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Exhibit 10.27
PURCHASING AGREEMENT
BETWEEN
GATEWAY AND
RENT-WAY
This Purchasing Agreement ("Agreement") is made this 28 day of April,
2000 ("the Effective Date), between Gateway Companies, Inc., a Delaware
corporation, acting through its Gateway Business division with principal offices
at 00000 Xxxxxxxxxx Xxx, Xxxx Xxxxxx XX 00000 ("Gateway"), and Rent-Way Inc., a
Pennsylvania corporation ("Rent-Way"), with its principal place of business at
Xxx Xxxx-Xxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000.
WHEREAS, Gateway will purchase $7 Million of Rent-Way common stock,
subject to the common stock purchase agreement, the execution of which is
contingent upon the execution of this Agreement, and
WHEREAS, Rent-Way desires to purchase products listed on Gateway's
standard Commercial Price List as well as other products which include but are
not limited to software, web TV, internet access, including distribution of
xxxxxxx.xxx, internet access appliances and devices, computer related training,
application, etc. ("Computer Technology") for the internal requirements of
Rent-Way stores and corporate offices, and Gateway desires to sell to Rent-Way
Computer Technology which is available upon request from Gateway; and
WHEREAS, Rent Way desires to purchase personal computers ("Customer
PCs") and other Gateway computer products from Gateway for all requirements of
Rent-Way's leasing/rental business, and
WHEREAS, the parties desire to enter into this Agreement establishing
the terms and conditions of the sale of Computer Technology and Customer PCs.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth below, the parties agree as follows:
1. SCOPE OF AGREEMENT
1.1 For the term of this Agreement, Gateway will be the sole
supplier to Rent-Way for Computer Technology for internal
requirements and corporate offices of Rent-Way stores provided
that the Gateway Computer Technology shall be compatible with
Rent-Way's existing infrastructure, suitable for Rent-Way's
internal needs, and competitively priced.
1.2 Gateway will be the sole supplier to Rent-Way for Customer PCs
and Rent-Way will purchase all of Rent-Way's requirements for
Customer PCs for the initial three (3) year term of the
Agreement. For each Customer PC purchased by Rent-Way, Rent-Way
shall prepay Gateway for twelve (12) months of internet service
provider ("ISP") service.
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2. GENERAL OBLIGATIONS
2.1 Gateway will display prominent interior signage provided by
Gateway at the PC rental Point of Sale (P0S). Gateway may also
place sales and marketing communications in the PC rental point
of sale including but not limited to Gateway screensavers on
all Customer PCs, start page and menu page. POS merchandising
related to Gateway will have placement that is at least as
prominent as Rent-Way provides to other partners.
2.2 Rent-Way will bundle Customer PCs with ISP service, which will
be provided to Rent-Way by Gateway. During the term of this
Agreement, Gateway will have the exclusive right to market and
sell Computer Technology in Rent-Way stores. Gateway will not
enter into any business arrangement similar to that described
herein in the continental United States with Rent-A-Center,
Inc., Xxxxx Rents, Rainbow Rentals, Rent Rite, Rent Wise or Ace
Rentals, ("Rent-Way Competitors") except that nothing contained
herein shall preclude Gateway sales of PC to such entities for
their intemal use. Gateway will use commercially reasonable
efforts to negotiate a competitive rate for ISP services
utilizing the AOL infrastructure and will arrange for Rent-Way
senior management to meet with AOL senior management as
required. The ISP price charged to Rent-Way will be no higher
than nine dollars ($9.00) per month per Customer PC. Gateway
will select one ISP to be offered on Customer PCs. The ISP
options may include xxxxxxx.xxx, AOL, Compuserve, or other
mutually agreed upon ISP. Gateway will work with Rent-Way to
develop a solution to resetting user ID numbers for ISP as
Customer PCs are returned to the Rent-Way location.
