EXHIBIT 10.13
***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[**]") OR OTHERWISE IDENTIFIED
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. A COMPLETE
VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.***
GLOBAL IMAGING
1998 MARKETING SUPPORT AGREEMENT
PROGRAM DATE: January 1, 1998-December 31, 1998
DEALER: Xxxxxx, Inc. - Birmingham, AL (Discount & CWO only)
Xxxxxx Office Products - Nashua, NH
Business Equipment Unlimited - Portland, ME
Cameron Office Products - Amesburg, MA
Copy Service & Supply - Statesville, NC
Quality Business Systems - Redmond, WA
Cascade Office Systems - Redmond, WA
Copytronix - Lake Oswega, OR
Eastern Copy Products, Syracuse, NY
COMMITMENT: [**] specific targets by dealer location (page 3).
Extra Bonus[**] If entire Global companies listed above attain [**]
PRICING: [**] Off Dealer Price - Machines*
[**] Off Dealer Price - Accessories*
[**] Off Dealer Price - Supplies & High Mortality
Parts* (1997 list to be updated)
[**] to be added to M&A component commitment through
participation in the 1998 Maximizer Program.
CWO DISCOUNT: 7% - 30 Days - Machines, Accessories
[**] Off Supply Purchases - 30 days net
[**] CWI Parts (Maximizer Only)
REBATES: Gate 1 - 6/26/98 - 45% of annual revenue & 30%
annual digital unit commitment
Gate 2 - 12/31/98 - 55% of annual revenue & 70%
annual digital unit commitment
Each dealership will earn a [**] rebate on all
purchases made from Konica during each 6 month period.
Each 6 month period stands alone with rebates based on
each 6 month period individually. Targets and rebates
are applicable to each individual dealership. Rebates
to be applied to each participating company when
individual gates are attained. Digital unit rebates
subject to timely release and national acceptance of
new digital products.
CO-OP: [**] on purchase of all new machines and accessories,
excluding major accounts. Annual Market Development Co-
op of [**] per month) to be allocated by Xxxxxx Office
Products to participating companies.
[******Certain information on this page has been omitted and filed
separetely with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.]
Global Imaging 1998 Marketing Support Agreement
Page 2
SPIFFS*: 32/3340 [**] 7033/7040 [**]
4345 [**] 7050/7150 [**]
4355 [**] 7060 [**]
7410 [**] Force 50 [**]
9715/9635 [**] Force 60 [**]
3015 [**] 5370 [**]
IP301/302 [**] 6190 [**]
SPECIAL INCENTIVE*: For each analog unit purchased during 1988,
Global will accrue [**] per unit toward a
Konica Sponsored 1998 Sales Incentive Program
(trip, merchandise, etc). [**] per unit will
be accrued for each digital unit purchased
(7033, 7040, 7150, 7050, 7060, F50, F60).
HIRING SUPPORT: Component #1: $2,500 credit for each *Net
------------ ----
New sales representative hired based on
---
individual location plans.
Component #2: $2,500 credit applied to
------------
trade account once each Net New* sales
--------
representative has completed four months of
employment with Global. (Limit on entire
hiring support program is 15)
*Net New is based on the total number of
sales reps employed by each individual
Global/Konica dealerships on a quarterly
basis.
SEGMENT 1A PRICING: Model 1112 Price - $800 Net
Model 1212 Price - $1,300 Net
Model 1015 Price - $1,500 Net
Pricing only applies for minimum order of
50+ Segment 1A units (one order with one
ship) Mix and Match. Above prices are before
cash. No other discounts will be applied. No
Co-op applies towards these purchases,
however, rebates will apply if Gates 1 & 2
are attained on a location by location
basis.
[******Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.]
GLOBAL INDIVIDUAL COMMITMENTS
-----------------------------
1998
1998 Digital Unit Commitment
Revenue Commitment (7033, 7040, 7050, 7150, 7060, F50/60)
------------------ --------------------------------------
Xxxxxx [**] [**]
BEU [**] [**]
Copy Service [**] [**]
Eastern [**] [**]
Copytronix [**] [**]
Quality/Cascade [**] [**]
Total [**] [**]
Accepted By:
X_________________________ __________________________________
Xxxxx Xxxxx Date
[LETTERHEAD OF KONICA APPEARS HERE]
January 20, 1998
Xx. Xxxxx Xxxxx
XXXXXX OFFICE PRODUCTS, INC.
