Exhibit 10.11
Magnetic Media Division 3M
Authorized Distributor Agreement
THIS AGREEMENT is between MINNESOTA MINING AND MANUFACTURING COMPANY, a Delaware
corporation, acting through its Magnet Media Division with its principal place
of business at the 3M Center, Xx. Xxxx, Xxxxxxxxx 00000-0000 (hereinafter
referred to as "3M"), and
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Account Name
Miami Computer Sply
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Business Headquarters Address
0000 Xxxxxx Xxxxxx Xx.
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City, State - Zip
Xxxxxx, XX 00000
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Key Contact Name
Xxxx Xxxxxxx - Gen. Mgr.
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Telephone Number
(000) 000-0000
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(hereinafter referred to as "DISTRIBUTOR"). (3M and DISTRIBUTOR are hereinafter
referred to jointly as the "Parties" and Individually as "Party").
1. Scope of Appointment.
(A) 3M appoints the DISTRIBUTOR, on a nonexclusive basis, to sell and
promote the sale of 3M computer products and accessories set forth on the
current 3M published price pages listed in Exhibit A (hereinafter referred to as
"Products") to commercial and consumer end-users.
(B) DISTRIBUTOR recognizes that 3M may sell Products to any customer,
including direct sales to dealers or sales to distributors for resale.
2. Acceptance. This Agreement is not binding on 3M until it has been
accepted in writing by the signature of an authorized 3M representative at 0X
Xxxxxx, Xx. Xxxx, Xxxxxxxxx. This is the sole and exclusive manner of
acceptance. Any other promise or act, including a promise to ship or the prompt
shipment of Product, shall not constitute acceptance by 3M of this Agreement.
3. 3M's Obligations to Distributor. 3M agrees to:
(A) Use its best efforts to promptly fill DISTRIBUTOR's proper orders
for Products.
(B) Make available the services of a 3M sales representative to provide
Product information, merchandising and general sales support.
(C) Provide DISTRIBUTOR with Product information, literature and sales
materials (in quantities agreed to by 3M and DISTRIBUTOR) designed to aid
DISTRIBUTOR in the introduction and sale of Products.
4. Distributor's Obligations to 3M. DISTRIBUTOR agrees to:
(A) Vigorously and enthusiastically promote the sale of the full line of
Products and will maintain a well-trained and well-managed sales force capable
of and committed to maximizing the demand for Products through every proper
means. DISTRIBUTOR promises to devote at least the same vigor and resources in
promoting Products as it devotes to other suppliers' product lines.
(B) Not misrepresent either directly or by omission the capabilities,
qualities, or characteristics of the Products. Neither DISTRIBUTOR nor its
representatives will disparage the Products or cast the Production in an
unfavorable light.
(C) Purchase a minimum of $50,000.00 of assorted Products, net of
discounts and returns, during the term of this Agreement. Every sixty (60) days
3M and DISTRIBUTOR agree to review DISTRIBUTOR's performance in reaching its
minimum purchase requirements and other obligations under this Agreement.
(D) Maintain an adequate inventory of the full line of Products so that
DISTRIBUTOR can promptly fill orders from stock.
(E) Supply promptly all financial information required by 3M's Credit
Department to assess DISTRIBUTOR's credit worthiness. DISTRIBUTOR will make
prompt payment of all 3M invoices in accordance with current payment terms.
DISTRIBUTOR agrees not to make any deductions of any kind from 3M invoices
unless DISTRIBUTOR has received an official credit memorandum from 3M
authorizing such deduction.
(F) Hold in confidence and not disclose to others 3M's marketing plans,
promotional programs and other 3M confidential information.
(G) Use the name "3M," "Scotch", or any other trademark, trade name, or
service xxxx owned by 3M, in strict accordance with the guidelines furnished by
3M.
The parties have signed this Agreement on the day indicated below.
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Distributor Minnesota Mining and Manufacturing Company
Magnetic Media Division
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By /s/Xxxxxx X. Xxxxxxx By X.X. Xxxxx /s/X.X. Xxxxx
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Title PRESIDENT Date 1/27/87 Title National Sales Manager Date 4-13-87
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5. Prices and Terms and Conditions of Sale.
(A) Prices. The price of Products and other terms and conditions of sale
(including payment terms, F.O.B. point, minimum order requirements) are as
stated in 3M's published price pages. DISTRIBUTOR acknowledges that it has
received a copy of those price pages current as of the date DISTRIBUTOR signs
this Agreement.