2.3 Promptly upon execution of this Agreement, the parties shall
name a representative to the Joint Operating Review Team. The
Joint Operating Review Team shall meet at least once each
calendar quarter (beginning with the calendar quarter ending
June 30, 2000) to discuss ways to address any operational
issues between the parties and to facilitate successful
implementation of the transactions contemplated by this
Agreement. The Joint Operating Review Team will also explore
other business opportunities, including but not limited to
Gateway's participation in Rent-Way kiosks at grocery stores,
joint advertising, marketing and promotions, technology
training at Gateway Country Stores, international
opportunities, customer referral arrangements, real estate
locations, and the possibility of establishing hourly PC/ISP
rental stations located in Rent-Way's stores.
3. SERVICE AND SUPPORT
3.1 Rent-Way will use its best efforts to refurbish and service
Customer PCs upon return of such equipment from customers in
order to ensure the quality of the customer's experience and
protect the Gateway brand and image. The warranties to be
provided for Gateway Computer Technology and Customer PCs are
contained in Exhibit A. (the "Warranties") Rent-Way will be
purchaser of record on Customer PCs and therefore retains the
rights granted to them, including the
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right to enforce the rights and obligations granted to
Rent-Way, under the Warranties. Gateway will use reasonable
commercial efforts to provide any technical support required
under the terms of the Warranties directly to the rental
customers of Rent-Way. To facilitate the technical support
requirements, Gateway and Rent-Way will work together to
develop appropriate service and support levels and procedures.
Gateway and Rent-Way will work together to ensure the quality
of the Customer PCs and Gateway's brand and image. In the event
Gateway or Rent-Way is dissatisfied with such service and
support, after providing the other party notice and an
opportunity to re-mediate any service and support issues, the
dissatisfied party shall refer the matter to the Joint
Operating Review Team for resolution.
3.2 Each Customer PC shall include Gateway's standard consumer
start-up screen, including any icons for xxxxxxx.xxx or other
services. Rent-Way shall have the right of first refusal on the
same or similar terms before Gateway will sell or offer any
Rent-Way Competitor the right to display a banner ad on
xxxxxxx.xxx or an icon on the Gateway PC start-up page.
4. PURCHASE REQUIREMENTS
Rent-Way will purchase or lease at least 170,000 Gateway Customer PCs
by the end of 18 months from the date of execution of the Agreement. If this
target is not met or Rent-Way has not achieved at least 1/3 of this target
within the first 9 months following the execution date of the Agreement, Gateway
will have the option to terminate the exclusivity provisions stated in Section 2
of this Agreement.
5. EXISTING RENT-WAY COMPUTER EQUIPMENT
Rent-Way currently owns Compaq and Dell personal computers ("PCs")
which it rents to its customers. The parties will explore alternatives for
disposition of this equipment including but not limited to i) the continued
rental of such PCs by Rent-Way together with ISP service provided by Gateway;
and ii) Gateway's purchase of these PCs at agreed upon purchase price. The
parties will amend this Agreement or enter into a separate agreement to evidence
their decisions regarding existing Rent-Way computer equipment.
6. EMPLOYEES OF RENT-WAY
Gateway and Rent-Way will assist in developing training materials and
collateral support for Rent-Way employees regarding the rental of Customer PCs.
7. PRICING AND PAYMENT
Pricing for Computer Technology for internal use of Rent-Way stores and
corporate Offices is contained within Exhibit B. The pricing for Customer PCs is
contained within Exhibit C. Gateway shall invoice Rent-Way or its affiliates
with payment due net thirty (30) days from the date of the invoice.