000 Xxxxxxxxx Xxxx
Xxxxxx XX 00000
Dear Xx. Xxxxx:
Enclosed for your records is a copy of a revised 1998 Schedule A to the Dealer
Agreement between XXXXXX OFFICE PRODUCTS INC. and Konica Business Machines
U.S.A., Inc. which supersedes the prior Schedule A previously forwarded to you.
Unless another revision is issued, this revised Schedule A shall remain in
effect until December 31 of this year.
As always, this revised Schedule A to the Dealer Agreement details the minimum
performance levels which are expected with respect to the purchase of Konica
Product for sale and service within your area of sale and service authorization
and responsibility. Your performance will be reviewed by Konica on a quarterly
basis or more frequently, as warranted.
Please remember, the current term of the Dealer Agreement will end on December
31 of this year. If neither you nor Konica chooses not to renew the agreement,
for every year the Dealer Agreement remains in effect, Konica will provide a
revised Schedule A to you which will indicate the approved Products and Assigned
sales Quota for your Authorized Territory for that particular year.
We appreciate your business and look forward to the continuation of a mutually
profitable and enjoyable business relationship between our companies. Should you
have any questions, please do not hesitate to contact either your DSM or me.
Very truly yours,
/s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx
Director, Dealer Operations
cc: Xxxxx Xxxxx, VP Dealer Development
Xxxxx Xxxxxx, DSM
[LETTERHEAD OF KONICA APPEARS HERE]
Dear Dealer Principal,
Enclosed is your 1998 Schedule A. There have been some changes to the content
and the format. Those changes are as follows:
1. The 1998 Schedule A does not include the 1998 Annual Purchase Agreement
section.
2. The 1998 Schedule A Quota Assignment includes two categories, Analog &
Digital. Below is a breakdown of these two categories, on which your unit
and revenue quota will be based.
ANALOG DIGITAL
Segment Model Segment Model Model
--------------- --------------- -----
1A 1112 3 3240 7410
1A 1015 3 3340 7050
1A 1212 4 4345 7060
2 2223 4 4355 7150
2 2230 5 5370M Force-50
2 2330 5 6190M Force-60
9635
3. Section III - Contains amendments to the Terms & Conditions of the Dealer
Agreement.
Also enclosed are the following:
* 1998 Purchase Agreement * 1998 Maximizer Program Application
* 1998 High Mortality Parts List * List of Commonly Asked Questions
Additionally, your 1997 pricing has been extended to January 30, 1998. This will
allow you time to review these programs.
Please sign your Schedule A, as well as the 1998 Purchase Agreement and
Maximizer Programs and mail back this information in the self-addressed stamped
envelope provided. This completed information must be received by Konica prior
to January 30, 1998. Confirmation that your programs have been received, will be
forwarded to you. If Konica does not receive this information by January 30,
1998, Standard Dealer Pricing will go into effect. Furthermore, please include
your most up-to-date financial report for credit review.
If you have any questions regarding the enclosed information, please contact
your Dealer Support Manager or your Sr. Dealer Support Manager to discuss these
new and exciting programs for 1998.
Thank you for your continued support of Konica Business Machines. Good Luck &
Good Selling for 1998.
Sincerely,
/s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx
Director, Dealer Operations
Enclosures
[******Certain information on this page has been omitted and filed
separetely with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.]
This Schedule A Supersedes and cancels any Schedule A bearing an earlier date.
Analog
Digital
Dealer Name XXXXXX OFFICE PRODUCTS INC DEALER # 1025
and 000 XXXXXXXXX XXXX
Xxxxxxxxxx XXXXXX, XX 00000
Locations:
--------------------------------------------------------------------------------------------------
Section I AGREEMENT DATE: 1/17/95
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Section II QUOTA ASSIGNMENT
UNIT REQUIREMENT CALCULATIONS REVENUE REQUIREMENT CALCULATIONS ($000)
----------------------------- ---------------------------------------
TOTAL FINAL MACHINES AND ACCESSORIES SUPPLIES PARTS
PLACEMENTS ADJUSTED UNITS AUSP REVENUE REVENUE REVENUE TOTAL
--------------------------------------------------------------------------------
Analog [**] [**] [**] [**] [**]
Digital [**] [**] [**] [**] [**]
ANNUAL [**] [**] [**] [**]
--------------------------------------------------------------------------------------------------
Section III AMENDMENT TO THE DEALER AGREEMENT BETWEEN KONICA AND DEALER
The Dealer Agreement is amended as follows:
(1) By substituting the following in place of paragraph 12:
12. DURATION OF AGREEMENT
The initial term of this Agreement shall be from its effective date until
December 31 of the year of its original execution. This Agreement will
automatically renew for subsequent terms of one year, from January 1
through December 31, unless either party gives written notice to the other
party, not less than 30 days before the end of the initial term or any
renewal term, of its election not to renew this Agreement. Neither party
shall be liable to or have any responsibility to the other party for
payment of any compensation, damages, or other amounts of money relating to
the termination or non-renewal of this Agreement in the event that either
party elects not to renew this Agreement as provided herein. Dealer shall
pay any debt owed to Konica in accordance with terms.
