Exhibit 10.34
Reseller Agreement
Exhibit 10.34
PITNEY XXXXX OF CANADA LTD.
IMAGISTICS INTERNATIONAL INC.
RESELLER AGREEMENT ("AGREEMENT")
Agreement made this 22nd day of December 2003 by and between Pitney Xxxxx of
Canada, LTD. and Imagistics International Inc. This Agreement shall replace and
supersede the agreement between the parties dated November 1, 2001.
The parties hereby agree as follows:
I. DEFINITIONS/GRANT
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A. PURCHASER: Pitney Xxxxx of Canada Ltd. ("PBC")
B. SUPPLIER: Imagistics International Inc. ("Imagistics")
X. XXXXX: For as long as this Agreement is in effect, Imagistics
hereby grants to PBC, its subsidiaries, divisions and dealers
who agree to be bound by the terms of this Agreement, the
non-exclusive right to purchase for resale and the
non-exclusive right to use, sell, lease or otherwise market
within Canada (the "Territory"), certain Imagistics equipment,
accessories, spares, parts, superseded parts and supplies
("Products") as set forth hereinafter, and authorizes PBC to
use, market, resell, lease, install and service the such
Products.
D. DEFINITIONS:
i) "New Equipment" shall mean units that are assembled
for the first time, with entirely new components and
purchased by Imagistics from its suppliers pursuant
to orders placed by PBC.
ii) "Used Equipment" shall mean equipment that has been
operated and sold to PBC by Imagistics "as is" in the
configuration, agreed upon by the parties.
iii) "Refurbished/Remanufactured Equipment" shall mean
used units of equipment that are disassembled and
their parts cleaned and reconditioned. The units are
reassembled from new, used, and reprocessed parts
meeting component specifications. The units are then
retested to ensure that they meet model
specifications.
iv) "Emergency Parts" shall mean any part PBC requires to
meet an urgent customer request.
v) "Delivery" shall mean FOB for Products sent via ship
or FCA for Products shipped via air or rail, (1) with
respect to New Equipment, parts, supplies and
accessories, point of origin; and (ii) with respect
to equipment, parts, supplies and accessories other
than for New Equipment, Imagistics' applicable
warehouse as negotiated by the parties.
vi) "Legacy Parts & Supplies" shall mean parts and
supplies for any Products launched before June 1,
2003.
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II. TERM AND RENEWALS
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A. The term of the Agreement shall be for a period of two (2) years
commencing as of December 22, 2003 (the "Effective Date"). The
Agreement may be renewed by the parties for additional annual
periods provided that any such agreement as to such renewal is
reached by the parties no later than six (6) months prior to the
end of the term. Notwithstanding the foregoing, all orders placed
by PBC in December 2003 shall be subject to the terms of this
Agreement, including pricing.
B. Six months prior to the end of the term, or any renewal term, the
parties shall meet to discuss (i) whether or not the Agreement
will be renewed for an additional year and (ii) the terms and
conditions upon which the Agreement will be renewed.
C. Imagistics and PBC shall have the right to terminate this
Agreement upon the occurrence of any of the following events of
default:
i) A party fails to perform any material obligation under
this Agreement and such failure continues unremedied for a
period of thirty (30) days after the non-defaulting party
provides written notice as to the failure to perform;
ii) A proceeding is commenced by or against a party under any
law relating to bankruptcy, or a court assumes
jurisdiction of a party's assets under any law authorizing
reorganization of its debts, or a trustee or receiver
shall be appointed for all or a substantial portion of the
party's assets;
iii) A party shall become insolvent or suspends its business
for any length of time; or
iv) A party shall make an assignment of its assets for the
benefit of its creditors.