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8. INDEMNIFICATION
8.1 Gateway warrants that the Computer Technology and Customer PCs and
any parts thereof, collectively the ("Products") shall be delivered free of any
rightful claim of any third party for infringement of any United States patent,
copyright, or trademark or other intellectual property right. Gateway shall
indemnify and defend Rent-Way from any and all claims, suits, damages, costs,
expenses or liabilities, including, without limitations, reasonable fees and
expenses of attorneys and other professionals, actually incurred by Rent-Way as
a result of any United States claim of infringement by a third party. In the
event that the Products, or part thereof, are held to constitute an infringement
and the use for the intended purposes of the Products or part is enjoined,
Gateway shall, at its expense and sole option, either procure for Rent-Way the
right to continue using the Products or part; or replace same with
non-infringing Products or part; or modify same so it becomes non-infringing; or
remove the Products or part and refund the Product purchase price (less
reasonable depreciation and/or amortization). Gateway assumes no responsibility
or liability under this Section 8.1 for (a) any product or part not supplied by
it; (b) for any Product or part supplied by it which has been changed, modified,
adapted or refitted without the express written authorization of Gateway; (c)
any Product or part not within Gateway's standard inventory, but purchased by
Gateway at the specific direction of Rent-Way; (d) any Product or part
manufactured to Rent-Way's design or (e) any claim of infringement arising from
the use of any Product in conjunction with any other products as a combination
not furnished by Gateway. THIS INDEMNITY IS GATEWAY'S SOLE LIABILITY AND
RENT-WAY'S SOLE REMEDY FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR
TRADE SECRET.
8.2 Gateway shall indemnify and defend Rent-Way from any and all
claims, suits, damages, costs, expenses or liabilities, including, without
limitation, reasonable fees and expenses of attorneys and other professionals
actually incurred by Rent-Way arising out of or related to the death or injury
to any person or damage to tangible property which is the result of Gateway's
negligence.
8.3 Rent-Way shall indemnify and defend Gateway from any and all
damages, costs, expenses or liabilities, including, without limitation,
reasonable fees and expenses of attorneys and other professionals, actually
incurred by Gateway arising out of or relating to (i) misrepresentation, or
breach of warranty or covenant by Rent-Way under this Agreement, (ii) any actual
or alleged act or omission of Rent-Way related to its performance of its
obligations,(iii) acts or alleged acts of Rent-Way's rental/leasing clients
using Customer PCs (iv) death or injury to any person or damage to any tangible
property which is the result of (a) any Products or part not supplied by
Gateway, (b) any Products or part supplied by Gateway which has been changed,
modified, adapted or refitted without the express written authorization of
Gateway, (c) any Products or part not within Gateway's standard inventory, but
purchased by Gateway at the specific direction of Rent-Way, (d) any Products or
part manufactured to Rent-Way's design, or (e) any claim of infringement arising
from the use of any Products in conjunction with any other products as a
combination not furnished by Gateway.
8.4 Notice of Claim, Right to Control Defense.
a) If an indemnified party receives notice of the
assertion of a claim, the commencement of a suit,
action or proceeding, or the imposition of any
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penalty or assessment by a third party as set forth in
Sections 8.1, 8.2 and 8.3 above (collectively "Third
Party Claim") and the indemnified party intends to
seek indemnification, then the indemnified party shall
promptly give written notice to the indemnifying party
of the Third Party Claim, but in any event within
seven (7) days of the Third Party Claim. The failure
by an indemnified party to notify the indemnifying
party of a Third Party Claim will not relieve the
indemnifying party of any indemnification
responsibility under this Section 8, except to the
extent the failure, if any, to provide the notice
materially prejudices the ability of the indemnifying
party to defend the Third Party Claim.
b) Upon receipt of written notice of a Third Party Claim
and written acknowledgment of responsibility with
respect to its indemnification obligations, the
indemnifying party shall have the right to exclusively
control the defense, compromise or settlement with its
own counsel and at its own expense. The indemnified
party will be entitled (at the indemnified party's
expense) to participate in the defense of any Third
Party Claim with its own counsel.
c) In the event that the indemnifying party does not
undertake the defense, compromise or settlement of a
Third Party Claim in accordance with Section 8, the
indemnified party shall have the right to control the
defense or settlement of a Third Party Claim with
counsel of its own choosing; provided, however, that
the indemnified party shall not settle or compromise
any Third Party Claim without the indemnifying party's
prior written consent which consent shall not be
unreasonable withheld or delayed.