(2) By adding a new paragraph 25 - ORIGINAL DOCUMENTS:
Konica and Dealer agree (a) that facsimile signatures shall be accepted as
original signatures; and (b) that this Agreement or any document created
pursuant to this Agreement, may be maintained in an electronic document storage
and retrieval system, a copy of which shall be considered an original. Neither
party shall raise any objection to the authenticity of this Agreement or any
document created hereunder, based on either the use of a facsimile signature or
the use of a copy retrieved from an electronic storage system.
(3) By adding a new Schedule B: Non-Exclusive License Agreement
Except as expressly amended herein, the terms and conditions of the Dealer
Agreement shall continue in full force and effect.
Section IV NON EXCLUSIVE PRINCIPAL AREA OF SALES AND SERVICE RESPONSIBILITY
(TERRITORY) See attached detail by county.
Section V Other [For Konica use only]
Warranty
--------
Konica warrants that all new machines purchased by Dealer from Konica shall be
free from defects in material and workmanship for 90 days from delivery by
Konica. Konica warrants that parts sold separately, accessories and supplies
will, at the time of delivery, be free from defects in material and workmanship.
Konica's sole obligation and Dealer's exclusive remedy shall be an obligation by
Konica to repair, or at Konica's option, replace any machine, part thereof,
accessory or supply which is shown, in normal and proper use, to be defective in
material or workmanship within the warranty period. This warranty shall not
apply if the item has been abused, neglected, modified, tampered with or
repaired with the use of parts not recommended by Konica. In no event shall
Konica be liable for any incidental, consequential or punitive damages.
Signature: /s/ Xxxxx Xxxxx Date: 1/15/98
--------------------------- -----------------------------
Title: President Name: Xxxxx Xxxxx
------------------------------- -----------------------------
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Konica Use Only - Dealer Renewal
Konica Approval: [SIGNATURE ILLEGIBLE] Date: 1-19-95
---------------------- -----------------------------
"ANNUAL RENEWAL January 1, 1998"
1025
------------------------------------------------------------------------------------------------------------------------------------
Section IV NON EXCLUSIVE PRINCIPLE AREA OF SALES AND SERVICE RESPONSIBILITY (TERRITORY)
------------------------------------------------------------------------------------------------------------------------------------
NUMBER OF DEALERS BRANCH ALTERNATE
BY PRODUCT LINE (75%)/N(100%)/C(50%) (85%)/N(100%)
ST COUNTY BEQI Analog Digital Analog Digital Analog Digital
------------------------------------------------------------------------------------------------------------------------------------
MA ESSEX 0.269203 1 0.269203 1 0.269203 Y O.201902 Y O.201902 Y 0.171617 Y 0.171617
MA MIDDLESEX 0.647461 3 0.215820 3 0.215820 Y 0.161865 Y 0.161865 Y 0.137585 Y 0.137585
MA NORFOLK 0.297868 3 0.099289 3 0.099289 Y 0.074467 Y 0.074467 Y 0.063297 Y 0.063297
MA SUFFOLK 0.327559 2 0.163779 2 0.163779 Y 0.122835 Y 0.122835 Y 0.104409 Y 0.104409
NH XXXXXXX 0.028340 1 0.028340 1 0.028340 N 0.028340 N 0.028340 Y 0.024089 Y 0.024089
NH XXXXXXX 0.021760 2 0.010880 2 0.010880 N 0.010880 N 0.010880 Y 0.009248 Y 0.009248
NH CHESHIRE 0.032225 1 0.032225 1 0.032225 N 0.032225 N 0.032225 Y 0.027391 Y 0.027391
NH COOS 0.013182 2 0.006591 2 0.006591 N 0.006591 N 0.006591 Y 0.005602 Y 0.005602
NH GRAFTON 0.040660 1 0.040660 1 0.040660 N 0.040660 N 0.040660 Y 0.034561 Y 0.034561
NH HILLSBOROUGH 0.168428 1 0.168428 1 0.168428 N 0.168428 N 0.168428 Y 0.143164 Y 0.143164
NH MERRIMACK 0.062285 1 0.062285 1 0.062285 N 0.062285 N 0.062285 Y 0.052942 Y 0.052942
NH ROCKINGHAM 0.121339 1 0.121339 1 0.121339 N 0.121339 N 0.121339 Y 0.103138 Y 0.103138
NH XXXXXXXX 0.036679 1 0.036679 1 0.036679 N 0.036679 N 0.036679 Y 0.031177 Y 0.031177
NH XXXXXXXX 0.019001 1 0.019001 1 0.019001 N 0.019001 N 0.019001 Y 0.016151 Y 0.016151
-----------------------------------------------------------------------------------
GRAND TOTAL ADJUSTED BEQI 0.924373 0.924373
------------------------------------------------------------------------------------------------------------------------------------
KONICA
KONICA BUSINESS MACHINES U.S.A., INC.
