1
Exhibit 10.13
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
DISTRIBUTION AGREEMENT
This Agreement (the "Agreement") is made on the 30th day of April 1998.
BETWEEN
INGRAM EUROPEAN COORDINATION CENTER N.V./S.A. whose registered office is
situated at Xxxxxxxxxxxxxxxx 00, X-0000 Xxxxxxxx, Xxxxxxx, on behalf of its
Xxxxxx Micro affiliate companies in Europe (including but not limited to those
companies listed on the attached schedule 1) "Ingram") and
DRAGON SYSTEMS INC of 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, XXX ("Vendor").
IT IS AGREED:
The terms and conditions of the distribution agreement between Xxxxxx Micro Inc.
and Vendor dated 15th December 1997 ("Distribution Agreement"), attached hereto
as Exhibit A and made a part hereof by reference, are hereby agreed to and
accepted by Ingram and Vendor (as amended by the terms of this document) to
govern any distribution relationship in Europe between Ingram and Vendor and the
terms of sale and purchase of Products between Ingram and Vendor.
Amendments to the Distribution Agreement
Clause 4: deliveries will be FOB Xxxxxx'x designated European warehouse. This
shall be one location designated by Ingram. All other terms of clause 4 of the
Distribution Agreement remain unchanged.
Additional Clauses
The following provisions will be deemed to be added.
This Agreement shall be construed and enforced in accordance with the laws of
the State of California, except that body of law concerning conflicts of law.
The United Nations Convention on Contracts for the International Sale of Goods
shall not apply to this agreement.
[STRIKE-THROUGH TEXT] \s\JB
2
Vendor warrants, in addition to any other warranties, that the Products will
comply with all health and safety regulations applying at the date of supply in
the place where the Products are to be used by the end-user.
The provisions of the attached Schedule 2 shall apply in addition to the other
terms and conditions of this Agreement in respect of all Products supplied by
Vendor for the purposes of retail sale and/or which are supplied by IM for the
purposes of retail sale to its customers.
In the event of the Distribution Agreement containing provisions which are in
breach of European Union Law, it is expressly agreed that such provisions will
be void and non applicable.
All product must be packaged and include sufficient components (or advice
thereon) as to make them suitable for retail sale.
INGRAM EUROPEAN COORDINATION
CENTER N.V./S.A. DRAGON SYSTEMS INC.
By: \s\ Karel Everaet By: \s\ Xxxxx X. Xxxxx
-------------------------------- -----------------------------
Name: Karel EVERAET Name: Xxxxx X. Xxxxx
-------------------------------- -----------------------------
Title: MANAGING DIRECTOR Title: President
-------------------------------- -----------------------------
Date: N30538 Date: 30 April 1998
-------------------------------- -----------------------------
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SCHEDULE 1
AUSTRIA:
Xxxxxx Micro Computer Ges.m.b.H
Concorde Business Park CS
2320 Schwechat
Tel: x00 0000 00 00 00
Fax: x00 0000 00 00 00
Reg. No. 131945m
VAT No. ATU 38585401
BELGIUM:
Xxxxxx Micro NV
Xxxxxxxxxxxxxxxx 00
0000 Xxxx-Xxxxxxx-Xxxxxx
Tel: x00 00 00 00 00
Fax: x00 00 00 00 00
Reg. No. HRB 456.077.106
VAT No. BE 425.077.655
DENMARK:
Xxxxxx Micro A/S
Xxxxxxxxxxx 00
0000 Xxxxxxxx
Tel: x00 00 00 00 00
Fax: x00 00 00 00 00
Reg. No. 110598
VAT No. DK 70562618
FINLAND:
Xxxxxx Micro OY
Sinimlentle 10B
02631 Espoo
Tel: x00 00 00 00 00
Fax: x00 00 00 00 000
Reg. No. 565-016
VAT No. 0690814/0
FRANCE:
Xxxxxx Micro S.A.R.L.
