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Exhibit 10.15
DFS VENDOR AGREEMENT
THIS DFS VENDOR AGREEMENT ("Agreement") is made as of September 30,
1998 between DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS"), having a principal
place of business at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and
TELXON CORPORATION ("Vendor"), having a principal place of business located at
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, XX 00000-0000.
Vendor sells various products ("Merchandise") to DFS, which, in turn,
pursuant to a Consignment Agreement between DFS and MRK Technologies, Ltd.
("MRK") dated as of the date hereof, are then consigned to MRK (as such
agreement is modified or amended from time to time, the "Consignment
Agreement"). (A copy of the consignment Agreement is attached hereto as Exhibit
A and incorporated herein by this reference thereto. Capitalized terms used but
not defined herein shall have the meanings given them in the Consignment
Agreement.) To induce DFS to purchase the Merchandise on behalf of MRK under the
terms of the Consignment Agreement, and in consideration thereof, Vendor and DFS
agree as follows:
1. Purchase of Merchandise by DFS; Waivers.
a. Purchase. On or about the date hereof, Vendor shall issue a "pro
forma invoice" to DFS for DFS' purchase of the Merchandise in an amount
not to exceed the Consignment Limit. DFS shall remit payment to Vendor
in the amount of such pro forma invoice Price, via wire transfer,
within one (1) business day of DFS' receipt thereof. However, within
ten (10) days of the date of such pro forma invoice, Vendor must
deliver to DFS a bona fide invoice for such Merchandise, and if such
invoice indicates an actual purchase price which differs with that of
the pro forma invoice, then DFS or Vendor, as applicable shall remit to
the other party such differing amount to conform to the actual purchase
price.
b. Waivers. Vendor understands that upon issuance of the invoice to
DFS, DFS shall have complete ownership of the Merchandise.
Nevertheless, the parties recognize that for a period of time after
issuance of such invoices but prior to shipment to MRK, the Merchandise
may be located at premises owned or under the control of Vendor. Vendor
fully recognizes DFS' interest in the Merchandise and that it is
superior to any other claimed interest in the Merchandise, including
but not limited to any interest of any creditors of Vendor. Vendor
shall not claim any rights of ownership in any of the Merchandise
and/or the proceeds thereof and shall not encumber, lease, transfer or
otherwise dispose of any of the Merchandise, except as permitted
hereunder or instructed in writing by DFS. Vendor waives and releases
any claim right, lien, right of set-off, or any other claim or lien of
any nature whatsoever that Vendor may have or hereafter acquire against
the Merchandise and/or the proceeds thereof, and hereby agrees not to
distrain or levy upon any of the Merchandise. Vendor will keep the
Merchandise segregated from all other merchandise located at any such
premises, and keep them readily identifiable as being the property of
DFS. Vendor will maintain records sufficient to enable DFS to identify
the Merchandise with specificity.
2. MRK Shipments. Whenever MRK requests the shipment of Merchandise
from Vendor which DFS has purchased hereunder for consignment to MRK pursuant to
the Consignment Agreement, Vendor shall request DFS' acceptance thereof, such
acceptance to be indicated by DFS' issuance of an approval number. Vendor hereby
agrees and confirms as follows: (a) that the Merchandise will be delivered to
MRK within ten (10) days following DFS' acceptance; (b) that DFS will receive
Vendor's invoice for such merchandise within ten (10) days from the date of
delivery of the Merchandise to MRK; and (c) that DFS' approval number shall be
on the invoice; subject, however, in all events to DFS' right to revoke its
acceptance prior to the shipment of the Merchandise to MRK.
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3. Vendor's Warranties. By delivery of any invoice, Vendor warrants the
following:
a. That Vendor transfers to DFS all right, title and interest in
and to the Merchandise so described, contingent upon DFS'
prior approval for Vendor to ship such Merchandise to MRK;
b. That Vendor's title to the Merchandise is free and clear of
all liens and encumbrances when sold to DFS and transferred to
MRK;
c. That the Merchandise is in a salable condition suitable for
ordinary sale, free from any known defects; provided, however,
if any Merchandise reflects a defect, Vendor shall repair such
Merchandise at its sole expense;
d. That the Merchandise is the subject of, and substantially
conforms to, a bona fide order by MRK placed with and accepted
by Vendor, and that MRK has requested the Merchandise be
purchased by DFS for MRK pursuant to the terms of the
Consignment Agreement; and
e. That the Merchandise subject to the transaction has been
shipped to MRK not more than ten (10) days prior to the
Invoice Date (with the exception of O.E.M. sourced
Merchandise).
