EXHIBIT 10.26
MARUBUN/PEERLESS Supplier/Distribution Agreement
SUPPLIER/DISTRIBUTION AGREEMENT
THIS AGREEMENT, is concluded and made effective on this December 14, 1999 by and
between MARUBUN Corporation, a corporation organized and existing under the laws
of Japan, having principal place of business at Xxxxxxx Xxxxx Xxxx., 0-0,
Xxxxxxxxxx Xxxxxxxxx, Xxxx-xx, Xxxxx 000-0000, Xxxxx (hereinafter referred to as
"MARUBUN") and PEERLESS Systems (Registered Trademark) Corporation, a Delaware
corporation having its principal place of business at 0000 Xxxxxxxxx Xxxxxx, Xx
Xxxxxxx, XX 00000 XXX (hereinafter referred to as "PEERLESS"), either or both of
which is referred to as a "party" or the "parties".
RECITALS:
WHEREAS, MARUBUN is desirous of stable supplies of a certain product hereinafter
specified in Attachment A (hereinafter referred to as the "PRODUCTS") from
PEERLESS;
WHEREAS, MARUBUN will supply PRODUCTS and special value-added services to any
Japan-based customers that require said PRODUCTS and services;
WHEREAS, MARUBUN will be the exclusive distributor of the PRODUCT in Japan,
WHEREAS, MARUBUN is desirous of supplying PRODUCTS to MARUBUN throughout the
period hereinafter specified;
NOW, THEREFORE, the parties hereby agree as follows:
APPLICATION. This Agreement shall be applied to all the transactions with regard
to PRODUCTS between MARUBUN and PEERLESS. In case any INDIVIDUAL RELEASE as
stipulated in Paragraph 3.1 herein conflicts with this Agreement, this Agreement
shall prevail over the conflicting parts of such INDIVIDUAL RELEASE.
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1. PRODUCTS. PRODUCTS subject to this Agreement are listed in Attachment A.
The description of PRODUCTS is as specified in an INDIVIDUAL RELEASE or
otherwise agreed by both parties.
2. Forecasting
2.1. Demand Forecast
2.1.1. MARUBUN shall provide PEERLESS a PRODUCT demand forecast,
which shall cover a minimum of twelve (12) months detailed
by PRODUCT and month.
2.1.2. Forecasts shall constitute actual production estimates of
MARUBUN's anticipated requirements for PRODUCTS. This
forecast shall not contractually obligate PEERLESS to
supply, nor contractually obligate MARUBUN to purchase the
quantities of PRODUCTS set forth in such forecasts.
2.2. Forecast Updates
2.2.1. By the first of every month, during the term of this
Agreement, MARUBUN will provide PEERLESS an updated PRODUCTS
demand forecast covering a rolling twelve (12) month period
(not to extend beyond the term of the Agreement), which will
be reviewed for approval by PEERLESS within ten (10) days of
receipt by PEERLESS.
2.3. Forecast Acceptance
2.3.1. PEERLESS shall have the right to ask for clarification of
data or format.
3. Order
3.1. Individual Releases
3.1.1. The actual transaction for PRODUCTS between the parties
hereof shall be carried out by exchanging MARUBUN order-
release forms and PEERLESS' order acknowledgment forms both
in written form duly signed by respective managers with
execution authority (hereinafter referred to as "INDIVIDUAL
RELEASE"). Without limited the foregoing, to the extent the
provisions of a purchase order conflict with the terms and
provisions of this Agreement, the terms and provisions of
this Agreement shall control. Each INDIVIDUAL RELEASE shall
specify:
3.1.1.1. MARUBUN's purchase order number
3.1.1.2. MARUBUN's tax status -exempt or non-exempt
3.1.1.3. Ship to location-complete address
3.1.1.4. Xxxx to location -complete address
3.1.1.5. Order from location-complete address
3.1.1.6. Shipping instructions, including preferred carrier
and carrier account number
3.1.1.7. The agreement number of this agreement
3.1.1.8. Name of MARUBUN designated contact for procurement
3.1.1.9. Product part numbers and quantities being ordered
(in increments of the Minimum Order Quantity)
3.1.1.10. Product's negotiated unit price per Attachment A
3.1.1.11. Requested receipt dates (in increments of the
Minimum Shipment/Pack Quantity)
3.2. Quantity Discounts
3.2.1. MARUBUN agrees that if MARUBUN decreased the total quantity
of an order that has a unit price based on an agreed to
quantity MARUBUN will pay an applicable higher unit price
for previous shipments and for new shipments.
