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EXHIBIT 10.14
AGREEMENT WITH EN POINTE TECHNOLOGIES, INC.
DATED FEBRUARY 10, 1998
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Marketing Agreement
THIS MARKETING AGREEMENT (this "Agreement") is made as of this 10th day of
February, 1998 by and between En Pointe Technologies Sales, Inc., a Delaware
corporation ("En Pointe"), with its principal offices at 000 X. Xxxxxxxxx Blvd.,
00xx xxxxx, Xx Xxxxxxx, XX 00000, and Xxxxxxxx.xxx, a California corporation
("Shopping"), with its principal offices at 0000 Xxxx Xxxxx Xxx., Xxxxxx Xxxxx,
Xxxxxx xxx Xxx, XX 00000
BACKGROUND
Shopping desires En Pointe assist in marketing the full range of Shopping's
products on Shopping's behalf throughout the United States and En Pointe agrees
to assist in said marketing.
IN CONSIDERATION OF THE FOREGOING and of the mutual covenants, conditions, and
agreements hereinafter set forth, the parties intending to be legally bound do
hereby agree as follows:
1.DEFINITIONS. The following words shall have the following meanings when used
in the Agreement:
1.1 "Products" shall mean any products or services offered for sale by
Shopping to the public through Shopping's website, or otherwise.
1.2 "Territory" shall mean the United States and its territories and
possessions.
2.APPOINTMENT AND ACCEPTANCE OF EXCLUSIVITY. Subject to the terms herein,
Shopping hereby grants En Pointe a non-exclusive right and license to market and
license the Products. En Pointe hereby accepts its non-exclusive appointment to
market and license the Products in the Territory.
3.GRANT OF LICENSE TO En Pointe. Subject to the terms herein, Shopping hereby
grants En Pointe the non-exclusive license to utilize Shopping's trademarks and
services marks associated with the Products as reasonable necessary in
connection with any sales of as reasonable necessary to satisfy its obligations
hereunder. En Pointe may use Shopping's trademarks and service marks in the
presentations and sales of the Products.
4.TERM. This Agreement shall become effective on February 10, 1998 and continue
for two (2) years therefrom. This Agreement shall automatically renew for
continuous one (1) year periods unless one party gives the other party three (3)
months' prior written notice of its intent to terminate this Agreement.
5.FURTHER ASSISTANCE. Subject to the terms herein, Shopping agrees to furnish En
Pointe all such information, assistance, and cooperation as may be reasonably
required in negotiating agreements with customers.
0.XXXXXXXXX. En Pointe shall use good-faith efforts to market those of the
Products appropriate to it. In the event Shopping desires to distribute or
otherwise utilize any marketing programs or materials, including any reference
to En Pointe after the termination of this Agreement. Shopping must remove any
such reference prior to such utilization.
7.COSTS AND OBLIGATIONS OF THE PARTIES. En Pointe and Shopping will each bear
their own
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costs incurred in advertising and marketing the Products. Notwithstanding the
previous sentence, Shopping will provide approximately two (2) to three (3) days
of product training at all En Pointe locations to support the launch of a sales
and marketing campaign and approximately two (2) to three (3) days at Shopping's
office for a marketing-oriented technical system walk-through without cost to En
Pointe.
9.INTELLECTUAL PROPERTY AND PATENT INDEMNIFICATION. The following terms apply to
any infringement or claim of infringement of any patent, trademark, copyright,
trade secret, or other proprietary interest based on the licensing, use, or sale
of any Products furnished to customers under this Agreement. Shopping shall
indemnify En Pointe for any loss, damage, expense, or liability, including costs
and reasonable attorney's fees, that may result by reason of any such
infringement or claim of infringement.
10.INDEMNITY. Shopping agrees to indemnify and save harmless En Pointe, its
parent subsidiaries and affiliates, and its and their directors, officers and
employees, from any liabilities, lawsuits, penalties, claims, or demands
(including the costs, expenses, and reasonable attorney's fees on account
thereof) that may be made (1) by any third party for injuries, including death,
to persons or damage to property, including theft, resulting from the
indemnifying party's negligent or willful acts omissions; or (2) by any employee
or former employee of the indemnifying party or any of its subcontractors for
which the indemnifying party or subcontractors' liability to such employee or
former employee would otherwise be subject to payments under state worker's
compensation or similar laws. Shopping agrees to defend En Pointe, at En
Pointe's request, against any such liability, claim, or demand. The foregoing
indemnity shall be in addition to any other indemnity obligations of Shopping
set forth in this Agreement.
REPRESENTATIONS AND WARRANTIES OF SHOPPING.
10.1 In order to induce En Pointe to enter into this Agreement, Shopping
represents and warrants to En Pointe (I) that it owns all rights, title, and
interest in and to the Products; (ii) that the Products are free from defects in
workmanship and materials; (iii) Shopping further warrants that any services
provided by Shopping under this Agreement shall be performed in a fully
workmanlike manner to Customer's satisfaction and in accordance with the
prevailing professional standards of the applicable industry; (iv) En Pointe's
use or sale of the Products will not violate the intellectual property rights of
any third party.
11.LIMITATION OF LIABILITY. Except as expressly provided in this Agreement, En
Pointe, its parent, subsidiaries and affiliates, and its and their directors,
officers and employees, shall not be liable for any indirect, special,
incidental or consequential damages (including, but not limited to, loss or
profits), whether based or tort, warranty, contracts, or otherwise, arising out
of or in any way related to this Agreement or the providing of the Products,
even if such party has been advised of the possibility of such damages.