If Vendor breaches any of the above-described warranties, Vendor will
immediately: (i) pay to DFS an amount equal to the total unpaid balance (being
principal and finance and other charges) owed to DFS on all Merchandise related
to the breach; and (ii) reimburse DFS for all costs and expenses (including, but
not limited to, reasonable attorneys' fees) incurred by DFS as a result of the
breach.
4. Payments to DFS. Vendor acknowledges that it is in its best business
interest to have DFS obtain the Merchandise from Vendor hereunder and consign it
to MRK under the Consignment Agreement in order to supply such merchandise to
MRK's CUSTOMERS. In consideration thereof, Vendor agrees as follows:
a. Purchase Charge. Vendor shall pay DFS a purchase charge, calculated
and payable monthly in arrears, in an amount equal to the "Prime Rate"
minus fifteen one-hundredths of one percent (0.15%) per annum on the
average daily outstanding balance of all Invoice Prices (herein, the
"Purchase Charge"). The Purchase Charge will: (i) be computed based on
a 360 day year; and (ii) accrue from the date that DFS makes an advance
hereunder until DFS received the full and final payment of the Invoice
Price. For purposes of this Agreement "Prime Rate" means the "prime
rate" as published in The Wall Street Journal. The Prime Rate will
change and take effect for purposes of this Agreement on the day of any
change in the prime rate published in The Wall Street Journal.
b. Advance Fee. Vendor agrees to pay to DFS an advance fee equal to
one-tenth of one percent (0.10%) of the amount of each Invoice Price
advanced by DFS.
c. Monthly Administration Fee. Vendor shall pay to DFS an
administration fee, payable on the 31st day after each Invoice Date,
and every thirty (30) days thereafter until the applicable Invoice
Price has been satisfied in full, in an amount equal to one-tenth of
one percent (0.10%) of the total outstanding balance of all unpaid
Invoice Prices.
d. Principal Repayment; Purchase Maturity Charge. (i) Principal
Repayment. As Vendor is aware under the Consignment Agreement, MRK is
required to immediately pay DFS the Invoice Price owed to DFS for each
item of Merchandise after MRK sells the Merchandise and collects the
purchase price from the purchaser of such merchandise. However, if MRK
does not collect such amount from the purchaser within ninety (90) days
after the Invoice Date for such merchandise (the "Consignment Period"),
or for any other reason the Invoice Price is not satisfied in full to
DFS on or before the expiration of the Consignment Period, Vendor will
immediately pay DFS the Invoice
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Price. (ii) Purchase Maturity Charge. Additionally, to the extent the
applicable Invoice Price remains unpaid to DFS for any reason,
one-hundred (100) or more days from the applicable Invoice Date, Vendor
shall pay to DFS a weekly fee, calculated and payable in arrears, in an
amount equal to the Prime Rate plus two and one-half of one percent
(2.5%) per annum of the average daily outstanding balance of such
Invoice Prices which remain unpaid beyond such period. Such change will
be computed based on a 360 day year.
e. Payment Terms Generally. DFS may deduct from amounts owed to Vendor
for any purchases hereunder or any other amounts owed to Vendor, the
amount of any fees, charges or other amounts payable by Vendor to DFS.
To the extent that there exists no indebtedness from DFS to Vendor
against which to set off the amount of such fees, charges or other
amounts, Vendor hereby agrees to pay in full to DFS any such amounts,
or portion thereof. DFS will send Vendor a monthly billing statement
identifying all fees and other charges due from Vendor. The amounts
specified on each billing statement will be: (i) due and payable in
full immediately on receipt, and (ii) an account stated, unless DFS
receives Vendor's written objection thereto within 15 days after it is
mailed to Vendor. DFS may adjust the billing statement at any time to
conform to applicable law and this Agreement. Vendor will make all
payments to DFS at 0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Regional Vice President, unless Vendor is otherwise
notified in writing by DFS. Any checks or other instrument delivered by
DFS under this Agreement will constitute conditional payment until the
funds represented by such instruments are actually received by DFS.