III. EQUIPMENT ORDERING AND ADMINISTRATION
-------------------------------------
A. ORDERING: All PBC orders with Imagistics will be placed by the
Purchasing Department of PBC ("PD") in accordance with the process
in, and in the form as mutually agreed to by the parties,
provided, however, that orders (1) with respect to New Equipment
that request delivery outside of the standard lead times as agreed
to by the parties from time to time, (2) with respect to equipment
other than New Equipment (e.g. Used Equipment, Remanufactured
Equipment and Refurbished Equipment) and (3) with respect to
equipment that has been discontinued by the manufacturer, all will
be subject to the prior approval of Imagistics, which shall be
provided to PBC within three (3) business days from receipt of a
PBC order.
All parts & supply orders will be placed by the PD with a Purchase
Order (PO) reference. All Order Agreements and parts & supply
orders will be processed by the PD, and no orders may be accepted
from any other location. All supply orders will note a PO number,
which must be noted in the section reserved for Purchase Order
number on the Imagistics invoice.
Once an order is accepted, Imagistics will use reasonably
commercial efforts to ensure that the manufacturer delivers the
product to PBC at the F.O.B. point in a timely and marketable
condition in accordance with applicable deadlines, and will not be
diverted for any reason. In the event that the ship date is
delayed for any reason by the manufacturer, Imagistics shall pass
on to PBC the benefit of any remedies from the manufacturer in
connection with any such delay.
A single point of contact will be provided by Imagistics for PBC
to place orders.
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B. BILLING: The sole "Xxxx To" address for PBC is:
Pitney Xxxxx of Canada Ltd.,
0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxx, XX,
X0X 0X0
Xxxxxx
Attention: Accounts Payable
All invoices sent by Imagistics to PBC for Legacy Parts and
Supplies shall be accompanied with a copy of the manufacturer's
invoice for such equipment. Invoices may not be sent to any other
location for any reason. All inquiries for billing and collection,
including aging statements and xxxxxxx letters, will be directed
to the PD at the address shown above.
The PBC billing contact for billing and collection issues shall be
Xxxxxxx Xxxxx.
C. PAYMENT: Payment on all invoices will be due to Imagistics within
7 days of invoice receipt; provided, however that in no event
shall payment on an invoice(s) exceed the amount of the related
purchase order(s) except if due to currency fluctuations
(excluding yield sharing arrangements). Payment method will be
made by wire transfer of immediately available funds to such
account as Imagistics shall advise from time to time. Imagistics
may reject any Product order if PBC has an overdue balance except
where the parties have a good faith dispute. Any amount due on an
invoice not timely paid and not subject to a good faith dispute
shall bear interest at the rate of 4% per annum from its due date
for the first year of this Agreement, and thereafter on the
anniversary date shall be adjusted to the prime rate as set forth
in the Wall Street Journal, not to exceed 6%.
D. INVOICE ADJUSTMENTS. PBC shall have 30 days from the date it
receives a shipment at PBC dock in Canada to notify Imagistics of
any discrepancies between the PO and the xxxx of lading. PBC shall
notify the carrier at the time of unloading of any differences
between the xxxx of lading and the actual Products received, and
PBC shall request adjustments with respect to any discrepancies
from the carrier.
E. PRODUCT DELIVERY: Imagistics and PBC will agree to standard
delivery lead-times for different type of purchases, which may be
adjusted from time to time by Imagistics. PBC shall benefit from
any delivery lead time reductions negotiated by Imagistics
provided PBC meets the criteria for same.
F. BRANDING. All Equipment shall be branded with Imagistics name and
logos. Any co-branding by PBC must be pre-approved by Imagistics
and such pre-approval shall not be unreasonably withheld by
Imagistics. PBC will, at PBC's expense, co-brand with Imagistics
the Products, cartons, collateral and supplies, at a facility of
PBC's choice. Imagistics will provide electronic copies of
marketing collateral and operator guides in a form that can be
modified to enable PBC to develop co-branded versions of these
items. Any proposals for co-branding the Products shall be
provided to Imagistics by January 1, 2004, and thereafter for
newly added products or changes to any items at least 30 days
prior to the submission of the purchase order.