(B) Price Changes. Prices may be increased and other terms and
conditions of sale may be changed by 3M at any time with thirty (30) days prior
written notice to DISTRIBUTOR, but the change will not affect any order properly
placed with 3M and ready for immediate shipment before the effective date of the
change. Prices may be decreased without prior notice to DISTRIBUTOR and
DISTRIBUTOR will be invoiced at the new lower price on all orders scheduled for
shipment after the effective date of the price decrease. If the regular
(non-promotion) price of any Product decreases, 3M will credit the price
difference for those Products shipped to DISTRIBUTOR within thirty (30) days of
the effective date of the price decrease upon request to the appropriate sales
branch made within fifteen (15) days of the announced price decrease. The
foregoing does not apply to periodic promotions that may be offered by 3M in
which prices of Products may be directly or indirectly reduced for fixed periods
of time.
(C) Taxes. Prices listed on 3M's price pages do not include sales, use,
excise, or similar taxes. The amount of any present, retroactive, or future
sales, use, excise or similar tax applicable to DISTRIBUTOR's purchase of
Products shall be added to the 3M invoice and paid by DISTRIBUTOR unless
DISTRIBUTOR provides 3M with tax exemption certificates acceptable to the
appropriate taxing authorities.
(D) Purchase Orders. Products may be ordered pursuant to purchase orders
submitted to 3M by DISTRIBUTOR. Acceptance of any purchase orders placed by
DISTRIBUTOR, either by written acknowledgement or by shipment of Products, shall
NOT constitute acceptance by 3M of any of the terms and conditions of such
purchase orders except as to identification and quantity of the Products
involved. All such purchase orders shall be governed by the provisions of this
Agreement.
- Continued on reverse side -
SEE REVERSE SIDE FOR IMPORTANT ADDITIONAL TERMS AND CONDITIONS INCLUDING
DISCLAIMER OF WARRANTIES AND LIABILITIES.
(E) Allocation. If any Product is in short supply, 3M may allocate the
available supply of Product among its customers in the manner that 3M considers
most equitable.
(F) Credit. 3M may change or limit the amount or duration of credit to
be allowed DISTRIBUTOR. 3M may cancel any purchase orders accepted by 3M or to
delay the shipment thereof, if DISTRIBUTOR fails to meet payment schedules or
other credit or financial requirements established by 3M.
(G) Security Interest. For the purpose of securing payment to 3M of the
purchase price of the Products, DISTRIBUTOR hereby grants to 3M a purchase money
security interest under the Uniform Commercial Code in any and all Products
purchased by DISTRIBUTOR under this Agreement and the proceeds thereof,
including all insurance proceeds. DISTRIBUTOR shall execute, and 3M is hereby
authorized as attorney-in-fact to execute and delivery on behalf of DISTRIBUTOR,
any and all financing statements and other instruments which 3M may deem
necessary or desirable to protect or perfect any such security interest.
(H) Product Discontinuance. 3M may discontinue the production or sale
of any Product at any time during the term of this Agreement.
(I) Resale Prices. DISTRIBUTOR shall be free to unilaterally establish
its own resale prices and terms with respect to the resale of Products. 3M and
its employees have no authority to instruct the DISTRIBUTOR as to what its
resale prices must be, nor to interfere with the DISTRIBUTOR's independent
establishment of resale prices.
6. Warranty and Limitation of Remedies and Disclaimer.
(A) 3M warrants that its Products are free of defects in material and
manufacture at the time of shipment. Individual Products may have additional or
different warranties as stated on Product packaging, package inserts, prices
pages, or literature. If any Product is found to be defective in material and
manufacture during the applicable warranty period, 3M's entire liability and
DISTRIBUTOR's exclusive remedy, shall be at 3M's option either (a) repair, or
(b) replacement of the Product, or (c) refund of the purchase price paid by
DISTRIBUTOR for each defective Product, within a reasonable time after written
notification thereof and return of the defective Product to 3M.
(B) THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY,
THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY
ARISING OUT OF A COURSE OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF TRADE
EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT.
(C) If DISTRIBUTOR offers express or implied warranties and limited
remedies which differ from those set forth above, DISTRIBUTOR agrees to assume
full responsibility for all liability, loss, cost, and expense arising out of,
or in connection with the different warranties and limited remedies offered by
DISTRIBUTOR.
(D) 3M shall have no obligations under this warranty with respect to
Products that have been modified or damaged through misuse, abuse accident,
neglect, or mishandling by DISTRIBUTOR.