Vendor hereby waives any right it may now or in the future have to
set-off its obligation to make any payment to DFS under this Agreement
or any of the other documents pursuant to which the transactions
contemplated hereby and consummated, against any obligation of DFS to
Vendor, whether under this Agreement, such other documents or any other
agreement between DFS and Vendor.
f. Maximum Interest. Regardless of any provision contained herein, in
the Consignment Agreement or in any other document executed or
delivered in connection herewith or therewith, DFS shall never be
deemed to have contracted for, charged or be entitled to receive,
collect or apply as interest hereunder or under the Consignment
Agreement (whether termed interest herein or deemed to be interest by
judicial determination or operation of law), any amount in excess of
the maximum amount allowed by applicable law, and, if DFS ever
receives, collects or applies as interest any such excess, such amount
which would be excessive interest will be applied first to the
reduction of the unpaid principal balances of advances hereunder, and,
second, any remaining excess will be paid to Vendor. In determining
whether or not the interest paid or payable under any specific
contingency exceeds the highest lawful rate, Vendor and DFS shall, to
the maximum extent permitted under applicable law: (i) characterize any
non-principal payment (other than payments which are expressly
designated as interest payments hereunder) as an expense or fee rather
than as interest; (ii) exclude voluntary pre-payments and the effect
hereof, and (iii) spread the total amount of interest throughout the
entire term hereof so that the interest rate is uniform throughout such
term.
5. Repurchase of Merchandise. Whenever DFS deems it necessary in its
sole discretion to repossess or if DFS otherwise comes into possession, actual
or constructive, of any Merchandise in which it has a security interest or other
lien, Vendor will purchase such Merchandise from DFS at the time of DFS'
repossession or other acquisition of possession. Additionally, Vendor will also
repurchase from DFS, if requested in writing by DFS, any of the Merchandise for
which MRK has not been able to facilitate the sale thereof within ninety (90)
days from the date hereof. Such repurchases by Vendor shall be completed in
accordance with the following terms and conditions:
a. Vendor will purchase such Merchandise, regardless of its condition,
at the point where DFS repossesses it or where it otherwise comes into
DFS' possession;
b. The purchase price Vendor will pay to DFS for such Merchandise will
be due
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and payable immediately in full, and will be an amount equal to (i)
Vendor's original per unit Invoice Price for such Merchandise,
including all unpaid freight, service and other charges related
thereto, and (ii) all costs and expenses (including, but not limited
to, reasonable attorneys' fees) paid or incurred by DFS in connection
with the repossession of such Merchandise; and
c. Vendor shall not assert or obtain any interest in or to any
Merchandise acquired by Vendor until the purchase price therefor is
paid in full.
6. Indemnifications. In addition to all other obligations of Vendor set
forth in this Agreement, Vendor will be liable for, indemnify and hold DFS
harmless for one hundred percent (100%) of any loss DFS suffers from DFS'
purchase of Merchandise from Vendor and subsequent consignment of said
Merchandise, which loss shall include, but not be limited to, all claims losses,
liability, suits or damages sustained (including reasonable attorneys' fees)
arising out of DFS' performance of the terms of or set forth in and/or
contemplated by this Agreement, the Consignment Agreement and/or any other
agreement, whether resulting from the following or otherwise: (i) damage to
property, or injury to or death or persons, occasioned by or in connection with,
the acts or omissions of Vendor, MRK, or either of their respective agents,
employees or subcontractors, or occasioned by the consigned Merchandise, the use
or presence thereof, or by any other act or omission actually or allegedly
giving rise to liability on the part of DFS, (ii) product liability claims
relating to the Merchandise or any enhancements thereto (whether due to
manufacturing or installation defects, failure to warn of potential hazards,
design defects, claims or defenses asserted by any buyer of the Merchandise or
otherwise), (iii) claims based upon any express or implied warranty, including,
but not limited to, any implied warranty of merchantability or fitness for a
particular purpose, (iv) issues regarding the value, quality, condition,
operation, or description of the consigned Merchandise (whether or not
discoverable), and any other claim that such goods are defective or otherwise
fail to perform to the provisions of the underlying contact, (v) any
unauthorized release or delivery of the Merchandise to any party other than as
provided herein, (vi) any theft or conversion of the Merchandise, (vii) any
mysterious disappearance of the Merchandise, (viii) any damage or casualty loss,
or other shortage of the Merchandise, (ix) any patent, trade secret, copyright
infringement or other claim with respect to third party proprietary rights, or
any other intellectual property claims (whether for patent, copyright or
trademark infringement or unauthorized use or sale or otherwise), (x) consumer
protection or deceptive trade practice claims, or (xi) antitrust claims.