8.5 Any damage, loss, injury, cost or expense indemnified against in
this Section 8 shall be for actual, out-of-pocket costs of the indemnified party
and shall not include any amount representing loss of profit or loss of business
or special, indirect, consequential or punitive damages to the indemnified party
of any nature whatsoever.
8.6 No party to this Agreement shall be required to defend or indemnify
any other party under this Section 8, if the damage, loss, injury, cost or
expense is finally adjudged to have been caused by the indemnified party's own
negligence or willful misconduct.
9. TERM
The term ("Term") of this Agreement shall be for three (3) years from
the date of this Agreement and may be renewable for additional three-year terms
if either party gives a notice of intent to renew at least 90 days before the
expiration of a term and the other party does not indicate its unwillingness to
renew the agreement within 30 days of receipt of a renewal notice from the other
party.
10. TERMINATION
Either party will have the right to terminate the Agreement in the
event of: (i) a material breach by the other party, an example of which is the
price of ISP service rising above $9.00 per month per Customer PC, which is not
cured within 30 days of receipt of notice thereof;
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(ii) bankruptcy of the other party, (iii) the Parties fail to resolve any
material service and support issue after referral to the Joint Operating Team,
or (iv) the parties are unable to resolve any material issue regarding pricing
or warranties after reasonable efforts toward resolution are conducted in
accordance with the dispute resolution provision of Section 17.1. Gateway will
have the right to terminate the Agreement in the event of a change in control of
Rent-Way.
11. CONFIDENTIALITY
Each party agrees and covenants that it will keep in confidence and
prevent the acquisition, disclosure, use or misappropriation by any person or
persons of all types of and/or quantities of components, types of systems, new
Products development, technical information, data, formulas, patterns,
compilations, programs, devices, methods, techniques, marketing plans, business
procedures, customer and supplier lists, agreements with any suppliers,
techniques or know-how, processes or other proprietary or confidential or
intellectual proprietary information received in writing (hereafter
"Confidential Information") which is received from or concerns the other party;
provided, however, that neither party shall be liable for disclosure of any
Confidential Information if the same is disclosed with the prior written
approval of the other party or is otherwise publicly available. Each party
agrees that if it breaches this confidentiality covenant, the other party shall
suffer irreparable injury and shall be entitled immediately to a temporary and
permanent injunction.
12. FORCE MAJEURE
In the event that either party is prevented from performing or is
unable to perform any of its obligations under this Agreement, except for
payment, due to any Act of God, fire, casualty, flood, war, strike, lockout,
epidemic, destruction of the production facilities, riot, insurrection,
production material or personnel unavailability, or any other cause beyond the
reasonable control of the party invoking this section, and if such party shall
have used reasonable efforts to mitigate its effects and given prompt written
notice to the other party, its performance shall be excused, and the time for
performance shall be extended for the period of delay or inability to perform
due to such occurrences.
13. COMMUNICATIONS
Any notice, request, consent or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given (a) when received if personally delivered, (b) within five (5)
days after being sent by registered or certified mail, return receipt requested,
postage prepaid, to the parties (and to the persons to whom copies shall be
sent), or (c) when a confirmation of proper transmission has been printed if
sent by fax or telegram (but only if followed up by prompt confirmation by
personal delivery or mail in accordance with the foregoing clauses), at the
respective addresses of the parties set forth below:
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If to Rent-Way: If to Gateway:
--------------- --------------
Rent-Way Inc. Gateway Companies, Inc.