DEALER AGREEMENT
This Agreement entered into as of the 12th day of January, 1995, between Konica
Business Machines U.S.A., Inc. hereinafter called "Konica", a Nevada corporation
having its principal place of business at 000 Xxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, and XXXXXX OFFICE PRODUCTS, INC. doing business as Xxxxxx
Office Products, Inc. and with its principal place of business at 000 XXXXXXXXX
XXXX, XXXXXX Xxxxxx xx Xxxxxxxxx, XX, 00000
(hereinafter called "Dealer")
Konica and Dealer Agree as follows:
OWNERSHIP AND OPERATION OF DEALER
This Agreement has been entered into by Konica with Dealer in reliance (i) upon
the representation and agreement that the following person(s) substantially
participate(s) in the ownership and management of Dealer:
Percentage
Name Address of Interest
/s/ Xxxxx X. Xxxxxx 00 Xxxx xxxx, Xxxxxx XX 50.1%
---------------------- ----------------------- -------------------
______________________ _______________________ ____________________
______________________ _______________________ ____________________
and (ii) upon the representation and agreement that the business of Dealer shall
be conducted at the address set forth in the Agreement as Dealer's principal
place of business. In the event of any change in the ownership of Dealer, or of
any change in the managerial authority or responsibility of the above named
Dealer, or change in the address of Dealer's principal place of business Dealer
shall give prior written notice thereof (except in the event of a change caused
by the death of any such person. No such change or notice thereof shall alter or
modify any of the provisions of this Agreement, unless and until embodied in an
appropriate amendment to this Agreement duly executed by a Vice President of
Konica.
BUSINESS TYPE
Sole Proprietor [_] Xxxxxx office Products,
- Partnership [_] Inc. will continue to
Corporation [X] N.H. operate but Global
---------------------- Imaging Systems, Inc.
State of Incorporation will own all the shares
Ownership is scheduled to change on 1/31/95 to:
Global Imaging Systems, Inc. X.X. Xxx 000000 Xxxxx Xxxxxxx 100%
1. DEFINITIONS AND RELATED PROVISIONS
(a) TERRITORY: the principal area of sales and service responsibility as
set forth in Schedule A hereto.
(b) END-USER: a customer who is acquiring Products for such customer's use
and not for sale.
(c) PROCEDURES: polcies and procedures for the Products issued by Konica
from time to time.
(d) PRODUCTS: Konica equipment as listed in Schedule A.
(e) SALES QUOTAS: The Sales Quota for each Product to be sold to End-Users
in the Territory is as set forth on Schedule A, as amended from time to
time by Konica, in its sole discretion. Konica shall assign Sales Quotas in
a fair and equitable standards of performance which reflect the actual
manufacture and sale of Konica Products and the potential of the
Territory.
(f) NON-EXCLUSIVITY: Dealer's appointment hereunder is non-exclusive and,
Konica may sell Products to End-Users (pursuant to Konica's national
account or government marketing programs or otherwise) and appoint others
as Dealers for the resale of Products in the Territory.
(g) FAIR AND EQUITABLE: Konica and Dealer agree to treat each other and
the End-User in a fair, equitable, and ethical manner throughout the term
of this Agreement and upon termination.
2. APPOINTMENT
Konica hereby appoints Dealer and Dealer accepts appointment as Konica's
dealer for the resale of Products to End-Users in the Territory. The
purpose of this Agreement is to promote the development of the market for
the Products through Konica's sale to the Dealer of reliable Products to be
sold, installed and serviced by the Dealer from Authorized Locations to the
satisfaction of End-Users. In view of the service requirements for the
Products set forth in paragraph 5 and in the Procedures Dealer will market
the Products only from Authorized Locations within the Territory in
accordance with the provisions of this Agreement.