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IV. EQUIPMENT AND PRICING
---------------------
A. All Equipment, Accessories, Parts, Emergency Parts, and Supplies
prices shall be calculated as follows:
i) For New Equipment, and accessories, spares, parts and
supplies therefore, as set mutually agreed to by the
parties.
ii) PBC shall pay all costs of shipping all Products,
including freight, duty and insurance, from either
Imagistics or the third party vendor to PBC, as
applicable.
iii) PBC shall pay to Imagistics a premium for each Emergency
Part as mutually agreed to by the parties. All Emergency
Parts shall be provided subject to availability. Unless
otherwise notified by Imagistics, PBC expects all
Emergency Parts to be new parts and not used, refurbished
or remanufactured.
iv) Refurbished/Remanufactured and Used Equipment, and
accessories, spares, parts and supplies therefore shall be
priced as quoted by Imagistics at the time of such request
for same.
v) Subject to availability, Imagistics shall accept orders
for Emergency Parts. PBC shall be entitled to submit a
maximum of 1 order per week with 10 line items per order
and 10 pieces per line item.
B. Legacy Parts and Supplies will be billed as mutually agreed to by
the parties.
C. In the case of large deals (defined as 500 or more units to a
single account), Imagistics will use its best efforts to obtain
special pricing from its suppliers and shall pass these along to
PBC.
D. PBC reserves the right to audit Imagistics' inspection records it
has with its suppliers. PBC shall also conduct incoming
inspections of all ordered Products.
V. WARRANTY
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A. For each unit of New Equipment, and accessories, spares, parts and
supplies therefore, Imagistics, to the extent allowable, hereby
transfers to PBC all warranties and indemnifications that it holds
from the equipment manufacturers, which may be changed from time
to time in Imagistics sole discretion providing PBC receives the
same warranties and indemnifications from the equipment
manufacturers as Imagistics. Imagistics shall provide PBC with
copies of any such changes. If any warranty and/or indemnification
is not transferable, Imagistics will covenant to provide PBC with
the practical benefits of such warranty and/or indemnification.
Imagistics makes no warranties or representations as to the
manufacture or performance of the Products to PBC, or to any
ultimate purchaser of the Products, except as set forth in this
Section A for New Equipment, and the accessories, spares, parts
and supplies therefore. All Refurbished/Remanufactured Equipment
and Used Equipment, and used accessories, spares, and parts are
sold "AS-IS", "WHERE-IS", without warranties of any kind.
B. Imagistics shall obtain any normal product certifications (e.g.
United Lab "small c", international access standards, etc.) and
modifications to meet local law requirements, including, without
limitation, those relating to safety and language, and voltage;
provided, however, that to the extent that there are incremental
costs associated with obtaining any certifications or
modifications, PBC shall bear the costs and expenses relating to
same. If and when Imagistics incorporates any such improvements
into the Products they shall be provided to PBC at no additional
charge. Imagistics shall use its best efforts to get additional
features at the lowest possible price from its suppliers to
satisfy local requirements.
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VI. INDEMNIFICATION/LIMITATION OF LIABILITY
---------------------------------------
A. Imagistics shall indemnify, defend and hold harmless PBC, its
affiliates, directors, officers, and employees, from and against
any losses, claims of losses, damages and expenses (including
without limitation court costs and attorneys' fees) caused by:
i) Defective Equipment to the extent such indemnifications
are provided by the equipment manufacturers to Imagistics;
ii) Copyright or other intellectual property right
infringements as set forth in Section VIII.E. below; and
iii) any other matters with respect to which Imagistics has
obtained indemnities and/or defense from its
vendors/suppliers or third parties.