Carrefour de l'Europe
59812 Lesquin Cedex (Lille)
Tel: x00 0 00 00 00 00
Fax: x00 0 00 00 00 00
Reg. No. R.C. LILLE 928127
VAT No. FR 50 344658117
GERMANY:
Xxxxxx Micro Xxxxxxxxxxx XxxX
Xxxx-Xxxxxx-Xxxxxxx 0X
00000 Xxxx (Xxxxxxx)
Tel: x00 00 00 00-0
Fax: x00 00 00 00 0000
Reg. No. HRB Munchen 115953
VAT No. DE 812261350
ITALY:
Xxxxxx Micro SpA
Xxx Xxxxx Xxxxxx 0/0
00000 Xxxxxxxxx
Borromeo (Milano)
Tel: x00 000 000
Fax: x00 000-00000
Reg. No. 1367714
VAT No. IT 10297220153
THE NETHERLANDS:
Xxxxxx Micro BV
Xxxxxxxxxxxxxxxx 00
0000 XX Xxxxxxxx
Tel: x00 00 000 0000
Fax: x00 00 000 0000
Reg. Xx. 00000
XXX Xx. XX 8047.55.486.BO1
NORWAY:
Xxxxxx Micro AS
Xxxxxxxxxxxxx 00
0000 Xxxx
Tel: x00 00 00 0000
Fax: x00 00 00 0000
Reg. No. 963054432
VAT No. NO 963054432
SPAIN:
Xxxxxx Micro SA
C/Sant Xxxxxx 52-68
Xxx. Xxx. Xxxxxx
00000 Xxxxxxxx xx Xxxxxxxxx (Xxxxxxxxx)
Tel: x00 0 000 00 00
Fax: x00 0 000 00 00
Reg. No. A-75/076395
VAT No. ESA78076395
SWEDEN:
Xxxxxx Micro AB
Xxxxxxxxxxxxxx 0
00000 Xxxxx
Tel: x00 0 000 00 00
Fax: x00 0 000 00 00
Reg. No. 556254/8452
VAT No. SE 556254845201
SWITZERLAND:
Xxxxxx Micro AG
Xxxxxxxxxxxxxx 00
0000 Xxxxxxxxxxxx
Tel: x00 00 0000 000
Fax: x00 00 0000 000
Reg. Xx. XX 000.0.000.0000
XXX xx. XX 000000
XXXXXX XXXXXXX:
Xxxxxx Micro (UK) Ltd
Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxx XX0 0XX
Xxxxxxxxxxxxxxx, XX
Tel: x00 0000 000 000
Fax: x00 0000 000 000
Reg. No. 1609968
VAT No. GB 440.3552.80
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Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
SCHEDULE 2
RETAIL PRODUCTS
1. Defective Products
Vendor agrees to accept back for credit any Product returned to Ingram as
defective by Xxxxxx'x retail customers which has been returned to the retail
customer within [**] of the date of sale to the end user.
2. Pass through MDF
Vendor agrees to make a Marketing Development Fund available for Ingram and
Xxxxxx'x retail customers
3. Promotional opportunities
Vendor will from time to time subscribe to Xxxxxx'x promotion opportunities.
4. Merchandising services
Vendor will from time to time subscribe to Xxxxxx'x store Merchandising
providing in-store focus.
5. Product Requirements
5.1 PRODUCT CHANGES; All version changes for any product must be
notified in writing to Ingram as soon as reasonably practical
with details of Xxxxxx'x cost price and any RRP (or similar)
and in any event, at least 30 days before release date.
5.2 NEW PRODUCTS; Vendor must inform Ingram as soon as reasonably
possible of all new product releases and supply to Ingram
sufficient samples free of charge, as Ingram need to supply to
its retail customers for advertising purposes or evaluation.
Vendor will also supply bar code information, product
dimensions (both outer case and contents) and key selling
points.
5.3 BAR CODES All product must bear EAN-13/UPC bar code number and
code readable on an external facing of the packaging of each
product, any change of code must be notified in writing to
Ingram 14 days prior to the date of any change.
5.4. SHRINK WRAPPING If required by a particular retail customer of
Xxxxxx'x products must be shrink-wrapped.
5.5 SECURITY TAGGING All Products must be security tagged to a
standard agreed between Ingram, Vendor and its retail
customers.
