party has been appraised of the likelihood of
such damages occurring.
9. INDEMNIFICATION
Vendor shall be solely responsible for the design, development, supply,
production and performance of the Products. Vendor agrees to indemnify and hold
Navarre harmless from and against any claim, loss, damage, expense or liability
(including reasonable legal fees and costs) that may result, in whole or in
part, from:
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A. Any infringement, or any claim of infringement of any patent, trademark,
copyright, trade secret or other proprietary right with respect to the
Products.
B. Any warranty or product liability claim with respect to the Products or
any breach by Vendor of this Agreement.
C. Vendor represents and warrants that it has and will maintain during the
term of this Agreement sufficient insurance coverage, to enable it to meet
its obligations under this section.
10. ADVERTISING
10.1 Navarre shall have the right to utilize Vendor's trade name and any
trademarks and service marks associated with the Products to identify the
origin of the Products in advertising and promotional materials. With
respect to Products made by a third party, Vendor shall ensure that
Navarre has the right to use the third party's trademarks and service
marks associated with the Products in Navarre's advertising and
promotional materials.
10.2 Vendor shall support Navarre and Navarre's Dealers with advertising,
marketing and promotional activities. As a part of these activities,
Vendor shall implement cooperative advertising and market development
programs that Navarre and its Dealers can participate in.
10.3 Cooperative advertising shall be available to Navarre and/or its Dealers
from Vendor under this Agreement.
10.4 Vendor shall make market development funds available to Navarre and its
Dealers under this Agreement.
10.5 Cooperative Advertising expenditures and MDF expenditures are subject to
prior written approval by Vendor for each instance. Claims for cooperative
advertising and market development expenditures will be made by charge
backs to the Vendor, and Vendor will issue a credit memo for these costs.
11. TERMINATION
11.1 Either party may terminate this Agreement not less than sixty (60) days
after written notice.
11.2 Upon expiration or termination of this Agreement, Navarre shall have the
right, for 90 days after the termination, to return to Vendor all or a
portion of the Products in Navarre's inventory. Vendor agrees to
repurchase any such returned Products which have not been damaged since
their delivery to Navarre at the prices paid for them by Navarre.
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11.3 Sections 8, 9 and 10.1 shall survive the expiration or termination of
this Agreement.
12. MISCELLANEOUS
12.1 This Agreement shall be governed by the laws of the state of Minnesota.
Any dispute arising out of this Agreement shall be brought and prosecuted
in a court within Hennepin County Minnesota. For this purpose, Vendor
appoints Xxxx Xxxxxxxxx, of Xxxxx, Xxxxxxxxx and Xxxxx, 0000 X. Xxxxxxxxxx
Xxxx, Xxxxx X-000, Xxxxxxxxxx, Xxxxxxx, 00000, (000) 000-0000 as its agent
for service of process.
12.2 This Agreement shall not be assignable by either party.
12.3 This Agreement supersedes all prior oral or written proposals and
communications between the parties related to this Agreement, and shall
not be modified, rescinded, waived or otherwise changed except with the
written consent of the parties.
12.4 Each party confirms that no inducements, promises or representations, not
written herein, caused it to enter into this Agreement.
12.5 Navarre shall have the option to deduct from invoices due Vendor any
credits or money due Navarre from Vendor.
12.6 Neither party to this Agreement is the employee, agent or legal
representative of the other for any purpose whatsoever.
The parties, by the actions of their authorized representatives, have executed
this Agreement, including the attached Schedule A, as of the date first
mentioned above.
PIRANHA INTERACTIVE PUBLISHING NAVARRE CORPORATION
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxx
______________________________ _________________________________
By Xxxxxxx X. Xxxxxxx By Xxxxxxx Xxxxxx
______President_______________ ______CFO________________________
Title Title
_____1/17/96__________________ _____1/17/96_____________________
Date Date
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EXHIBIT "A"
to DISTRIBUTION AGREEMENT OF JANUARY 8, 1996
Between NAVARRE CORPORATION and PIRANHA INTERACTIVE PUBLISHING
Suggested Retail Navarre
Product Name UPC Number Price Price*
1. Piranha Pk 1 723540001015 $ [*] $ [*]
------------ ------------ ------ ------
Piranha Pk
2. Academic Edge 723540001039 $ [*] $ [*]
------------- ------------ ------ ------
3. Majestic-MAC 723540001053 $ [*] $ [*]
------------ ------------ ------ ------
4. Majestic-WIN 723540001046 $ [*] $ [*]
------------ ------------ ------ ------
5. Wonderland 723540001022 $ [*] $ [*]
---------- ------------ ------ ------
6. $ $
---------- ------------ ------ ------
ADDITIONAL DISCOUNTS
Navarre will be given a [*]% discount, issued as a credit, for the performance
of Value Added Services for retail accounts for which Navarre provides at
least two of the following services: 1) Advertising co-op assistance.
Maintain and administer co-op fund accrual amounts; 2) E.D.I. Maintain
active electronic data interchange functions; 3) Mix-Assistance. Manage
full product mix selection and make all mix decisions for retail accounts;
4) Pre-Ticketing. Provide and affix retailers' price tags; and 5)
Planogramming. Design and development of store planograms.
Navarre will be given a [*]% discount, issued as a credit for sales to those
retail accounts to which Navarre provides a full racking service. Racking
services means monthly, in-store personnel providing physical inventory
management.
*Show volume discounts and minimum order quantities here.
Please Sign this Page
/s/ Xxxxxxx X. Brannan______________ /s/ Xxxxxxx Cheney_____________
____________________________________ _______________________________
PIRANHA INTERACTIVE PUBLISHING NAVARRE CORPORATION
[*] Confidential portion deleted and filed separately with the Securities and
Exchange Commission.