7. Extension of Time; Waivers. DFS may extend the time of MRK in
payment default to fulfill its obligations to DFS with respect to the
Merchandise without altering Vendor's obligations hereunder provided DFS has
given Vendor notice of such payment default in respect of the Merchandise within
five (5) business days thereof. Notwithstanding the foregoing, DFS may extend
the time of MRK in default to fulfill any other of its obligations to DFS, or
any kind or nature including a nonpayment related default in respect of the
Merchandise, without notice to Vendor and without altering Vendor's obligations
hereunder Vendor waives any rights it may have to notice of nonpayment,
nonperformance, dishonor, the amount of indebtedness of MRK outstanding at any
time, any legal proceeding against MRK, and any other demands and notices except
as required by law, and any rights it may have to require DFS to proceed against
MRK or the Merchandise or to pursue any other remedy in DFS' power. Vendor's
liability to DFS is direct and unconditional and will not be affected by any
change in the terms of payment or performance of any agreement between DFS and
MRK including but not limited to the Consignment Agreement, or the release,
settlement or compromise of or with any party liable for the payment or
performance thereof, the release or non-perfection of any security interest
granted DFS in any agreement between DFS and MRK, any change in MRK's financial
condition, or the interruption of business relations between DFS and MRK.
8. Expenses; Release of Information. Vendor will pay all DFS' expenses
(including, but not limited to, court costs, arbitration fees and reasonable
attorneys' fees) in the event DFS is required to enforce its rights against
Vendor. Upon each request by DFS and provided MRK has consented to the release
of the described information, which consent may be evidenced by a security or
other agreement between DFS and MRK in which authorized disclosure of such
information, Vendor will release to DFS any credit, financial or
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information on MRK, whether or not such information is public or non-public. In
the event MRK has not consented to the release of the information described
above, upon each request by DFS, Vendor will release to DFS any credit, publicly
available financial or other public information on MRK upon each request by DFS.
Vendor will immediately notify DFS if Vendor reasonably believes that MRK has
violated the terms of any franchise, permission, license or right to sell or
deal in the Merchandise.
9. Invoices. Invoices submitted to DFS by Vendor for inventory sold to
DFS hereunder in connection with the Consignment Agreement should indicate that
the Merchandise is "Sold to DFS" and "Shipped to MRK."
10. Successors and Assigns; Obligations. This Agreement will be binding
upon and inure to the benefit of DFS' successors and assigns. Vendor cannot
assign this Agreement without DFS' prior written consent. DFS may perform or
cause to be performed any or all of its obligations hereunder by any of its
subsidiaries and/or affiliated companies. Vendor's obligations under this
Agreement inure to the benefit of any of DFS' subsidiaries and/or affiliated
companies.
11. Events of Default. The occurrence of any of the following events
shall be deemed an "Event of Default" under this Agreement: (a) Vendor's failure
to pay when due any amount owed DFS hereunder or under any other agreement
between DFS and Vendor; (b) Vendor's failure to perform or observe any covenant,
term or provision hereunder or under any other agreement between DFS and Vendor;
(c) the occurrence of any default under the Consignment Agreement; (d) Vendor
shall cease existence as a corporation, partnership, limited liability company
or trust, as applicable; (e) Vendor ceases or suspends business; (f) Vendor
makes a general assignment for the benefit of creditors; (g) Vendor becomes
insolvent or voluntarily or involuntarily becomes subject to the Federal
Bankruptcy Code, any state insolvency law or any similar law; (h) any receiver
is appointed for any assets of Vendor; (i) Vendor sells, transfers or assigns
all or substantially all of its assets; (j) Vendor merges its business with
another business in a transaction in which Vendor is not the surviving entity;
or (k) there is any material adverse change in Vendor's financial condition.