B. PBC shall promptly notify Imagistics of any indemnification
claims. Imagistics shall have the right to control the defense of
such claim including the right, with the consent of PBC, to
compromise or settle such claim. PBC shall provide reasonable
assistance in such defense if requested by Imagistics and shall be
reimbursed for the expenses incurred as a result of such
assistance.
C. As previously agreed, Imagistics will transfer warranties and
indemnifications it receives from its suppliers for the equipment
purchased by PBC hereunder. If any such warranties and/or
indemnifications are not transferable, Imagistics hereby covenants
to provide to PBC the practical benefits of such warranties and/or
indemnifications. Imagistics hereby disclaims all warranties
(express or implied), other than the indemnities or warranties
referred to in this Agreement. Further, Imagistics will not be
providing maintenance service on equipment sold to PBC.
D. Imagistics shall provide PBC with notice prior to changing any
provisions in any supplier/vendor contract relating to
indemnities, warranties or any other provisions with respect to
which Imagistics has agreed to pass on the benefits to PBC.
E. Imagistics will, at its sole expense, indemnify, defend, and hold
harmless PBC, and its parent, its present and future directors,
officers, employees, shareholders, partners, owners and agents
from and against any and all liabilities, penalties, fines
forfeitures, demands, claims, causes of action, suits and costs
and expenses incidental thereto, including costs of defense,
settlements, and reasonable attorney's fees, which any or all of
them may hereinafter suffer, incur, be responsible for, or pay
out, arising from or caused as a result of a claim or action
asserted by any third party based upon PBC's or its customer's use
and/or possession of modifications to, or designs of equipment or
software requested or completed by Imagistics, which equipment or
software has then been supplied to PBC by Imagistics pursuant to
this Agreement ("Infringing Equipment") infringing any patent,
copyright, trade secret, trademark or other intellectual property
right or interest of any third party ("Infringement") or any
customer claim against PBC relating to any Infringement, and
Imagistics will pay damages, costs, expenses, settlement amounts
and judgments finally awarded against PBC or PBC's customers
relating thereto (including court costs and attorneys' fees). PBC
agrees to promptly notify Imagistics in writing of any matters in
respect to which the foregoing indemnity may apply. Imagistics
shall have the exclusive right to control and conduct the defense
and settlement of all such claims or actions. PBC agrees to
provide such assistance at Imagistics' expense that may be
reasonably required by Imagistics in connection with such
settlement or defense. If final judgment shall be obtained against
PBC's or its customer's use or operation of the equipment supplied
by Imagistics to PBC pursuant to this Agreement, or any part
thereof, by reason of such Infringement, or if in Imagistics'
opinion, such equipment is likely to become subject to a claim of
Infringement, Imagistics shall, at its sole expense and option,
either (a) modify the Infringing Equipment so that it becomes
non-infringing without materially altering its capacity or
performance; (b) procure for PBC or PBC's customer the right to
continue to use the
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Infringing Equipment; or (c) substitute for the Infringing
Equipment other equipment having a capability equivalent to that
of the Infringing Equipment. If neither (a) through (c) above is
available to Imagistics, then Imagistics shall refund to PBC the
purchase price of such unit of Infringing Equipment paid, pro
ratable, based upon a thirty-six (36) month useful life and shall
remove the Infringing Equipment at its sole cost and expense.
Imagistics shall have no liability with respect to any such claim
or action to the extent caused by the combination, operation or
use of the Infringing Equipment with any equipment, device, or
alteration to the Infringing Equipment not made or authorized in
writing by Imagistics, provided such combination, operation or use
is not contemplated by this Agreement or the Product
specifications. The foregoing states the entire liability of
Imagistics to PBC for Infringement.