3. SALES
Dealer agrees to promote the goodwill and name of Konica. Dealer undertakes
and agrees to purchase and sell to End-Users within the Territory a
quantity of each of the Products which is at least the amount of the
respective Sales Quotas. In determining whether Dealer meets its Sales
Quotas, Konica shall review the net amount of Products invoiced by Konica
purchased by Dealer and sold by Dealer to End-Users situated within the
Territory.
4. ADEQUATE FACILITIES
Dealer agrees to maintain the Authorized Locations at a suitable place of
business from which to conduct its business in the Territory, provided that
all costs and expenses incurred by Dealer in the performance of this
Agreement (including but not limited to all rentals, salaries, commissions,
taxes, licenses, permits, telephone, telegraph, promotional and advertising
expenses and travelling expenses) shall be paid by Dealer and Dealer shall
not be entitled to reimbursement therefor from Konica.
5. SERVICE OBLIGATIONS
(a) Dealer shall provide, in accordance with Konica's service policy
contained in the Procedures, prompt, efficient and proper installation,
service and maintenance to End-Users for all Products sold by Dealer, and
as may be required, for any National or Major Account service which has
been assigned to Dealer by Konica, and for any Products which are tendered
for service by an End-User at a location within the Territory. Dealer shall
adhere to Konica's installation and service policies as may be set forth in
writing by Konica from time to time.
(b) For purposes of servicing, Dealer agrees to stock at each Authorized
Location a minimum of spare parts for the Products in such quantities as
are necessary to provide adequate service and maintenance for the Products
as set forth in the Procedures Dealer recognizes that End-Users rely on
Konica quality and Dealer therefore will only use Konica Supplies and Spare
Parts in the Konica Products during the term of any warranty or guarantee
and after these periods will inform Konica and customers in writing if it
is using non Konica parts and supplies.
(c) As set forth in the Procedures, Dealer must be service trained by
Konica for each Authorized Location and the requisite number of Dealer's
service technicians for each Authorized Location with respect to Dealer's
field population of Products must complete service school to Konica's
standards. Such training may be provided in such place as Konica may deem
appropriate at Dealer's sole cost and expense.
(d) Dealer will maintain in accordance with the Procedures a service
history with respect to each placement by Dealer of Products for an End-
User and all other service records as may be required by the Procedures.
Konica may during normal business hours inspect Dealer's service facilities
and service records for the Products with the right to make copies of such
records. Konica will maintain confidential dealer service records which
Konica will not use other than for the purpose of assuring service for the
Products.
6. PRICES, DISCOUNTS AND PAYMENTS
(a) Except as otherwise provided in the Procedures, all prices and
discounts are subject to change without notice.
(b) Dealer shall pay to Konica the full amount of the purchase price of the
Products upon due date of invoice of such Products. All accounts unpaid
beyond due date of invoice will bear interest at an annual rate equal to
one percent above the then-prevailing prime rate of interest. If, under
applicable state law, such rate is usurious, then the rate of interest
shall be the maximum legal rate of interest allowable in such state.
(c) In the event Dealer's account with Konica is past due, Konica need not
sell to Dealer nor supply Dealer with Products provided that Konica may in
appropriate circumstances continue to make available parts and supplies
against payment.
(d) All prices are F.O.B. the Konica distribution facility for Products
designated by Konica. Dealer shall bear all costs insurance premiums,
freight and all other charges or expenses incurred after Konica has placed
the Products in the custody of a carrier at the place of shipment to
Dealer.
(e) Taxes with respect to the sale of the products to Dealer, other than
taxes measured by income, will be the responsibility of Dealer; and if paid
or required to be paid by Konica, the amount thereof will be added to and
become a part of the price payable by Dealer.
7. DELIVERY, RISK OF LOSS AND INSPECTION
(a) Konica shall not be liable for failure to ship or for delay in shipment
of Products pursuant to accepted orders where such failure or delay shall
have been due wholly or in part to shortage or curtailment of material,
labor, transportation or utility services, or to any labor or production
difficulty in Konica's plants or those of its suppliers, or to any cause
beyond Konica's control or without Konica's fault or negligence, and Konica
shall not be liable for shipping Products over routes or by means of
transportation specified by Dealer.
(b) Risk of loss of the Products shall pass to Dealer upon Konica placing
such Products in the custody of a carrier for shipment.
(c) Within 10 days following the date of receipt by Dealer, Dealer shall
inspect the Products.