12. Remedies Upon Default. Upon the occurrence of any Event of Default,
DFS shall have the right, at DFS' option, to immediately exercise one or more of
the following remedies: (a) refuse to extend any further financing to MRK or
Vendor, pursuant to the Consignment Agreement or otherwise; (b) terminate this
Agreement and the Consignment Agreement; or (c) exercise any other rights it may
have under the laws of the state governing this Agreement.
13. Termination. Either party may terminate this Agreement by notice to
the other in writing, the termination to be effective thirty (30) days after
receipt (which receipt is presumed to be five (5) business days after the same
is sent) of notice by the other party provided, however, that DFS may terminate
this Agreement immediately if an Event of Default has occurred. In any event, no
termination of this Agreement will affect any of Vendor's (or its assignees,
whether permitted or unpermitted) liability with respect to any financial
transactions entered into by DFS with MRK prior to the effective date of
termination, including, without limitation, transactions that will not be
completed until after the effective date of termination.
14. Miscellaneous. Vendor will notify DFS of any changes in its name or
business structure. Vendor waives notice of DFS' acceptance of this Agreement.
This Agreement is not intended, nor shall it be deemed to, directly or
indirectly, benefit any person or entity, including MRK, who is not a party
hereto. If at any time any one or more of the provisions of this Agreement
becomes invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby. DFS' failure to exercise any
rights granted hereunder shall not operate as a waiver of those rights. The
rights of DFS under this Agreement are cumulative, may be exercised as often as
it considers appropriate, and are in addition to its rights under the general
law.
15. No Oral Agreements. There are no oral or unwritten agreements
between DFS and Vendor regarding the subject matter hereof, Vendor and DFS
acknowledge and agree that
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all agreements and understandings between them are set forth in this Agreement
and any terms letters executed in connection herewith (as the same may be
revised from time to time without necessitating an amendment of this Agreement)
or in any other writing between the parties relating hereto.
16. BINDING ARBITRATION
16.1 Arbitrable Claims. Except as otherwise specified below, all
actions, disputes, claims and controversies under common law,
statutory law or in equity of any type or nature whatsoever
(including, without limitation, all torts, whether regarding
negligence, breach of fiduciary duty, restraint of trade,
fraud, conversion, duress, interference, wrongful replevin,
wrongful sequestration, fraud in the inducement, usury or any
other tort, all contract actions, whether regarding express or
implied terms, such as implied covenants of good faith, fair
dealing, and the commercial reasonableness of any Collateral
disposition, or any other contract claim, all claims of
deceptive trade practices or lender liability, and all claims
questioning the reasonableness or lawfulness of any act),
whether arising before or after the date of this Agreement,
and whether directly or indirectly relating to: (a) this
Agreement or any other agreements relating hereto, and/or any
amendments and addenda hereto or thereto, or the breach,
invalidity or termination hereof or thereof; (b) any previous
or subsequent agreement between DFS and Vendor; (c) any act
committed by DFS or by any parent company, subsidiary or
affiliated company of DFS (the "DFS Companies"), or by any
employee, agent, officer of director of a DFS Company whether
or not arising within the scope and course of employment or
other contractual representation of the DFS Companies provided
that such act arises under a relationship, transaction or
dealing between DFS and Vendor; and/or (d) any other
relationship, transaction or dealing between DFS and Vendor
(collectively the "Disputes"), will be subject to and resolved
by binding arbitration.
16.2 Administrative Body. All arbitration hereunder will be
conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association ("AAA"). If the AAA is
dissolved, disbanded or becomes subject to any state or
federal bankruptcy or insolvency proceeding, the parties will
remain subject to binding arbitration which will be conducted
by a mutually agreeable arbitral forum. The parties agree that
all arbitrator(s) selected will be attorneys with at least
five (5) years secured transactions experience. The
arbitrator(s) will decide if any inconsistency exists between
the rules of any applicable arbitral forum and the arbitration
provisions contained herein. If such inconsistency exists, the
arbitration provisions contained herein will control and
supersede such rules. The site of all arbitration proceedings
will be in the Division of the Federal Judicial District in
which AAA maintains a regional office that is closest to
Vendor.