7. Exclusion of Consequential and Incidental Damages. 3M SHALL NOT UNDER ANY
CIRCUMSTANCES BE LIABLE FOR AN INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR BUSINESS) IN
ANYWAY RELATED TO THE PRODUCTS, ANY OF DISTRIBUTOR'S PURCHASE ORDERS, THIS
AGREEMENT, OR THE TERMINATION OF NONRENEWAL OF THIS AGREEMENT. This exclusion
applies regardless of whether such damages are sought based on breach of
warranty, breach of contract, negligence, strict liability in tort, or any other
legal theory. This exclusion does not apply to claims for personal injury by a
third party.
8. Term and Termination.
(A) This Agreement has an initial Term of one year beginning on the date
3M signs this Agreement. After the initial Term, the Agreement will be
automatically renewed for one year periods, provided DISTRIBUTOR has met or
exceeded the minimum purchase requirement set forth in Paragraph 4(C) for the
then current annual term and has performed all other obligations under this
Agreement. Either Party may elect not to renew this Agreement for any reason by
sending the other Party written notice of its intention not to renew at least
thirty (30) days prior to the expiration of the then current annual term.
(B) Any order placed by DISTRIBUTOR and accepted by 3M after the
expiration or termination of this Agreement is governed by the provisions of
this Agreement, but this place or acceptance of post-expiration orders does NOT
otherwise extend the term of this Agreement.
(C) This Agreement may be terminated by either Party, upon written
notice to the other Party, in the event the other Party fails to fulfill any
provisions of this Agreement. The Party receiving such notice shall have thirty
(30) days, or in the case of late invoice payments, ten (10) days from the date
of receipt thereof, to cure the failure, at which time this Agreement shall
terminate if such failure has not been cured.
(D) The termination or nonrenewal of this Agreement shall not release
DISTRIBUTOR from the obligation to pay any sum that my be owing to 3M (whether
then or thereafter due 3M) or operate to discharge any liability that had been
incurred by DISTRIBUTOR prior to any such termination or nonrenewal.
9. Obligations Upon Termination or Nonrenewal, Upon or in connection with
any termination or nonrenewal of this Agreement, the following provisions shall
apply:
(A) DISTRIBUTOR shall immediately cease to represent itself as an
authorized distributor of 3M with respect to the Products and cease using any
trade name or trademark of 3M. DISTRIBUTOR shall take all appropriate steps to
remove and cancel its listings in telephone books, and other directories or
elsewhere containing any 3M trade name or trademark.
(B) During the period between the giving of the notice of termination or
nonrenewal in paragraph 8(A) or (C) and the effective date of the termination as
set forth in such notice, all Products shall be delivered to DISTRIBUTOR upon a
cash with order basis.
(C) 3M has the option for thirty (30) days after the effective date of
termination or nonrenewal to repurchase from the DISTRIBUTOR all or any part of
the DISTRIBUTOR's inventory of Products at 3M's current published prices.
DISTRIBUTOR may sell, in accordance with the provisions of this Agreement, those
Products in its inventory on the date of such termination or nonrenewal for
which 3M has not exercised its option to repurchase.
10. Excused Performance. 3M shall not be liable for nor be deemed to be in
default on account of any failure to perform or deliver Products if due to any
cause or condition beyond 3M's reasonable control.
11. Relationship of the Parties. The relationship established between 3M and
DISTRIBUTOR by this Agreement is that of a vendor to its vendee. DISTRIBUTOR is
not an agent of 3M and has no authority to bind 3M, transact any business in
3M's name or on its behalf in any manner, or make any promises or
representations on behalf of 3M. DISTRIBUTOR agrees to represent itself only as
an independent business who is an "authorized 3M DISTRIBUTOR." The employees and
agents of DISTRIBUTOR are NOT for any purpose the employee or agents of 3M.
12. No Assignment. DISTRIBUTOR shall not assign its rights or delegate its
duties under this Agreement without 3M's prior written approval.
13. No Waiver. Any failure or delay by either Party in exercising any right
or remedy in one or many instances will not prohibit a Party from exercising it
at a later time or from exercising any other right or remedy.
14. Governing Law. This Agreement and any questions, claims, disputes, or
litigation concerning or arising from this Agreement shall be governed by the
laws of Minnesota.
15. Entire Agreement. This Agreement and the Exhibits referred to in this
Agreement, which Exhibits are incorporated herein and made a part hereof by this
reference, supersede and terminate any and all prior agreements, if any, whether
written or oral, between the Parties with respect to the subject matter
contained herein. Each Party agrees that it has not relied on any
representation, warranty, or provision not explicitly stated in this Agreement
and that no oral statement has been made to either Party that in any way tends
to waive any of the terms or conditions of this Agreement. This Agreement
constitutes the final written expression of all terms of the Agreement, and it
is a complete and exclusive statement of those terms. No part of this Agreement
may be waived, modified, or supplemented in any manner whatsoever (including a
course of dealing or of performance or usage of trade) except by a written
instrument signed by duly authorized officers of the Parties.