F. PBC shall indemnify and hold harmless Imagistics, and its present
and future directors, officers, employees, shareholders, partners,
owners and agents from any and all liabilities, penalties, fines,
forfeitures, demands, claims, causes of actions, suits and costs
and expenses incidental thereto, including costs of defense,
settlements, and reasonable attorney's fees, which any or all of
them may hereinafter suffer, incur, be responsible for, or pay
out, arising from or caused by: (i) any purchase, lease, rental,
or any other type of transaction of Products outside the
Territory; (ii) any advertising, promotional materials, and
marketing plans, and any amendments thereto, implemented or
distributed by PBC or its agent, that have been modified by PBC
and where the modified portion is solely the basis for a claim
(such modifications shall specifically exclude co-branding); (iii)
any work performed by PBC or its agent; (iv) any violation of
Sections XI. G and H; (v) the negligent, willful, intentional acts
of PBC, its employees and agents, arising from their performance
under this Agreement; or (vi) any violation or default by PBC, its
employees or agents, of its material obligations under this
Agreement.
G. Imagistics shall indemnify and hold harmless PBC, and its present
and future directors, officers, employees, shareholders, partners,
owners and agents from any and all liabilities, penalties, fines,
forfeitures, demands, claims, causes of actions, suits and costs
and expenses incidental thereto, including costs of defense,
settlements, and reasonable attorney's fees, which any or all of
them may hereinafter suffer, incur, be responsible for, or pay
out, arising from or caused by: (i) the negligent, willful,
intentional acts of Imagistics, its employees and agents, arising
from their performance under this Agreement; or (ii) any violation
or default by Imagistics, its employees or agents, of its material
obligations under this Agreement.
H. Neither party shall be liable to the other, for any special,
indirect, incidental, punitive, exemplary or consequential damages
(including without limitation loss of profits) arising out of or
in connection with this Agreement or the Products.
I. This section shall survive the termination of this Agreement,
regardless of the basis for such termination.
VII. SERVICE LEVEL AGREEMENTS
------------------------
Imagistics will provide the following to PBC at no charge:
A. MARKETING & SALES SUPPORT
i) Monthly updates of new products.
ii) Imagistics Creative for all brochures (electronically in a
form that can be modified by PBC)
iii) An Imagistics product launch binder for each product
iv) One time "train the trainer" session training on new
products, provided that PBC is responsible for the cost of
travel and lodging of its personnel participating in such
training
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v) A master copy on a per product basis of training materials
to be used for training the sales force
vi) Ability for PBC to participate in events (Seminars, Trade
Shows, etc.)
B. TECHNICAL & SERVICE SUPPORT
i) Quality assurance testing, engineering and R&D
ii) One technical training (train the Trainer program) class
per new product introduction including all new
product/feature introductions, as well as iLearning. PBC
may elect at their discretion to arrange technical
training at a Canadian facility of their choice. PBC will
pay the travel and living expenses of the trainer provided
that PBC has approved such costs in advance.
iii) Service bulletins and updates, trouble database, including
access to all web related information and problem
resolution procedures currently available.
iv) Technical & engineering bulletins
v) Patches & interface kits (including software updates for
existing products) provided that they are free to
Imagistics; PBC shall pay any incremental costs specific
to PBC with respect to the foregoing provided that PBC has
approved such costs in advance
vi) Hotline support for technical issues (third level only;
i.e., after their customer engineer and technical support
people have failed)
vii) Diagnostic tools (software based) provided that they are
free to Imagistics; PBC shall pay any incremental costs
specific to PBC with respect to the foregoing provided
that PBC has approved such costs in advance
Imagistics will provide the following at a mutually agreed upon
reasonable price:
o Customization to products - Parties to include a
co-development policy to meet Canadian requirements,
including agreement delivery timetable, pre and post sales
support, intellectual property rights etc.
o On-Site assistance
o Coordination of third party engineering support for unique
engineering requirements
VIII. NOTICES
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A. Each of Imagistics and PBC shall appoint a single contact person
to handle issues arising under this Agreement. As of the date of
this Agreement, the primary Contact for each of Imagistics and PBC
is set forth below:
For PBC: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Email: xxxxxxx.perri @xx.xxx
For Imagistics: Xxxxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
Each of the above shall be responsible for appointing a deputy to
act on his behalf in his absence.