One Rent-Way Place 00000 Xxxxxxxxxx Xxx
Xxxx, Xxxxxxxxxxxx 00000 Xxxx Xxxxxx, XX 00000 LF-04
Attn: Attn: Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxx, Contract Manager
Chairman and Chief Executive (phone) 000-000-0000
(phone) (000) 000-0000
000-000-0000 (fax)
xxxxx.xxxxxxx~xxxxxxx.XXx
14. WAIVER
Failure of either party to enforce at any time, or for any period of
time, any provision of this Agreement, shall not constitute a waiver of that
provision or in any way affect the validity of this Agreement.
15. INDEPENDENT CONTRACTOR
The parties to this Agreement are independent contractors and are in no
way the other party's legal representative, or agent. Neither party under any
circumstances shall be deemed to be the agent or representative of the other
party, nor shall either party have the right to enter into any contracts or
commitments in the name of the other party or otherwise to bind or commit the
other party.
16. SURVIVAL OF OBLIGATIONS
Upon termination of this Agreement pursuant to Section 10, the parties
shall have no further rights and obligations under this Agreement, except with
respect to Sections, 8, 11, 13, 14, 15, 16, 17 and 18 which shall survive the
termination of this Agreement.
17. DISPUTE RESOLUTION
17.1 All disputes arising out of or in connection with this Agreement
shall be handled as follows. A representative of the party who raises the
dispute will notify the other party's representative in writing of the dispute,
and the non-complaining party will exercise good faith efforts to resolve the
matter by mutual agreement as expeditiously as possible within ten (10) business
days. Failing such resolution, the matter will be submitted to a senior manager
of each party for resolution by mutual agreement as expeditiously as possible
within ten (10) business days. Failing such resolution, the matter will be
submitted to an executive officer of each party for resolution by mutual
agreement as expeditiously as possible within thirty (30) calendar days.
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17.2 Failing resolution by the parties' executive officers, the dispute
shall be submitted to arbitration in accordance with the provisions contained in
Section 9, Dispute Resolution, of the then-current Gateway(TM) Business Products
Limited Warranty and Terms & Conditions Agreement, (4/00) (documents #8506156
and #8505198) attached hereto as Exhibit A.
17.3 Notwithstanding the foregoing procedures, each party shall have
the right to seek immediate injunctive or other judicial relief against or from
any ongoing or impending injury or damage which the foregoing dispute resolution
procedure would not reasonably- avoid.
18. COMPLETE AGREEMENT
This Agreement, together with Exhibits A, B, and C and the common stock
purchase agreement referred to in the recitals hereof, sets forth the entire
Agreement between the parties and supersedes all previous communications,
representations or agreements, whether oral or written, with respect to the
subject matter hereof. Terms and conditions inconsistent with, contrary to or in
addition to the terms and conditions of this Agreement shall not be added to or
incorporated into this Agreement, by subsequent Order or otherwise, and any such
attempts to add or incorporate such terms and conditions are hereby rejected.
The terms and conditions of this Agreement shall prevail and govern in the case
of any such inconsistent or additional terms referenced or included in any other
agreements or documentation related to this Agreement including without
limitation any Gateway Business Product Limited Warranty and Terms and
Conditions Agreement applicable to the Gateway products covered hereby. Any such
terms and conditions that purport to modify this Agreement in any way may only
be added or incorporated by a written modification of this Agreement that is
signed by both parties.
19. EMPLOYER SUPPORTED PROGRAMS
The Parties shall use best commercial efforts to execute within 30 days
of the execution of this agreement, based upon mutual agreement on terms and
conditions, an employer supported program ("ESP") for Rent-Way employees. The
ESP program gives Rent-Way the ability to provide personal computers and
internet access to Rent-Way employees, and subsidize a portion or all of the
cost.
IN WITNESS WHEREOF, THIS AGREEMENT HAS BEEN EXECUTED BY THE DULY AUTHORIZED
REPRESENTATIVES OF THE RESPECTIVE PARTIES, AS OF THE DATE FIRST WRITTEN ABOVE.
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GATEWAY COMPANIES, INC. RENT-WAY INC.