3.3. Lead Times
3.3.1. PEERLESS shall publish manufacturing lead times on the fifth
working day of each month.
3.3.2. MARUBUN shall issue individual orders in accordance with the
published lead times.
3.4. Minimum Order Amount
3.4.1. PEERLESS shall publish minimum Amount orders on the fifth
working day of each month.
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3.4.2. MARUBUN shall issue individual orders in accordance with the
published minimum order quantities. Failure to comply shall
result in an increase in the unit cost at a pre-negotiated
rate.
3.5. Minimum Shipment/Pack Quantity
3.5.1. PEERLESS shall publish minimum shipment quantities on the
fifth working day of each month.
3.5.2. MARUBUN shall issue individual orders in accordance with the
published minimum shipment quantities. Failure to comply
shall result in an increase in the unit cost at a pre-
negotiated rate.
3.6. Acceptance Criteria
3.6.1. PEERLESS shall acknowledge MARUBUN's order in writing within
10 calendar days.
3.6.2. PEERLESS shall reject any order that it cannot reasonably
deliver according to the terms of the release.
3.6.3. Acceptance by PEERLESS shall be deemed to have occurred if
PEERLESS fails to accept or reject the order within 10
calendar days after receiving such order.
3.7. Order Release Rescheduling
3.7.1. MARUBUN may reschedule the delivery date of any undelivered
PRODUCTS scheduled for delivery provided: (i) the notice is
received by PEERLESS more than thirty (30) days prior to
shipment date, (ii) the rescheduled delivery date is within
sixty (60) days after the shipment date.
3.7.2. Once a shipment date is rescheduled, the new shipment date
is firm and cannot be rescheduled by MARUBUN.
3.7.3. Only one (1) reschedule for an order line item (scheduled
ship date) is permitted of PRODUCT schedule for shipment.
MARUBUN shall be liable for any additional costs or expenses
incurred by PEERLESS in the delivery date by MARUBUN.
3.8. Order Release Cancellation
3.8.1. MARUBUN can cancel any order release for convenience prior
to production start. If cancellation is after production
start, MARUBUN agrees to pay PEERLESS 100% of the release.
3.8.2. If PRODUCT is rescheduled by MARUBUN and subsequently
cancelled, cancellation charges for such rescheduled product
shall be computed based upon the originally scheduled
delivery date.
3.8.3. If MARUBUN directs PEERLESS to stop work or hold shipments,
such action shall be deemed equivalent to a cancellation,
unless otherwise mutually agreed in writing.
4. Payment
4.1. Price
4.1.1. PEERLESS shall guarantee that the unit price of PRODUCTS in
this Agreement is not higher than that charged to any third
party under the same or the similar conditions to this
Agreement.
4.1.2. Unit price shall be as agree upon by PEERLESS and MARUBUN
as set forth in Attachment A.
4.2. Invoices
4.2.1. PEERLESS shall invoice MARUBUN at the time of shipment for
all PRODUCTS shipped.
4.3. Terms
4.3.1. Prices and payment shall be in U.S. dollars in the U.S.
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4.3.2. PRODUCTS shall be shipped F.O.B. Place of Manufacture as
designed by PEERLESS unless otherwise agreed upon in
writing. The said trade terms shall be construed according
to the California Commercial Code.
4.3.3. MARUBUN shall pay the full amount of the price of the
PRODUCT shipped in a given month by the 15th of the
following month in which the invoice was submitted.