(d) Konica shall in no event have any responsibility for any damage caused
to the Products during shipment. It shall be the sole responsibility of
Dealer to file any appropriate claims for reimbursement with the carrier.
8. WARRANTIES
(a) Konica shall from time to time advise Dealer in writing of the warranty
or warranties applicable to the Products, and shall attend such warranty or
warranties to Dealer in connection with each sale of the Products to
Dealer. Such warranty or warranties given by Konica shall not extend to any
person whatever other than Dealer, and Dealer is expressly prohibited from
extending any warranty or warranties on behalf of Konica to any other
person. Dealer agrees to extend its own warranty or warranties, which shall
be no less extensive than the warranty or warranties extended by Konica to
Dealer, to each purchaser of the Products from Dealer.
(b) THERE SHALL BE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OR ANY OTHER OBLIGATION ON
THE PART OF KONICA WITH RESPECT TO ANY OF THE PRODUCTS EXCEPT THE
WARRANTIES EXTENDED PURSUANT TO THIS PARAGRAPH 8.
(c) In any event and notwithstanding anything herein to the contrary,
Konica's sole liability under any warranties shall be discharged by
replacing or repairing any part or parts which may prove defective under
normal and proper use, within the effective period of the warranty if shown
to be defective by proper evidence submitted by Dealer to Konica. Konica
shall have no liability whatever for any incidental, consequential or
punitive damages.
(d) It is expressly agreed that any and all warranties and/or guarantes as
stated immediately cease and terminate notwithstanding anything herein to
the contrary, in the event that any parts and/or structural components or
appurtenances thereto are altered or modified by Dealer or the End-User
without the express written consent of Konica.
(e) Konica and Dealer shall each fulfill promptly their respective
obligations under such warranty or warranties.
9. REPORTS
(a) Dealer agrees to prepare and submit to Konica, at regular intervals,
accurate service reports.
(b) Dealer shall make and submit to Konica, voluntarily or at Konica's
specific request, studies and proposals necessary for the improvement of
the retail marketing of the Products and/or improvements in the actual
Products, provided that such studies and proposals are not unduly
burdensome in view of the mutual objectives of Konica and Dealer.
10. RESERVATION OF RIGHT
No order shall be deemed binding upon Konica until accepted by Konica, and
Konica reserves the right to reject any order or to cancel the same or any
part thereof after acceptance, for credit or any other reason whatsoever in
Konica's sole discretion.
11. RELATIONSHIP BETWEEN PARTIES
(a) The relationship created between Konica and Dealer is that of supplier
and dealer and neither party, nor any of its employees, dealers, customer
or agents, shall be deemed to be the representative, agent or employee of
the other party for any purpose whatsoever, nor shall they or any of them
have any authority or right to assume or create an obligation of any kind
or nature, express or implied, on behalf of the other party, nor to accept
service of any legal process of any kind addressed to, or intended for, the
other party. Dealer expressly acknowledges that no franchise relationship
has been created and no fee has been paid by Dealer for the rights provided
in this Agreement.
(b) Nothing contained in this Agreement shall be deemed to create a joint
venture, partnership or agency relationship between Konica and Dealer.
Nothing set forth herein shall be deemed to confer upon any person or
entity, other than the parties to this Agreement, a right of action either
under this Agreement or in any manner whatsoever. Dealer agrees and
represents that its employees are and shall remain the employees of Dealer,
and nothing contained in this Agreement shall be construed to create
an employment agreement or arrangement between Konica and Dealer.
12. DURATION OF AGREEMENT
The term of the Agreement shall be one year from the date hereof and will
be automatically renewed for additional one-year periods unless either
party gives written notice to the other party not less than 30 days before
the end of the initial term or any renewal term.
13. TERMINATION
(a) Konica may terminate this Agreement by giving Dealer 30 days written
notice in the event Dealer shall have failed to fulfill or perform any one
or more of the duties, obligations or responsibilities undertaken by it
hereunder.
(b) In addition, Konica may terminate this Agreement by giving Dealer
written notice, effective immediately, in any one of the following events:
(i) if Dealer shall continue in default of any duty, obligation or
responsibility imposed on it by this Agreement, other than as provided
for in subparagraph (a) of this paragraph, for 30 days after written
notice to Dealer of such default;
(ii) if Dealer shall sell Products to any person other than an
End-User pursuant to the provisions of this Agreement;
(iii)if Dealer shall alter or obliterate the serial number on any
Product or otherwise alter or modify the Products without the express
written consent of Konica;
(iv) any assignment or attempted assignment by Dealer of any interest
in this Agreement without Konica's prior written consent;
(v) any sale, transfer or relinquishment, voluntary or involuntary by
operation of law or otherwise, of any interest in the direct or
indirect ownership of Dealer;
(vi) if Dealer becomes insolvent, files or has filed against it a
case in bankruptcy, makes a general assignment for the benefit of its
creditors or has a receiver or trustee appointed for its business or
properties.