By: /s/ Xxxxxxx Tarcott By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------- --------------------------
Name: Xxxxxxx Tarcott Name: Xxxxxxx X. Xxxxxxxxxxx
--------------------------- --------------------------
Title: VP Sales Title: Chairman & CEO
--------------------------- --------------------------
Date: 4/28/00 Date: 4/28/00
--------------------------- --------------------------
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EXHIBIT A
WARRANTY ON GATEWAY COMPUTER TECHNOLOGY AND CUSTOMER PCS
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Exhibit B
Purchasing Requirements, Obligations and Warranty for Rent-
Way Stores and Corporate Requirements
1. PURCHASING, ORDERING AND SHIPPING
1.1 This Agreement with its terms and conditions applies to all
purchase orders and other documents of purchase ("Orders") which Rent-Way may
place with Gateway for the Gateway Computer Technology during the term of this
Agreement.
1.2 Rent-Way may order from Gateway by telephone, facsimile, mail or
electronic mail. Acceptance by Gateway of the Order shall occur (a) when the
Order is entered into Gateway's system, (b) when an Order number is provided to
Rent-Way by facsimile or electronic mail, if requested by Rent-Way, or (c) when
assembly of the Products commences, whichever occurs first.
1.3 Delivery shall be FOB Destination as identified in the Order. Title
and risk of loss shall pass from Gateway to Rent-Way at the delivery point.
1.4 As an accommodation to Rent-Way and without Rent-Way's prior
approval, Gateway may make product substitutions when the products ordered are
unavailable, provided that the substituted products are of equal or greater
functionality than those contained on the original Order and that Gateway
notifies Rent-Way of such substitution at the time of delivery. Rent-Way may
reject any such product substitutions within ten (10) days of delivery.
1.5 Gateway reserves the right to discontinue any products at any time
without notice to Rent-Way.
1.6 Rent-Way shall pay all shipping costs for returned products, except
in the case of shipments made in error by Gateway and rejections by Rent-Way of
non conforming or damaged products or substitute products shipped by Gateway in
accordance with paragraph 1.4.
2. RESPONSIBILITIES OF RENT-WAY
2.1 Orders submitted by Rent-Way pursuant to this Agreement shall
include the following information:
a) A description of the products ordered, including any
Gateway numerical/alphabetical part number or
configuration identification, quantity, unit price and
total price.
b) The location where the products are to be shipped or
the services to be performed and the "Xxxx To" address.
c) Rent-Way's Order number.
d) Rent-Way's Unique ID Code for Computer Technology is
00NAC10264.
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2.2 Rent-Way may initiate changes or additions to previously accepted
Orders by submitting a modification of the Order to Gateway with appropriate
reference to the original Order. Upon Gateway's written acceptance of the
modification or addition, Gateway shall process the Order in accordance with the
pricing terms and conditions of this Agreement.
2.3 Rent-Way shall notify Gateway within ten (10) days of delivery of
the products of any excess quantities delivered to Rent-Way.
2.4 Rent-Way shall not, without prior written authorization from
Gateway, re-sell, market, rent, lease, install or engage in the business of
providing services for Gateway products in any way or through any channel,
whether direct or indirect, wholesale or retail, including but not limited to
any type of retail environment, including but not limited to any type of store,
shop, physical premises or by direct mail advertising, newspaper advertising,
electronic commerce or solicitation over the Internet, or any other manner.
3. RESPONSIBILITIES OF GATEWAY
3.1 With respect to ordering, shipping and billing, Gateway shall
undertake the following responsibilities:
a) Ship the products listed on the Order complete unless
otherwise instructed by Rent-Way in writing.
b) Ship the products to the destination specified in the
Order in accordance with Rent-Way's specific routing
instructions.
c) Enclose one itemized packing list with each shipment.
d) Xxxx the Order number on subordinate documents and
shipping papers and on all packages.
e) Submit invoices showing the Order number and send to
the directed location for payment.
f) Submit a separate invoice for each shipment or Order.
g) Subject to paragraph 12 of the Purchasing Agreement
between Gateway and Rent-Way to which this document is
an exhibit and the availability of the products,
Gateway shall use commercially reasonable efforts to
ship the products in accordance with the Order.