Notwithstanding any provision contained in this Agreement, Shopping agrees that
En Pointe's liability hereunder for damages shall be Shopping's exclusive remedy
and that such liability, regardless of the form of action, shall not exceed
$10,000,000. No action, regardless of form, arising under this Agreement, may be
brought by either party more than two (2) years after the cause of action has
arisen, except that an action for nonpayment may be brought within one (1) year
after the date of the most recent payment. EN POINTE DOES NOT MAKE ANY EXPRESS
OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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00.XX FURTHER RELATIONSHIPS. This Agreement shall not constitute, give effect
to, or otherwise imply a joint venture, pooling arrangement, partnership, or
formal or informal business organization of any kind.
13.TERMINATION. In the event of the termination of this Agreement, En Pointe
shall be entitled to complete all sales already under contract and receive all
revenue generated from such sales less the purchase price to ve paid for such to
Shopping, within two (2) years of the termination of this Agreement. In
addition, En Pointe shall be entitled to receive compensation as provided in
this Agreement for all sales completed within six (6) months of the termination
of this Agreement for all customers with which En Pointe had a letter of intent,
responded to a Request for Proposal (RFP), or made a presentation to
representatives of the eventual Pointe.
14.TRANSFER OF OBLIGATIONS. Shopping hereby approves the transfer and
pass-through of its obligations under Sections 8,9, and 10 to En Pointe's
customers and agrees to provide such indemnifications and warranty to En
Pointe's customers without charge to En Pointe.
15.SALES ACTIVITY REPORTING. Shopping shall provide to En Pointe, no later than
the twentieth (20th) day following the end of each calendar month, a report of
En Pointe's activity during the prior calendar month. Such report shall include
information on receipts, xxxxxxxx, bookings, and sales contracts. En Pointe
shall have the right to audit all Shopping records pertaining to the Products
during normal business hours provided three (3) days' prior written notice is
provided to Shopping. Shopping shall bear the expense of such audit unless the
results of such reveal an error of less than 5 percent of the revenues to be
received by En Pointe, in which event En Pointe shall bear the expense of such
audit.
16.PAYMENT During the term, En Pointe, will be entitled to payment or retention
of I) the first two percent (2%) of sales price to customer, exclusive of tax;
plus, ii) thirty percent (30%) of the Gross Profit Margin on all Products. Gross
Profit Margin means sales price to customer, exclusive of tax, minus invoice
cost, exclusive of tax. Shopping and En Pointe will split the remaining Gross
Profit Margin on all Products, fifty/fifty (50/50). En Pointe will remit any
payments due Shopping, once per month, based on En Pointe's actual receipt of
good payment funds form customers within the prior month.
17.CUSTOMER CONTRACT, SHIPPING AND PACKING LABELS. En Pointe shall contract
directly with customers for all sales of Products. All shipping and packing
labels on all products shipped to customers hereunder shall bear En Pointe's
name as the shipping party.
18.BACKGROUND, ENUMERATIONS, AND HEARINGS. The "Background," enumerations, and
hearings contained in these terms and conditions are for convenience of
reference only and are not intended to have any substantive significance in
interpreting this Agreement.
19.SURVIVAL. The license granted by Shopping to En Pointe and its customers
shall survive the termination of this Agreement except as amended by the joint
agreement of both parties.
20.PUBLICITY. No release shall be made to the news media or to the general
public relating to this Agreement without the prior written approval of an
authorized executive party for the other party.
21.ASSIGNMENT. Neither party shall assign or transfer in any manner its
obligations, rights, or interest or any part thereof under this Agreement
whether by written agreement or operations of law without the
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prior written consent of an authorized executive officer of the nonassigning
party, which consent may not be unreasonably withheld. Any assignment in
contravention of this Agreement is null and void. The foregoing shall not apply
to the assignment by En Pointe to any parent, successor or affiliate.
22.GOVERNING LAW; VENUE. The agreements contained herein shall be governed by,
and construed in accordance with, the laws of the State of California without
giving effect to the principles of conflicts of law. As to any disputes between
En Pointe and Shopping, the parties hereto irrevocable agree that, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, other than matters pertaining to injunctive relief including, without
limitation, temporary restraining orders, preliminary injunctions and permanent
injunctions, shall be determined by binding arbitration before the Judicial
Arbitration and Mediation Service in Los Angeles County, California. The parties
hereto waive any right to trial by jury with regard to any dispute between them
hereunder. Judgement upon any arbitration award rendered shall be and may be
entered in any court having jurisdiction thereof, provided that no awards for
punitive damages may be rendered or entered as judgements. It is hereby agreed
that the parties shall be permitted to conduct such discovery as the arbitrator
may permit. The parties submit to the exclusive jurisdiction of the United
States District Court for the Central District of California, Western Division,
over any action, suit or proceeding or matter pertaining to injunctive relief,
including, without limitation, temporary restraining orders, preliminary
injunctions and permanent injunctions, arising out of or relating to this
Agreement or the transactions contemplated by this Agreement, except to the
extent that said Court does not have subject-matter jurisdiction, in which case
the parties irrevocable submit to the exclusive jurisdiction of the Superior
Court of the County of Los Angeles, State of California, over any such action,
suite, or proceeding, pertaining to injunctive relief, including, without
limitation, temporary restraining orders, preliminary injunctions and permanent
injunctions.
23.ENTIRE AGREEMENT. This document contains the entire agreement between the
parties and supersedes any previous understandings , commitments, or agreements,
oral or written, with respect to agreement between the parties. No alteration of
or amendment to this Agreement shall be effective unless in writing and signed
by an authorized executive officer of each party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
En Pointe Technologies Sales, Inc. Xxxxxxxx.xxx
By: By: \s\ Xxxxxx X. XxXxxxx
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