5.6 CERTIFICATE RATINGS All age restricted Products must display
the appropriate symbol on the Product and advice given to
Xxxxxx'x Buyer in this respect
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6. Dummy Boxes
Reasonable quantities of dummy boxes will be supplied to Ingram from time to
time as Ingram requests.
7. Specifications
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EXHIBIT A
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement"), is entered into this 15th
day of December, 1997, by and between XXXXXX MICRO INC. ("Ingram"), a Delaware
corporation, having its principal place of business at 0000 X. Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000, and DRAGON SYSTEMS INC. ("Vendor"), a Delaware
corporation, having its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000. The parties desire to and hereby do enter into a
distributor/supplier relationship, the governing terms and mutual promises of
which are set out in this Agreement. This Agreement, upon the full execution
hereof, shall supersede in its entirety the mutual Start-up Agreement dated July
14, 1997.
1. DISTRIBUTION RIGHTS
1.1 Territory Vendor grants to Ingram, including its affiliates for
resale, and Ingram accepts, the non-exclusive right to distribute in North
America all computer products produced and/or offered by Vendor ("Product")
during the term of this Agreement. Ingram shall have the right to purchase, sell
and ship to any reseller within the territory or to Xxxxxx'x affiliate, or at
Vendor's option Xxxxxx'x affiliate may purchase direct from Vendor.
1.2 Product Vendor agrees to make available and to sell to Ingram such
Product as Ingram shall order from Vendor at the prices and subject to the terms
set forth in this Agreement. Ingram shall not be required to purchase any
minimum amount or quantity of the Product.
2. TERM AND TERMINATION
2.1 Term The initial term of this Agreement is one (1) year. Thereafter
the Agreement will automatically renew for successive one (1) year terms, unless
it is earlier terminated.
2.2 Termination
(a) Either party may terminate this Agreement, with or without cause,
by giving thirty (30) days written notice to the other party.
(b) Either party may immediately terminate this Agreement with written
notice if the other party:
(i) materially breaches any term of this Agreement and such breach
continues for thirty (30) business days after written notification thereof; or
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(ii) ceases to conduct business in the normal course, becomes
insolvent, makes a general assignment for the benefit of creditors, suffers or
permits the appointment of a receiver for its business or assets, or avails
itself of or becomes subject to any proceeding under any Bankruptcy Act or any
other federal or state statute relating to insolvency or the protection of
rights of creditors; or
(iii) attempts to assign or otherwise transfer its rights hereunder
unless both have agreed in writing to such assignment or transfer.
3. INGRAM OBLIGATIONS
3.1 Product Availability Ingram will list Product in its catalog(s) as
appropriate and endeavor to make such Product available to customers.
3.2 Advertising Ingram will advertise and/or promote Product in a
commercially reasonable manner and will transmit as reasonably necessary Product
information and promotional materials to its customers.
3.3 Support Ingram will make its facilities reasonably available for
Vendor and will assist in Product training and support. Ingram will provide
reasonable, general Product technical assistance to its customers, and will
direct all other technical issues directly to Vendor.
3.4 Administration
(a) Upon request, Ingram will furnish Vendor with a valid tax
exemption certificate.
(b) Ingram will provide Vendor standard sales-out and inventory
reports via its electronic Bulletin Board System.
(c) Ingram may handle its customers' Product returns by batching them
for return to Vendor at regular intervals.
4. VENDOR OBLIGATIONS
4.1 Shipping/Export
(a) Vendor shall ship Product pursuant to Ingram purchase order(s)
("P.O."). Product shall be shipped F.O.B. Xxxxxx'x designated warehouse with
risk of loss or damage to pass to Ingram upon delivery to the warehouse
specified in Xxxxxx'x P.O.
(b) Ingram requires concurrent with the execution of this Agreement
Export Administration Regulations product classification and supporting
documentation: Certificate of Origin (General Use and/or NAFTA), Export
Commodity Control
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Number's; (ECCN's), General License and/or Individual Validated License
information and Schedule "B"/Harmonized Numbers. This applies when distribution
rights granted under Section 1.1 are outside the United States for the initial
Product/s and when additions or changes to these Products occurs.
4.2 Invoicing For each Product shipment to Ingram, Vendor shall issue
to Ingram an invoice showing Xxxxxx'x order number, the Product part number,
description, price and any discount. At least monthly, Vendor shall provide
Ingram with a current statement of account, listing all invoices outstanding and
any payments made and credits given since the date of the previous statement.