B. Imagistics and PBC shall schedule periodic meetings for its sales
people involved in cross border transaction to ensure open
communications between PBC and Imagistics with respect to same.
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IX. PRODUCT SOURCING
----------------
Imagistics, through its product sourcing, will ensure that all Canadian
regulatory requirements are met and will use its best efforts to ensure
that Canadian product requirements are being met. The parties agree to
meet at least twice per year to obtain PBC input in the types and
qualities of products required to allow PBC to remain competitive in the
Canadian market place.
X. RISK OF LOSS
------------
Risk of loss for all Products shall transfer to PBC upon Delivery to PBC.
XI. DUTIES OF PBC AND IMAGISTICS
----------------------------
A. PBC shall not sell the Products acquired under this Agreement
outside of the Territory.
B. PBC shall not incur any liability on behalf of Imagistics.
C. Should PBC or its customers purchase any parts or supplies
associated with the Products from any party other than Imagistics,
neither Imagistics nor it suppliers shall be liable for any damage
to the equipment caused thereby.
D. PBC agrees to provide Imagistics with a six (6) month rolling
forecast updated by the day of each month orders for the Products;
however, PBC shall only be committed to purchasing Products that
it orders in its PO. Any modifications to lead time must be in
writing and accepted by PBC, which acceptance shall not be
unreasonably withheld conditioned or delayed, excepting that if
lead times to Imagistics are changed, they shall be changed for
PBC.
E. PBC shall be responsible for the performance of warranty and
maintenance service work on all Products sold, leased or otherwise
disposed of by it. All warranty and maintenance service work shall
be performed in a good and workmanlike manner, and to a standard,
consistent with professional standards.
F. In order to provide customers with better service and access to
Products, PBC shall use reasonable commercial efforts to:
Maintain sales and service facilities of a reasonable
quality.
Maintain reasonable levels of inventory of Products.
Provide employees with proper training in sales,
after-sales service and installation of Products.
Maintain demonstration rooms or areas for Products.
G. PBC shall comply with and require its agents, employees, and
customers to comply with all written directions, safety notices,
warnings and other written instructions furnished by Imagistics or
its manufactures, and shall use and require its agents, employees,
and customers to use reasonable care in the use of the Products.
IMAGISTICS AND ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY
FOR ANY LIABILITIES RESULTING FROM THE FAILURE OF PBC TO OBSERVE
THE PROVISIONS OF THIS SECTION, OR FOR ANY INJURY OR DAMAGE
CAUSED, IN WHOLE OR IN PART, BY PBC OR PBC's CUSTOMER'S FAILURE TO
COMPLY WITH APPLICABLE GOVERNMENTAL SAFETY REQUIREMENTS. This
section shall survive the termination of this Agreement,
regardless of the basis for such termination.
H. PBC shall in: (i) the operation of its business; (ii) the
importing, marketing, selling and servicing of the Products; and
(iii) in its performance of its obligations under this Agreement,
comply with
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all applicable laws, statutes, rules and regulations, including
that PBC shall dispose of all Products in accordance with all
applicable laws and regulations. This section shall survive the
termination of this Agreement, regardless of the basis for such
termination.
XII. INFORMATION EXCHANGE
--------------------
A. Any information exchanged between the parties during the term of
this Agreement or any extension thereof and which is considered by
the disclosing party to be confidential in nature shall be
considered confidential only if disclosed in writing and marked
"Confidential Information." Information disclosed orally or
otherwise not meeting the requirements of this sub-paragraph shall
not be considered confidential unless reduced to a writing and
provided to the other party within 30 days.
B. All Confidential Information disclosed in accordance with
sub-paragraph A above shall be held in confidence by the receiving
party during the term of this Agreement and for a period of 3
years thereafter and shall be used by the receiving party only for
purposes of performing its obligations under this Agreement.