4. PRICING
4.1 Gateway agrees to furnish the products to Rent-Way at the prices
that are set forth, and in the standard configurations listed, in Gateway's
current standard Commercial Price List at the time of Order entry. The
Commercial Price List is available upon request from Gateway or on its website
at xxxxxxxxxx.xxx. Commercial Price List pricing does not include applicable
discounts, taxes or charges for packing, hauling, storage and shipping or
regional uplifts.
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4.2 Gateway is responsible for collecting all state taxes unless a
valid exemption certificate is provided. If Gateway is required by law to pay,
collect or withhold state or local sales and use tax, excise, value-added or
similar taxes from Rent-Way, Gateway shall separately state the amounts, if any,
in Gateway's invoice. Rent-Way shall pay the additional amounts to Gateway
unless a valid exemption certificate has previously been filed with Gateway.
4.3 Prices set forth in Gateway's Commercial Price List are subject to
change without prior notice. Applicable pricing shall be the current pricing in
effect at the time of Order entry, provided the Order has been accepted by
Gateway in accordance with Section 1.2.
5. WARRANTY AND SERVICES
5.1 The Gateway Computer Technology products are covered under the
warranty in effect at the time the products are delivered. Warranty support and
services shall be provided in accordance with the current warranty, which will
be included with the delivered products. The following warranty, including its
terms and conditions, is currently in effect as of the date of this Agreement
and is incorporated herein by this reference attached hereto as Exhibit A:
Gateway (TM) Business Products Limited Warranty and Terms &
Conditions Agreement (4/00).document #8506156
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Exhibit C
Purchasing Requirements, Warrant and Support, Pricing and Configurations for
Customer PCs
1. PURCHASING, ORDERING AND SHIPPING
1.1 This Exhibit with its terms and conditions applies to all purchase
orders and other documents of purchase ("Orders") which Rent-Way may place with
Gateway for the Customer PCs during the term of this Agreement.
1.2 Rent-Way may order from Gateway by telephone, facsimile, mail or
electronic mail. Acceptance by Gateway of the Order shall occur (a) when the
Order is entered into Gateway's system, (b) when an Order number is provided to
Rent-Way by facsimile or electronic mail, if requested by Rent-Way, or (c) when
assembly of the products commences, whichever occurs first.
1.3 Delivery shall be FOB Destination as identified in the Order. Title
and risk of loss shall pass from Gateway to Rent-Way at the delivery point.
1.4 As an accommodation to Rent-Way and without Rent-Way's prior
approval, Gateway may make product substitutions when the products ordered are
unavailable, provided that the substituted products are of equal or greater
functionality than those contained on the original Order and that Gateway
notifies Rent-Way of such substitution at the time of delivery. Rent-Way may
reject any such product substitutions within ten (10) days of delivery.
1.5 Gateway reserves the right to discontinue any products at any time
without notice to Rent-Way.
1.6 Rent-Way shall pay all shipping costs for returned products, except
in the case of shipments made in error by Gateway and rejections by Rent-Way of
damaged or non-conforming products or of substitute products shipped by Gateway
in accordance with paragraph 1.4.
2. RESPONSIBILITIES OF RENT-WAY
2.1 Orders submitted by Rent-Way pursuant to this Agreement shall
include the following information:
a) A description of the products ordered, including any
Gateway numerical/alphabetical part number or
configuration identification, quantity, unit price and
total price.
b) The location where the products are to be shipped or
the services to be performed and the "Xxxx To" address.
c) Rent-Way's Order number.
d) Rent-Way's Unique ID Code for Customer PCs which is
00DVC10264.