4.3 Product Availability Vendor agrees to maintain sufficient Product
inventory to fill Xxxxxx'x orders. If a shortage of any Product exists, Vendor
agrees to allocate its available inventory of such Product to Ingram in
proportion to Xxxxxx'x percentage of all of Vendor's customer orders for such
Product during the previous sixty (60) days.
4.4 Product Marketing Vendor will clearly xxxx each unit of Product
with the Product name and computer compatibility. Such packaging will also bear
a machine-readable bar code identifier scannable in standard Uniform Product
Code (UPC) format. The bar code must identify the Product as specified by the
Uniform Code Council (UCC). If the Vendor or Ingram customers' require serial
number tracking the serial number must be clearly marked and bar coded on the
outside of the individual selling unit. The bar code shall fully comply with all
conditions regarding standard product labeling set forth in Exhibit B in the
then-current Ingram Guide to Bar Code: The Product Label. Vendor may be assessed
a reasonable per unit charge for all Product not in conformance herewith.
4.5 TechNotes Vendor will within thirty (30) days of execution of this
Agreement sign the CIS/ Manufacture Product Information Library - TechNotes and
Content Distribution Agreements as shown in Exhibit C and provide the required
product information in the designated template format.
4.6 Support At no charge to Ingram, Vendor shall support Product and
any reasonable Ingram efforts to sell Product. Vendor shall also provide to
Ingram, its employees, and its customers reasonable amounts of sales literature,
advertising materials, and training and support in Product sales, during
Vendor's regular business hours.
4.7 New Product Vendor shall endeavor to notify Ingram at least thirty
(30) days before the date any new Product is introduced. Vendor shall make such
Product available for distribution by Ingram no later than the date it is first
offered for sale in the marketplace.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.8 Insurance Vendor shall carry insurance coverage for product
liability/completed operations with minimum limits of [**]. Within ten (10) days
of full execution of this Agreement, Vendor shall provide Ingram with a
Certificate of Insurance. This Certificate of Insurance must include: (i) a
broad form endorsement naming Ingram as an additional insured, and (ii) a
mandatory thirty (30) day notice to Ingram of insurance cancellation.
4.9 Warranties/Certification
(a) General Warranty Vendor represents and warrants that (i) it has
good transferable title to the Products, (ii) the Product will perform in
conformity with specifications and documentation supplied by Vendor, (iii) to
the best of Vendor's knowledge, the Product or its use does not infringe any
patents, copyrights, trademarks, trade secrets, or any other intellectual
property rights, (iv) to the best of Vendor's knowledge, there are no suits or
proceedings pending or threatened which allege any infringement of such
proprietary rights other than described in Exhibit G, and (v) the Product sales
to Ingram do not in any way constitute violations of any law, ordinance, rule or
regulation in the distribution territory.
(b) Warranty Vendor hereby represents and warrants that any Product
offered for distribution does not contain any obscene, defamatory or libelous
matter or violate any right of publicity or privacy.
(c) End-User Warranty Vendor shall provide a warranty statement with
Product for end user benefit. This warranty shall commence upon Product delivery
to end-user. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE WARRANTIES OF MERCHANTABIITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
MADE BY VENDOR WITH RESPECT TO THE PRODUCT. INGRAM SHALL NOT EXTEND ANY
ADDITIONAL WARRANTIES TO ANY RESELLERS OR END-USERS OF THE PRODUCT. IN NO EVENT
WILL XXXXXX BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF INGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. VENDOR SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES RESULTING FROM
LOSS OF DATA, PROFITS OR USE OF EQUIPMENT, OR FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR
PERFORMANCE OF THE LICENSED PROGRAM.
IT IS ALSO UNDERSTOOD BY BOTH PARTIES TO THIS AGREEMENT THAT
SPEECH RECOGNITION IS INHERENTLY A STATISTICAL PROCESS; THAT SPEECH
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
RECOGNITION ERRORS ARE INHERENT IN THE PROCESS OF SPEECH RECOGNITION; THAT
SPEECH RECOGNITION APPLICATIONS AND USAGE MUST BE DESIGNED TO ALLOW FOR SUCH
ERRORS IN THE SPEECH RECOGNITION PROCESS.