(c) In the event of termination of this Agreement:
(i) Dealer shall promptly return to Konica all documents, materials
and tangible property supplied without charge by Konica and shall
maintain confidential any confidential information received from
Konica which is incapable of return;
(ii) with respect to all new unused Products and parts in Dealer's
inventory, Konica shall have the option to purchase from Dealer, any
or all such Products or parts at the prevailing price for such
Products or parts charged to dealers by Konica at the date of
termination or at such price as the parties may mutually agree to. As
to any Products or parts so purchased by Konica, Dealer will deliver
such Products or parts to Konica free and clear of claims and
encumbrances and will bear all costs and expenses in returning them to
Konica.
(d) Any termination of this Agreement shall be without prejudice to any
right which shall have accrued to either party hereunder prior to such
termination.
(e) Dealer's right to request a Business Technology Association (BTA)
Appeal Board.
(i) upon receipt of a notice of termination, Dealer shall have 30 days
within which to make written demand of Konica for an Appeal Board
review of the termination. Dealer's written demand shall be
transmitted to Konica and a copy shall be mailed to the Business
Technology Association. Dealer's failure to demand review within such
30 day period shall waive Dealer's right to Appeal Board Review.
(ii) if Dealer demands an Appeal Board review, a three-member Appeal
Board shall be selected in the following manner. Konica and Business
Technology Association shall each select one member of the Appeal
Board. The two members of the Appeal Board to selected shall agree on
the selection of a third member or, if they are unable to agree, a
third member shall be selected by the New York City Branch of the
American Arbitration Association from its panel of commercial
arbitrators.
(iii) the sole question submitted to the Appeal Board shall be whether
the termination of Dealer was in accordance with the provisions of
this Agreement. If the Appeal Board shall find that the termination
was in accord with this Agreement, then the termination shall remain
or become effective, as the case may be, as of the original effective
date of the termination and Dealer shall pay all fees and expenses of
the Appeal Board. If the Appeal Board shall find that the termination
of Dealer was not in accord with this Agreement, then Konica shall
reinstate Dealer and pay the fees and expenses of the Appeal Board.
The Appeal Board shall have no authority to make findings or grant
relief beyond that expressly authorized by this paragraph.
(iv) if Dealer waives its rights to BTA review as set forth above, or
if either party still believes that the decision of the BTA Appeal
Board is not satisfactory, then the parties agree to Binding
Arbitration. Any dispute arising out of or relating to this contract
or the breach, termination or validly thereof, which has not been
resolved by nonbinding means as provided herein, shall be finally
settled by arbitration conducted expeditiously in accordance with the
American Arbitration Association Commerical Arbitration Rules by three
independent and impartial arbitrators, of whom each party to this
agreement shall appoint one. Any Arbitrator not appointment by a party
shall be selected from the CPR Panels of Neutrals. The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C.
Section 1-16, and judgment upon the award rendered by the
Arbitrator(s) may be entered by any court having jurisdiction thereof.
The place of arbitration shall be Hartford, Connecticut unless the law
of the jurisdiction in which Dealer's primary place of business is
situated requires binding arbitration to take place in that
jurisdiction, in which case the arbitration shall take place in that
state Capital. The Arbitrator(s) shall not have the power to award
incidental, consequential or punitive damages nor award injunctive
relief.
(f) Any claim arising out of or relating to this Agreement or the breach,
termination or validity thereof, must be brought within one (1) year of its
accrual or it shall be deemed waived.
14. PATENTS AND TRADEMARKS
(a) Konica shall indemnify Dealer against any costs, loses, damages or
liability incurred by Dealer as the result of any third party's claim of
infringement of its patent, copyright or trademark which claim arises out
of the sale of Products in the Territory by Dealer during the term of this
Agreement. Dealer shall immediately notify Konica in writing of such claim
or demand together with all documentation related to such claim. Konica
shall have the sole right, control, and defense, thereof, and Dealer agrees
that it will not settle any such claim against itself without the prior
written consent of Konica. Provided however, that Konica shall not
indemnify Dealer with respect to any claim relating to Product(s) which
is/are manufactured according to Dealer's instructions, or modified by
Dealer or combined with other non-Konica products, equipment, systems
and/or processes. Failure of Dealer to provide timely notification of claim
to konica as described above shall relieve Konica of its obligation to
indemnify Dealer.