16.3 Discovery. Discovery permitted in any arbitration proceeding
commenced hereunder is limited as follows. No later than
thirty (30) days after the filing of a claim for arbitration,
the parties will exchange detailed statements setting forth
the facts supporting the claim(s) and all defenses to be
raised during the arbitration, and a list of all exhibits and
witnesses. No later than twenty-one (21) days prior to the
arbitration hearing, the parties will exchange a final list of
all exhibits and all witnesses, including any designation of
any expert witness(es) together with a summary of their
testimony; a copy of all documents and a detailed description
of any property to be introduced at the hearing. Under no
circumstances will the use of interrogatories, request for
admission, requests for the production of documents or the
taking of deposition be permitted. However, in the event of
the designation of any expert witness(es), the following will
occur: (a) all information and documents relied upon by the
expert witness(es) will be delivered to the opposing party,
(b) the opposing party will be permitted to depose the expert
witness(es), (c) the opposing party will be permitted to
designate rebuttal expert witness(es), and (d) the arbitration
hearing will be continued to the earliest possible date that
enables the foregoing limited discovery to be accomplished.
16.4 Exemplary or Punitive Damages. The Arbitrator(s) will not
have the authority to award exemplary or punitive damages.
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16.5 Confidentiality of Awards. All arbitration proceedings,
including testimony or evidence at hearings, will be kept
confidential, although any award or order rendered by the
arbitrator(s) pursuant to the terms of this Agreement may be
entered as a judgment or order in any state or federal court
and may be confirmed within the federal judicial district
which includes the residence of the party against whom such
award or order was entered. This agreement concerns
transactions involving commerce among the several states. The
Federal Arbitration Act, Title 9 U.S.C. Sections 1 et seq., as
amended ("FAA") will govern all arbitration(s) and
confirmation proceedings hereunder.
16.6 Prejudgment and Provisional Remedies. Nothing herein will be
construed to prevent DFS' or Vendor's use of bankruptcy,
receivership, injunction, repossession, replevin, claim and
delivery, sequestration, seizure, attachment, foreclosure,
dation and/or any other prejudgment or provisional action or
remedy relating to any Collateral for any current or future
debt owed by either party to the other. Any such action or
remedy will not waive DFS' or Vendor's right to compel
arbitration of any Dispute.
16.7 Attorneys' Fees. If either Vendor or DFS brings any other
action for judicial relief with respect to any Dispute (other
than those set forth in Section 16.6), the party bringing such
action will be liable for and immediately pay all of the other
party's costs and expenses (including attorneys' fees)
incurred to stay or dismiss such action and remove or refer
such Dispute to arbitration. If either Vendor or DFS brings or
appeals an action to vacate or modify an arbitration award and
such party does not prevail, such party will pay all costs and
expenses, including attorneys' fees, incurred by the other
party in defending such action. Additionally, if Vendor sues
DFS or institutes any arbitration claim or counterclaim
against DFS in which DFS is the prevailing party, Vendor will
pay all costs and expense (including attorneys' fees) incurred
by DFS in the course of defending such action or proceeding.
16.8 Limitations. Any arbitration proceeding must be instituted:
(a) with respect to any Dispute for the collection of any debt
owed by either party to the other, within two (2) years after
the date the last payment was received by the instituting
party, and (b) with respect to any other Dispute, within two
(2) years after the date the incident giving rise thereto
occurred, whether or not any damage was sustained or capable
of ascertainment or either party knew of such incident.
Failure to institute an arbitration proceeding within such
period will constitute an absolute bar and waiver to the
institution of any proceeding, whether arbitration or a court
proceeding, with respect to such Dispute.
16.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Agreement.
17. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS
AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH
RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE WITHOUT A JURY. VENDOR AND DFS WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH
PROCEEDING.
18. Governing Law. Vendor acknowledges and agrees that this and all
other agreements between Vendor and DFS have been substantially negotiated, and
will be substantially performed, in the state of Ohio. Accordingly, Vendor
agrees that all Disputes will be governed by, and construed in accordance with,
the laws of such state, except to the extend inconsistent with the provisions of
the FAA which shall control and govern all arbitration proceedings hereunder.
THIS AGREEMENT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
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ATTEST: TELXON CORPORATION
/s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
----------------------------------- -----------------------------------
(Assistant) Secretary Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President - CFO
Xxxxx X. Xxxxxx
Vice President Legal Administration
& Corporate Counsel
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ XXXXXX XXXXXXXXXX
-----------------------------------
Xxxxxx XxxXxxxxxx - Vice President
Director of Operations - Technology
Division
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