(d) Millennium Compliance Warranty Vendor warrants and represents that
the Product will properly (a) record, store, process, calculate or present
calendar dates falling on and after (and if applicable, spans of time including)
January 1, 2000 as a result of the occurrence, or use of data consisting of,
such dates and (b) calculate any information dependent on or relating to dates
on or after January 1, 2000 in the same manner, and with the same functionality,
data integrity and performance, as such Product records, stores, processes,
calculates and presents calendar dates on or before December 31, 1999, or
information dependent on or relating to such dates.
(e) EU Warranty Vendor further warrants and represents for Products
distributed to the European Union ("EU") that the Products will be accepted
under all EU directives, regulations and the EU country's legislation.
(f) Made in America Certification Vendor by the execution of this
Agreement certifies that it will not label any of its products as being "Made in
America," "Made in U.S.A.," or with similar wording, unless all components or
elements of such Product is in fact made in the United States of America. Vendor
further agrees to defend, indemnify and hold harmless from and against any and
all claims, demands, liabilities, penalties, damages, judgments or expenses
(including attorney's fees and court costs) arising out of or resulting in any
way from Product that does not conform to the Certification.
5. PRICING
5.1 Ingram Pricing The suggested retail price and any Ingram discount
for Product is set out in Exhibit D. Vendor may modify Exhibit D with a minimum
of thirty (30) days advance written notice to Ingram. All Ingram orders for
Product will be billed at the price in effect when the order is placed. Ingram
shall have sole discretion as to selling price of Product to its customers.
5.2 Vendor Pricing Vendor agrees that the [**]. If Vendor [**] also be
entitled to participate in and receive notice of the same [**].
5.3 International Pricing If Vendor [**] into that territory.
5.4 Price Adjustments If Vendor reduces any Product price, or offers
increased discounts to any customers, Vendor will promptly credit Ingram for the
difference between the original Product price and the reduced Product price for
Xxxxxx'x and its customers' Product inventory, including: (i) any Customer
Product in-transit from/to
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Ingram, (ii) any unshipped orders, and (iii) orders in-transit to Ingram on the
price reduction or increased discount offer date. In the event that Vendor shall
raise the list price of a Product, all orders for such Product placed prior to
the effective date of the price increase shall be invoiced at the lower price.
Vendor shall provide Ingram with thirty (30) days advance notice of any price
increases.
5.5 Payment Terms Payment terms shall be [**]. Payment shall be deemed
made on the payment postmark date. All checks will be sent via FedEx at Vendor's
expense.
5.6 Right to Withhold Notwithstanding any other provision in this
Agreement to the contrary, Ingram shall not be deemed in default if it withholds
any specific amount to Vendor because of a legitimate dispute between the
parties as to that specific amount pending the timely resolution of the disputed
amount.
5.7 Bulletin Board System (BBS) Ingram will provide the Detailed
Vendor Buying Report weekly by its electronic BBS. The standard reports will
include sales by zip code, state, product/quantity sold and the detailed Vendor
Buying Report. Ingram will provide reporting on a monthly basis on sell-through
including SKU, title, version, company, zip, number sold subject to a separate
Proprietary Information Non-Disclosure Agreement attached hereto as Exhibit H.
5.8 Rebate Vendor will provide a guaranteed [**], based on gross
sales, for reporting under Section 5.7. In addition, Vendor will offer Ingram
[**], based on gross sales, for achieving sell-through quotas. The sell through
quotas shall be mutually agreed between both parties. The rebate will be paid by
check within thirty (30) days after the quarter end. If no check is received
within that period Ingram shall deduct that amount from the Vendor's next
payment.
6. MARKETING
6.1 Trademarks Ingram may advertise and promote the Product and/or
Vendor, and may thereby use Vendor's trademarks, service marks and trade names
according to Vendor's guidelines. Neither party shall acquire any rights in the
trademarks, service marks or trade names of the other.