C. The obligations of the receiving party under subparagraph B above
and D and E below shall not apply to the sales, training,
maintenance, repair, or service information provided pursuant to
this Agreement, and any information which: (i) is already public
or becomes available to the public through no breach of this
Agreement by the receiving party; or (ii) was in the receiving
party's possession prior to receipt from the disclosing party; or
(iii) is lawfully received independently from a third party who is
free to disclose such information to the receiving party; or (iv)
is independently developed by or on behalf of the receiving party;
or is required to be disclosed by a governmental agency or a court
having proper jurisdiction. If such a requirement is made, the
party required to make such a disclosure shall give the other
party reasonable notice to enable the other party to try to
protect the confidentiality of the information; or (v) is
authorized to be disclosed by the receiving party with the
disclosing party's prior written consent.
D. The following shall be Confidential Information of Imagistics and
PBC shall not disclose to any third party: (i) the pricing
provided by Imagistics pursuant to this Agreement; (ii) any other
terms of this Agreement or any Exhibit; or (iii) any information
provided by Imagistics pertaining to its new or future Products or
its marketing or sales strategy.
E. The following shall be Confidential Information of PBC and
Imagistics shall not disclose to any third party: (i) pricing,
forecasting and cost information provided by PBC pursuant to this
Agreement; or (ii) any information provided by PBC pertaining to
its new or future Products or its marketing or sales strategy,
excepting that such information in (i) and (ii) may be disclosed
by Imagistics to its suppliers for ordering and forecasting
purposes in accordance with the confidentiality provisions it has
with such suppliers.
F. This section shall survive the termination of this Agreement,
regardless of the basis for such termination.
XIII. TERMINATION
-----------
A. Either party may terminate this Agreement should the defaulting
party fail to perform any material obligation hereunder and such
failure continues unremedied for a period of thirty (30) days
after the non-defaulting party provides written notice detailing
such failure. An exception shall exist for good faith disputes
between the parties.
B. All moneys due shall become payable immediately upon termination.
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C. Orders placed by PBC prior to the date of termination and accepted
by Imagistics shall be completed by the agreed upon delivery date
and PBC may continue to sell all Products in its possession.
D. PBC shall continue to perform warranty service work on all
Products sold by it.
E. For a minimum period of 3 years from the date of termination of
this Agreement, or for as long as parts and supplies are provided
to Imagistics by its suppliers, in any event not to exceed 7 years
from the earlier of the date of last manufacture of a unit of
equipment or the termination date of this Agreement, Imagistics
shall continue to provide warranty and non-warranty parts and
supplies, and updated service manuals, to PBC for the purposes of
servicing Products sold by it.
F. PBC's account must be and remain current and in good standing in
order to continue receiving the parts/supplies during the period
mentioned above, otherwise Imagistics may refuse to sell warranty
and non-warranty parts/supplies to PBC if PBC's account is in
arrears. An exception shall exist for good faith disputes between
the parties.
G. After termination, PBC shall not represent or hold itself out as
an authorized reseller, or engage in any practices, which would
give an appearance of same, however it may utilize the Imagistics
name and trademark(s) solely in the performance of its service
obligations. In addition, PBC may sell off all equipment in its
inventory.
XIV. SOFTWARE
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While this Agreement is in effect, PBC shall have a non-exclusive
license in the Territory for the sole purpose of distributing same with
the applicable unit of Imagistics equipment sold, leased or rented by
PBC to end users. PBC and its customers shall not modify, reverse
engineer, decompile or disassemble any portion of such software. Should
Imagistics receive any general updates or modification to such software
for the purpose of fixing problems in the software, it shall provide
same to PBC at no cost to PBC.
XV. MISCELLANEOUS
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A. This Agreement may not be assigned and/or its duties delegated
without the written consent of both parties.