(b) Dealer shall not alter, obliterate, deface or remove any trade name,
brand, trademark, service xxxx or serial number carried on any Product or
on the packaging in which such Product is enclosed or add any name, brand,
trademark, or service xxxx to the Products. Dealer shall not use any part
of Konica or Konica affiliate name, trade name, trademarks, service marks,
or otherwise in identifying its business. Dealer shall not acquire, and
specially disclaims, any right or license in the names "Konica Business
Machines U.S.A., Inc.", "Konica", or the name of any affiliate, any names
or numbers relating to the Products or other Konica or Konica affiliate
products, and any other Konica or Konica affiliate trade names, brands,
trademarks or service marks, all of which are and shall remain the sole and
exclusive property of Konica or its affiliates. Dealer's sole right under
this Paragraph shall be to state orally or in writing that it is an
authorized dealer for certain Konica Products in the Territory, but no such
statement may include or refer to any Konica or Konica affiliate trademark
without consent of Konica.
(c) Upon the termination of this Agreement for any reason whatsoever,
Dealer shall except as Konica may specifically authorize in writing,
immediately cease and desist from carrying on any and all use of the name
"Konica", or other trademarks, trade names, words or symbols of any nature
indicating, explicitly or implicitly, that it is an authorized Konica
Dealer of Konica Products or other Konica goods and services.
(d) Dealer shall promptly notify Konica in writing of any claims, demands
or suits based upon or arising from the use of the xxxx "Konica" or any
other Konica trademark or trade name used in connection with the Products,
or of any applications for registration and registrations of conflicting
trademarks, and all infringements, limitations, illegal use or misuse of
"Konica" or any other Konica trademarks, trade names, words or symbols used
in connection with the Products which come to Dealer's attention.
15. FORCE MAJEURE
Neither party shall be responsible for delays or failure in performance of
this Agreement (other than failure to pay any amounts due) to the extent
that such party was hindered in its performance by any act of God, civil
commotion, labor dispute unavailability or shortages of materials or any
other occurrence beyond its reasonable control.
16. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may be
assigned by either party without the prior written consent of the other
party.
17. NOTICE
Unless otherwise specified herein, all notices required or permitted to be
given hereunder shall be in writing and sent by mail to the principal
office of the other party indicated herein or at such other address as the
parties may describe in writing.
18. GOVERNING LAW
This Agreement and performance hereunder shall in all respects be governed
by and construed in accordance with the laws of the State of Connecticut
without regard to choice of law principles.
19. ENTIRE AGREEMENT
This Agreement is the full and complete statement of the obligations of the
parties relating to the subject matter hereof, and supersedes all previous
agreements, understandings, negotiations and proposals. No provisions of
this Agreement shall be deemed waived, amended, or modified by either party
unless such waiver, amendment or modification shall be in writing and
signed by a duly authorized officer of both parties.
20. NON-WAIVER
The failure or refusal by Konica to insist upon the strict performance of
any provision of this Agreement or to exercise any right in any one or more
instances or circumstances shall not be construed as a waiver or
relinquishment of such provision or right nor shall such failure or refusal
be deemed a custom or practice contrary to such provision of right.
21. SEVERABILITY
In case any one or more of the provisions contained in this Agreement shall
be invalid, illegal or unenforceable in any respect the validity, legality,
or enforceability of the remaining provisions contained herein shall not in
any way be effected or impaired thereby.
22. KONICA'S MAJOR ACCOUNTS
Dealer understands and agrees that is has no interest in Konica's national
or major accounts and it is within Konica's sole discretion which, if any,
Dealer shall provide such service. Dealer shall provide service to Konica's
National or Major Accounts upon request of Konica. Payment for service for
National or Major Accounts shall be as provided in the Procedures.
23. ACCEPTANCE
This Agreement shall become binding upon Konica and Dealer only upon
approval, acceptance and execution hereof by a Vice-President of Konica at
Konica's Home Office in Windsor, Connecticut.
DEALER
By [SIGNATURE ILLEGIBLE] [SIGNATURE ILLEGIBLE]
------------------------------ ------------------------------
Witness
Title President
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KONICA BUSINESS MACHINES U.S.A, INC.
By
______________________________ ______________________________
Witness
Title
__________________________