6.2 Advertising Vendor agrees to cooperate in Xxxxxx'x or Xxxxxx'x
customers' advertising and promotion of Product and hereby grants Ingram a
cooperative advertising allowance of [**] of Product invoice amount for such
advertising featuring Product and/or Vendor. Ingram shall submit advertising to
Vendor for review and approval prior to any initial release, and Vendor shall
not unreasonably withhold or delay such approval. Upon receipt of reasonable
evidence of such advertising expenditures, Vendor agrees to credit the amount
thereof against future Ingram purchases.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
6.3 Programs
(a) Ingram may offer marketing programs to Vendor including but not
limited to launch programs and reseller pass through opportunities. If Vendor
elects to participate, Vendor agrees to pay such funds as may be required for
this purpose.
(b) Vendor may be asked to prepay all marketing activities until a
mutually agreed upon sell through rate is achieved.
(c) All marketing pass through activities are subject to Ingram/buyer
pre-approval.
6.4 Support Product Vendor shall consign a reasonable amount of
demonstration Product to aid Ingram in its support and promotion of Product. All
such consigned Product will be returned to Vendor upon request.
7. RETURNS
7.1 Stock Balancing Notwithstanding anything herein to the contrary,
Ingram may return throughout the term any Products which are in their original
packaging to Vendor [**]. Ingram will pay all freight charges for returned
Products.
7.2 Post-Term/Termination For [**] of this Agreement, Ingram may
return to Vendor any Product [**]. Any credit or refund due Ingram for returned
Product shall be equal to the Product purchase price plus all freight charges
incurred by Ingram in returning the Product.
7.3 Product Discontinuation Vendor shall give Ingram thirty (30) days'
advance written notice of Product discontinuation. Ingram may return all such
Product to Vendor for full credit of Product purchase price plus all freight
charges incurred by Ingram in returning the Product, [**].
7.4 Defective Product
(a) Ingram may return any Product to Vendor that Ingram or its
customer finds defective. Vendor shall immediately credit Ingram for the Product
purchase price, plus all freight charges incurred by Ingram in returning the
defective Product.
(b) If any Product is recalled by Vendor because of defects, revisions
or upgrades, Ingram will, at Vendor's request, provide reasonable assistance
with the recall. Vendor will pay Xxxxxx'x expenses in connection with such
recall.
8. INDEMNIFICATION
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8.1 Product Indemnity Vendor shall defend, indemnify, and hold harmless
Ingram from and against any claims, demands, liabilities, or expenses
(including attorney's fees and costs) for any injury or damage, including, but
not limited to, any personal or bodily injury or property damage, arising out of
or resulting in any way from any defect in Products. This duty to indemnify
Ingram shall be in addition to the warranty obligations of Vendor.
8.2 General Indemnity Each party shall indemnify, defend and hold the
other harmless from and against any and all claims, actions, damages, demands,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, resulting from any act or omission of the acting party or its
employees under this Agreement, that causes or results in property damage,
personal injury or death.
8.3 Intellectual Property Rights Indemnity Vendor shall defend, indemnify
and hold Ingram, its resellers and their customers, harmless from and against
all damages and costs incurred by any of them arising from the infringement of
any patent, copyright, trademark, trade secret or other proprietary right by
reason of the manufacture, sale, marketing, or use of Product.
8.4 Product Infringement Upon threat of claim of infringement, Vendor may,
at its expense and option (i) procure the right to continue using any part of
Product, (ii) replace the infringing Product with a non-infringing Product of
similar performance, or (iii) modify Product to make it non-infringing. If
Vendor does not so act within ninety (90) days after such claim, Ingram may
return Product to Vendor for a full credit against future purchases or for a
cash refund, at Xxxxxx'x option.
8.5 Multi-Media Indemnity Vendor shall defend, indemnify and hold Ingram,
its resellers and their customers, harmless from and against all damages and
costs incurred by any of them to the extent it is based upon a claim that the
Product either (i) violates a third party's right of publicity and/or right of
privacy, or (ii) contains any obscene, defamatory or libelous matter.
8.6 European Indemnity For Products distributed to a country of the EU,
the Vendor accepts full responsibility for, and will indemnify Ingram for, all
costs and damages arising from any non-compliance with any manufacturer-directed
EU decree, regulation or directive.