B. Neither party shall be liable to the other for any delay or
failure to perform its obligations due to any cause beyond its
reasonable control including any act of God, the action of any
government or judiciary; provided that in any such event, the
parties shall use commercially reasonable efforts to notify the
other of any such delay and make a diligent effort to resume its
responsibilities hereunder.
C. Written notice or submission of written replies required by this
Agreement shall be accomplished by personal delivery, overnight
courier, registered mail or certified mail (return receipt
requested) postage prepaid addressed to the following location or
such other location provided by the parties during the term of
this Agreement by notice similarly given:
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IF TO IMAGISTICS: IF TO PBC:
Imagistics International Inc. Pitney Xxxxx of Canada Ltd.
000 Xxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxxxxxx, XX
Attn: Xxxxxxxxx Xxxxxxx, X0X 0X0, XXXXXX
VP Product Dev & Marketing Attn: Vice President, Finance
WITH A COPY TO: WITH A COPY TO:
Imagistics International Inc. Pitney Xxxxx Inc.
000 Xxxxxxx Xxxxx 00 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
Attn: Corporate Counsel Attn: Deputy General Counsel
Notice will be effective upon personal delivery, or if mailed, as
provided above on the first Business Day following the date of
mailing.
D. Any terms or conditions of this Agreement which by their express
terms extend beyond termination or expiration of this Agreement or
which by their nature shall so extend shall survive and continue
in full force and effect after any termination or expiration of
this Agreement.
E. This Agreement together with the Exhibits attached hereto,
constitute the entire agreement between the parties, concerning
the subject hereof. No amendment, modification, or waiver of any
term of this Agreement shall be effective unless such amendment,
modification, or waiver is in writing and signed by Imagistics and
PBC.
F. Neither party's officers or employees, agents or contractors, will
be deemed officers, employees, agents, or contractors of the other
party for any purpose.
G. No delay, failure or waiver of either party's exercise or partial
exercise of any right or remedy under this Agreement shall operate
to limit, impair, preclude, cancel, waive or otherwise affect the
existence of such right or the exercise of such remedy at a future
time.
H. If any provision of this Agreement is held invalid, illegal, or
unenforceable, the validity, legality, or enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
I. This Agreement shall be construed and enforced in accordance with
the laws of the State of Connecticut without reference to the
conflict of laws provisions thereof. The parties hereby consent to
the personal jurisdiction of the state and federal courts within
the State of Connecticut, County of Fairfield, for the
adjudication of all matters relating to, or arising under this
Agreement.
J. No license or right, either directly or by implication, is granted
to by either party to the other party to use the other party's
name, trade names, trademarks, service marks, slogans, logos,
designs or awards for any advertising, promotional or other
purpose without prior written permission of the other party,
excepting that PBC may disclose to third parties that it is an
authorized reseller of Imagistics Products for as long as this
Agreement is in effect.
K. Neither party shall have any authority to enter into any contracts
or binding commitments in the name of the other, except Imagistics
may rely on purchase orders provided by PBC and order the Products
contained therein on behalf of PBC.
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L. Neither party shall solicit for employment any employee of the
other party for a period of one (1) year from the earlier of the
date (i) such employee voluntarily leaves or is terminated from
their employment with such party; or (ii) of termination of this
Agreement; , unless such employee: (a) is dismissed as a result of
a reduction in work force; (b) terminated for cause; or (c) is
hired by a third party and then terminated by such party or leaves
their employ.
M. Each party hereby represents that the person signing this
Agreement on their behalf is duly authorized and that this
Agreement shall be binding upon such party.
Dated the day and date first above written.
Imagistics International Inc. Pitney Xxxxx of Canada, LTD
By /s/ Xxxxxxxxx Xxxxxxx By /s/ X. Xxxxxx
--------------------- -------------
Xxxxxxxxx Xxxxxxx X. Xxxxxx
Product Development and Marketing President
Page 12 of 12