AMENDMENT NO. 1 TO AUTHORIZED DISTRIBUTOR AGREEMENT
This Amendment is between MINNESOTA MINING AND MANUFACTURING COMPANY, acting
through its Data Storage Products Division, with its principal place of business
at the 3M Center, Xx. Xxxx, Xxxxxxxxx 00000-0000 (3M) and the undersigned
distributor of 3M's DATA STORAGE PRODUCTS DIVISION (DISTRIBUTOR).
1. SCOPE AND PURPOSE.
(A) 3M and International Business Machines Corporation (IBM) have
entered into an agreement for the distribution by 3M of certain media products
containing the IBM trademark within the United States.
(B) 3M and DISTRIBUTOR desire to amend the Authorized Distributor
Agreement (Agreement) as set forth in this Amendment No. 1 to the Agreement.
2. IBM PRODUCTS.
(A) 3M will make available to DISTRIBUTOR the IBM Enhanced Capacity
Cartridge System Tape (IBM Product), subject to the conditions set forth in this
Amendment No. 1. 3M may from time to time make other media products with the IBM
trademark available to DISTRIBUTOR. The availability of additional media
products containing the IBM trademark, if any, will be communicated to
DISTRIBUTOR through product announcements and/or additions to 3M's price pages
that are periodically sent to DISTRIBUTOR (IBM Products). The inclusion of such
additional IBM Products in 3M's price pages and the ordering of such products by
DISTRIBUTOR will make such products subject to this Amendment No. 1 and to the
Agreement.
(B) DISTRIBUTOR agrees to devote at least the same vigor and resources
to the promotion and sale of IBM Products as DISTRIBUTOR devotes to the
promotion and sale of Products.
3. TERRITORY.
(A) 3M agrees to make IBM Product(s) available to DISTRIBUTOR for resale
to commercial, consumer and governmental end-users located in the United States.
DISTRIBUTOR agrees not to sell, ship or distribute in any manner, IBM Products
to any customer located outside of the United States.
(B) DISTRIBUTOR agrees that any resale, shipment or distribution by
DISTRIBUTOR or its agents or employees to any customer located outside of the
United States may result in discontinuance of the sale of the IBM Product to
DISTRIBUTOR in addition to other remedies available to 3M or IBM.
(C) DISTRIBUTOR understands that IBM is a third party beneficiary of
this Amendment No. 1 and may enforce adherence to its terms.
4. IBM PRODUCT DISCONTINUANCE. 3M may discontinue the sale of any IBM
Product to DISTRIBUTOR at any time during the term of the Agreement upon sixty
(60) days notice to DISTRIBUTOR.
5. ENTIRE AGREEMENT. This Amendment contains the entire understanding of
the parties with respect to the changes to the Agreement. Except as expressly
modified by this Amendment, all other terms and conditions of the Agreement are
unchanged by this Amendment.
The Parties have signed this Amendment No. 1 to the Agreement on the date
indicated below.
DISTRIBUTOR MINNESOTA MINING AND MANUFACTURING CO.
By /s/Xxxx X. Xxxxxxx, III By ___________________________________
____________________________
Name (print) Xxxx X. Xxxxxxx, III Name (print)__________________________
____________________________
Title National Sales Manager Title ________________________________
___________________________
Date 3/4/92 Date _________________________________
____________________________
MENDIST.GL1 Miami Computer Supply
AMENDMENT NO. 2 TO AUTHORIZED DISTRIBUTOR AGREEMENT
This Amendment is between MINNESOTA MINING AND MANUFACTURING COMPANY, acting
through its Data Storage Products
Division, with its principal place of business at the 3M Center, Xx. Xxxx,
Xxxxxxxxx 00000-0000 (3M) and the undersigned distributor of 3M's Data Storage
Products Division (DISTRIBUTOR).
1. SCOPE AND PURPOSE
(A) 3M has made available to DISTRIBUTOR special pricing programs
which provide additional discounts (in the form of rebates) from
those prices in 3M's distributor price pages or special prices
under a drop ship arrangement to a customer location. Current
examples of these special pricing programs include Commercial
Account Bid (CAB) Program, XXXX and GSA.
(B) In order to help ensure that the terms and conditions of the
special pricing programs are followed and that 3M and DISTRIBUTOR
comply with the law, 3M and DISTRIBUTOR desire to amend the
Authorized Distributor Agreement (Agreement) as set forth in this
Amendment No.2 to the Agreement.