8.7 Millennium Compliance Indemnity Vendor agrees to indemnify and hold
Ingram and its shareholders, officers, directors, employees, agents, successors,
and assigns harmless from and against any and all claims, suits, actions,
liabilities, losses, costs, reasonable attorney's fees, expenses, judgments or
damages, whether ordinary, special or consequential, resulting from any third
party claim made or suit brought against Ingram or such persons, to the extent
such results from Vendor's breach of the warranty specified in Section 4.9(d).
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8.8 Limitation of Liability NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR LOST PROFITS OF BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES,
WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE), AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION IS IN NO WAY MEANT TO LIMIT VENDOR'S LIABILITY FOR
PERSONAL INJURY OR DEATH AS A RESULT OF A DEFECT IN ANY PRODUCT IN THOSE
JURISDICTIONS WHERE THE LAW DOES NOT ALLOW THIS LIMITATION.
9. COMPLIANCE WITH FEDERAL LAWS AND REGULATIONS
9.1 Executive Order 11246 Vendor agrees to include the Equal
Employment Opportunity Clause by reference in every contract, agreement and
purchase order entered into with subcontractors or suppliers as required by 41
CFR 60-1.4.
9.2 Employer Information Report EEO-1 Written Affirmative Action Program
Vendor agrees that if the value of any contract or purchase order is fifty
thousand dollars ($50,000) or more and the Vendor has fifty (50) or more
employees, Vendor will (i) file an EEO-1 report (Standard Form 100) and comply
with and file such other compliance reports as may be required under Executive
Order 11246, as amended, and Rules and Regulations adopted thereunder and (ii)
will develop a written affirmative action compliance program for each of its
establishments as required by Title 41 CFR 60-1.40.
9.3 Veterans Employment Clause Vendor agrees to abide by and comply with
the provisions of the Affirmative Action Clause, 41 CFR 60-250.4.
9.4 Employment of Handicapped Persons Vendor agrees that it will abide
by and comply with the provisions of the Affirmative Action Clause, 41 CFR
60-741.4.
9.5 Small Business Concerns and Small Business Concerns Owned and
Controlled by Socially and Economically Disadvantaged Individuals Where a
government contract is expected to exceed five hundred thousand dollars
($500,000), Vendor agrees to comply with all requirements of P.L. 95-507 and
regulations promulgated thereunder. Vendor shall comply with instructions
contained in Exhibit E.
9.6 Women-Owned Business Concerns Vendor shall comply with instructions
contained in Exhibit F. Where a government contract is expected to exceed five
hundred thousand dollars ($500,000), Vendor agrees to comply with all
requirements of Executive Order 12138 and all regulations promulgated
thereunder.
10. GOVERNMENT PROGRAM
10.1 Partnership America Vendor may, at its sole option, participate in
Xxxxxx'x government reseller program in which case the provisions of Exhibit F,
Partnership
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America, shall apply. A draft copy is provided solely for your information and
review.
11. GENERAL PROVISIONS
11.1 Notices Any notice which either party may desire to give the other
party must be in writing and may be given by (i) personal delivery to an officer
of the party, (ii) by mailing the same by registered or certified mail, return
receipt requested, to the party to whom the party is directed at the address of
such party as set forth at the beginning of this Agreement, or such other
address as the parties may hereinafter designate, and (iii) by facsimile or
telex communication subsequently to be confirmed in writing pursuant to item
(ii) herein.
11.2 Governing Law This Agreement shall be construed and enforced in
accordance with the laws of the State of California, except that body of law
concerning conflicts of law. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
11.3 Cooperation Each party agrees to execute and deliver such further
documents and to cooperate as may be necessary to implement and give effect to
the provisions contained herein.
11.4 Force Majeure Neither party shall be liable to the other for any
delay or failure to perform which results from causes outside its reasonable
control.
11.5 Attorneys Fees In the event there is any dispute concerning the
terms of this Agreement or the performance of any party hereto pursuant to the
terms of this Agreement, and any party hereto retains counsel for the purpose of
enforcing any of the provisions of this Agreement or asserting the terms of this
Agreement in defense of any suit filed against said party, each party shall be
solely responsible for its own costs and attorney's fees incurred in connection
with the dispute irrespective of whether or not a lawsuit is actually commenced
or prosecuted to conclusion.