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2.2 Rent-Way may initiate changes or additions to previously accepted
Orders by submitting a modification of the Order to Gateway with appropriate
reference to the original Order. Upon Gateway's written acceptance of the
modification or addition, Gateway shall process the Order in accordance with the
pricing terms and conditions of this Agreement.
2.3 Rent-Way shall notify Gateway within ten (10) days of delivery of
the products of any excess quantities delivered to Rent-Way.
2.4 Other than as set out in this Agreement for Customer PCs, Rent-Way
shall not, without prior written authorization from Gateway, re-sell, market,
rent, lease, install or engage in the business of providing services for Gateway
products in any way or through any channel, whether direct or indirect,
wholesale or retail, including but not limited to any type of retail
environment, including but not limited to any type of store, shop, physical
premises or by direct mail advertising, newspaper advertising, electronic
commerce or solicitation over the Internet, or any other manner.
3. RESPONSIBILITIES OF GATEWAY
3.1 With respect to ordering, shipping and billing, Gateway shall
undertake the following responsibilities:
a) Ship the products listed on the Order complete unless
otherwise instructed by Rent-Way in writing.
b) Ship the products to the destination specified in the
Order in accordance with Rent-Way's specific routing
instructions.
c) Enclose one itemized packing list with each shipment.
d) Xxxx the Order number on subordinate documents and
shipping papers and on all packages.
e) Submit invoices showing the Order number and send to
the directed location for payment.
h) Submit a separate invoice for each shipment or Order.
i) Subject to paragraph 12 and the availability of the
Customer PCs, Gateway shall use commercially reasonable
efforts to ship the Customer PCs in accordance with the
Order.
4. PRICING
4.1 Gateway agrees to furnish the Customer PCs at the following
Configurations and Pricing as identified below:
Per System(see 4.2) ISP(see 4.5) Total
Astro(l-9) $859.00 each $108.00 $ 967.00
Astro(l0+) $854.00 each $108.00 $ 962.00
GP6-500(l-9) $950.00 each $108.00 $1058.00
GP6-500 (10+) $945.00 each $108.00 $1053.00
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Additional pricing and configurations will be agreed upon between the
Parties and incorporated into the contract via amendment as they are
identified.
4.2 The pricing does not include taxes or charges for packing, hauling,
storage and shipping or regional uplifts
4.3 Gateway is responsible for collecting all state taxes unless a
valid exemption certificate is provided. If Gateway is required by law to pay,
collect or withhold state or local sales and use tax, excise, value-added or
similar taxes from Rent-Way, Gateway shall separately state the amounts, if any,
in Gateway's invoice. Rent-Way shall pay the additional amounts to Gateway
unless a valid exemption certificate has previously been filed with Gateway.
4.4 Prices set forth for Customer PCs are subject to change upon
reasonable prior notice to and discussions with Rent-Way. Gateway shall
institute price changes only following discussions with Rent-Way concerning the
need for and scope of such changes. Applicable pricing shall be the current
pricing in effect at the time of Order entry, provided the Order has been
accepted by Gateway in accordance with Section 1.2. The Parties acknowledge that
their relationship will only be successful if any products, including Customer
PCs and, ISP service, remain at all times commercially reasonably priced and
accompanied by commercially reasonable warranties and support.
4.5 The Prices set forth for Customer PCs will include 12 months of
prepaid ISP service.
5. WARRANTY, SUPPORT, AND CUSTOMER SUPPORT OBLIGATIONS
The Customer PC and all other products sold under the Agreement for
sale or Lease to Rent-Way's customers are covered under the warranty in effect
at the time the products are delivered. Warranty support and services shall be
provided in accordance with the current warranty, which will be included with
the delivered products.
The following warranty, including its terms and conditions, is
currently in effect as of the date of this Agreement and is incorporated herein
by this reference attached hereto as Exhibit A:
Gateway(TM) Business Products Limited Warranty and Terms & Conditions Agreement
(4/00) (documents #8506156 and #8505198).