2. SPECIAL PRICING PROGRAMS.
(A) The terms and conditions of 3M's special pricing programs are
contained in (i) 3M's "Operating Handbook for Sales and Marketing
Programs," copies and periodic updates of which have been sent to
DISTRIBUTOR; (ii) 3M's applicable Rebate Summary form submitted
by DISTRIBUTOR to 3M in order to obtain the rebate; and (iii)
this Amendment No.2. SALES, SHIPMENT OR DISTRIBUTION OF 3M DATA
STORAGE PRODUCTS BY DISTRIBUTOR OR ITS CUSTOMER OR AGENT IN
VIOLATION OF THE TERMS AND CONDITIONS OF 3M'S SPECIAL PRICING
PROGRAMS DO NOT QUALIFY FOR SPECIAL PRICES UNDER ANY SPECIAL
PRICING PROGRAM.
(B) 3M's special pricing programs are available to DISTRIBUTOR only
for resale of certain 3M data storage products to commercial
end-users; federal, state and local governments; and educational
institutions, which commercial end-users, governments and
educational institutions must be located in the United States.
SALES, SHIPMENT OR DISTRIBUTION OF 3M DATA STORAGE PRODUCTS BY
DISTRIBUTOR OR ITS CUSTOMER OR AGENT TO ANY ACCOUNTS LOCATED
OUTSIDE OF THE UNITED STATES DO NOT QUALIFY FOR SPECIAL
PRICES UNDER ANY SPECIAL PRICING PROGRAM.
3. AUDIT. DISTRIBUTOR agrees to maintain accurate records for all products
shipped under any of 3M's special pricing programs. DISTRIBUTOR agrees that 3M
may confirm adherence to the terms and conditions of 3M's special pricing
programs and the accuracy of the information supplied by DISTRIBUTOR on the
applicable Rebate Summary form or other documents submitted to 3M in order to
obtain a special price, by auditing DISTRIBUTOR'S records at DISTRIBUTOR'S
office during normal business hours after giving DISTRIBUTOR reasonable notice.
DISTRIBUTOR agrees to cooperate with 3M in any such audit.
4. REMEDIES AVAILABLE TO 3M. In the event that (i) 3M finds any violation of the
terms and conditions of any special pricing program by DISTRIBUTOR or its
customer or (ii) DISTRIBUTOR fails to cooperate with 3M in any audit to
determine compliance with the terms and conditions of 3M's special pricing
programs, DISTRIBUTOR agrees that 3M may pursue any or all of the following
remedies, in addition to other remedies available to 3M:
(A) Charge the DISTRIBUTOR the reasonable costs of 3M's audit.
DISTRIBUTOR agrees that 3M may offset the costs of 3M's audit
against the monies otherwise available to DISTRIBUTOR under any
promotional allowance fund from 3M;
(B) Immediately withdraw the availability of the special price;
(C) Disqualify sales by DISTRIBUTOR under any promotional payment
program (e.g., Performance Allowance Fund - PAF or Profit
Enhancement Program - PEP) for those sales in violation of the
terms of any special pricing program;
(D) Invoice DISTRIBUTOR any monies received from 3M under any
promotional payment program (e.g., Performance Allowance Fund -
PAF or Profit Enhancement Program - PEP) for any sales in
violation of the terms of any special pricing program.
DISTRIBUTOR agrees to pay all such invoices within thirty (30)
days after the invoice date;
(continued on the reverse side)
(E) Disqualify DISTRIBUTOR from participation under any future
special pricing programs;
(F) Invoice DISTRIBUTOR the difference between any special price
received by DISTRIBUTOR and the normal distributor price stated
in 3M's DISTRIBUTOR price pages. DISTRIBUTOR agrees to pay all
such invoices within thirty (30) days after the invoice date;
and/or
(G) Terminate the Agreement.
5. ENTIRE AGREEMENT. This Amendment contains the entire understanding of
the parties with respect to the changes to the Agreement. Except as expressly
modified by this Amendment, all other terms and conditions of the Agreement are
unchanged by this Amendment.
The Parties have signed this Amendment No. 2 to the Agreement on the date
indicated below.
DISTRIBUTOR MINNESOTA MINING AND MANUFACTURING CO.
Company Name Miami Computer Supply, Inc. (MCSI)
__________________________________
By /s/Xxxx X. Xxxxxxx, III By /s/Xxxxx X. Xxxx
___________________________ __________________________________
Name (print) Xxxx X. Xxxxxxx, III Name (print)
_____________________________ ________________________________
Title National Sales Manager Title
____________________________ ________________________________
Date August 24, 1992 Date
_____________________________ _________________________________