11.6 Export Regulations Xxxxxx agrees by the purchase of Products to
conform to, and abide by, the export laws and regulations of the United States,
including but not limited to, the Export Administration Act of 1979 as amended
and its implementing regulations. Xxxxxx shall include a statement in it's
standard sales terms and conditions that any shipment of Product outside the
United States will require a valid export license. Xxxxxx further agrees to
distribute Product in accordance with the territory as defined in Section 1.1.
Whenever a EU country is specified as Territory under Section 1.1, Territory
shall include all EU countries.
12. AGREEMENT
12.1 Counterparts This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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12.2 Section Headings Section headings in this Agreement are for
convenience only, and shall not be used in construing the Agreement.
12.3 Incorporation of all Exhibits Each and every exhibit referred to
hereinabove and attached hereto is hereby incorporated herein by reference as if
set forth herein in full.
12.4 Severability A judicial determination that any provision of this
Agreement is invalid in whole or in part shall not affect the enforceability of
those provisions found to be valid.
12.5 No Implied Waivers If either party fails to require performance of any
duty hereunder by the other party, such failure shall not affect its right to
require performance of that or any other duty thereafter. The waiver by either
party of a breach of any provision of this Agreement shall not be a waiver of
the provision itself or a waiver of any breach thereafter, or a waiver of any
other provision herein.
12.6 Binding Effect/Assignment This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their respective
representatives, successors and permitted assigns. This Agreement shall not be
assignable by Vendor, without the express written consent of Xxxxxx, which
consent shall not be unreasonably withheld, except to a Person in which it has
merged or which has otherwise succeeded to all or substantially all of such
party's business and assets to which this Agreement pertains and which has
assumed in writing or by operation of law its obligations under this Agreement.
Any attempted assignment in violation of this provision will be void.
12.7 Survival Sections 5.5 (Payment Terms), 5.6 (Right to Withhold), 7.2
(Post-Term Termination) and 8. (Indemnification) shall survive the expiration or
earlier termination of this Agreement.
12.8 Entirety This Agreement constitutes the entire agreement between the
parties regarding its subject matter. This Agreement supersedes any and all
previous proposals, representations or statements, oral or written. Any previous
agreements between the parties pertaining to the subject matter of this
Agreement are expressly terminated. The terms and conditions of each party's
purchase orders, invoices, acknowledgments/confirmations or similar documents
shall not apply to any order under this Agreement, and any such terms and
conditions on any such document are objected to without need of further notice
or objection. Any modifications to this Agreement must be in writing and signed
by authorized representatives of both parties.
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12.9 Authorized Representatives Either party's authorized representative
for execution of this Agreement or any amendment hereto shall be president, a
partner, or a duly authorized vice-president of their respective party. The
parties executing this Agreement warrant that they have the requisite authority
to do so.
IN WITNESS WHEREOF, the parties hereunto have executed this Agreement.
"Xxxxxx" "Vendor"
Xxxxxx Micro Inc. Dragon Systems Inc.
0000 X. Xx. Xxxxxx Xxxxx 000 Xxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
By: \s\ XX Xxxxxx By: \s\ Xxxxx X. Xxxxx
----------------------------- ------------------------------
Name: Name: Xxxxx X. Xxxxx
----------------------------- ------------------------------
Xxxxxxxx X. Xxxxxx
Title: Sr. Vice President Purchasing Title: President
----------------------------- ------------------------------
Date: 1-15-98 Date: 31 Dec. 1997
----------------------------- ------------------------------
* AGREEMENT MUST BE SIGNED BY PRESIDENT OR BY A DULY AUTHORIZED
VICE PRESIDENT OR PARTNER.
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EXHIBITS:
A - Vendor Routing Guide (if applicable)
B - Guide to Bar Code: The Product Label
C - TechNotes
D - Product Price List
E - Small And Disadvantaged Business Certification
F - Partnership America
G - Pending Litigation
H - Proprietary Information Non-Disclosure Agreement
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EXHIBIT A
VENDOR ROUTING GUIDE
Not Applicable
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Attached
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