4.3.4. In the event MARUBUN fails to pay the amount in full within
such period, MARUBUN shall in addition pay PEERLESS interest
on the remaining unpaid balance, commencing to accrue 31
calendar days after the date of the invoice, at the lesser
1.5 percent simple interest per month or the highest rate of
interest permitted by law with respect to such balance.
4.4. Taxes, Tariffs & Duties
4.4.1. Unless otherwise agreed between PEERLESS and MARUBUN prior
to the completion of manufacture of each pertinent order,
MARUBUN shall have sole responsibility for collecting,
reporting, and/or paying all income, sales, excise,
property, value-added tax, and other taxes imposed by any
governmental authority, as they pertain to MARUBUN's duties,
obligations, and performance hereunder. Without limiting the
generality of the foregoing, MARUBUN shall be responsible
for reporting and paying all customs, import, and remittance
duties or assessments arising from the import of the Product
into any and all countries, except for taxes based on
PEERLESS' net income.
5. Customer Pricing. It is agreed between the parties that all pricing for
Product, as defined in Attachment A herein, to third parties, as offered by
MARUBUN, shall be reviewed and approved by PEERLESS prior to the initial
release of each pricing plan. Once approved by PEERLESS, and attached
hereto as Attachment B, MARUBUN may offer this pricing plan without further
prior approval from PEERLESS.
6. Delivery
6.1. Delivery Date
6.1.1. MARUBUN shall designate the delivery date of PRODUCTS to
MARUBUN in each individual release.
6.1.2. PEERLESS shall obtain MARUBUN's consent if PEERLESS intends
to deliver PRODUCTS before or after the delivery date.
6.1.3. In case such revised delivery schedule cannot satisfy
MARUBUN, then MARUBUN may indicate PEERLESS a schedule
acceptable to MARUBUN, require air shipment or other rapid
transport method, or terminate this Agreement and INDIVIDUAL
RELEASE partly or entirely at its discretion.
6.1.4. MARUBUN and PEERLESS shall negotiate in good faith as to
indemnity for the loss, if any, due to such delay or change.
6.2. Delay of delivery
6.2.1. PEERLESS shall not be liable nor in default of the Agreement
if PEERLESS' supply of the PRODUCTS becomes constrained or
if, for any reason beyond PEERLESS' reasonable control,
including inventory shortages, work slowdowns or stoppages,
PEERLESS is unable to fill the order or make delivery. In
such event, PEERLESS may, as PEERLESS deems reasonable,
reduce quantities or delay shipments to MARUBUN.
6.3. Shipment & Packing
6.3.1. Unless otherwise agreed, PEERLESS shall, at its expense,
package and label PRODUCTS in accordance with PEERLESS'
customary procedures.
6.3.2. Unless MARUBUN designates a preferred carrier shipment shall
be by a carrier selected by PEERLESS.
6.3.3. PEERLESS shall devote reasonable efforts to ship the
PRODUCTS within the quoted lead-time plus 5 working days
after receipt and acceptance of the order.
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6.3.4. PEERLESS shall make all the arrangements at its expense
until the delivery so that PRODUCTS can be transported
safely to the aforementioned destination.
6.3.5. Title and all risks of loss or damage of PRODUCTS shall
transfer from PEERLESS to MARUBUN upon delivery thereof.
6.3.6. In case of necessity, MARUBUN may have PEERLESS transport
PRODUCTS to any destination other than the place that is
stipulated in INDIVIDUAL RELEASE, upon MARUBUN's prior
written notice.
6.4. Inspection
6.4.1. PEERLESS shall perform inspection of PRODUCTS at their own
expense and responsibility under the Inspection Standard
agreed by both parties before the shipment of PRODUCTS.
PEERLESS shall deliver only the units of PRODUCTS that have
passed this shipping inspection.
6.4.2. MARUBUN shall carry out an acceptance inspection under the
Inspection Standard agreed by both parties within reasonable
period after the receipt of PRODUCTS by MARUBUN at MARUBUN's
own expense and responsibility.
6.4.3. MARUBUN shall notice PEERLESS in writing within 5-day period
and inform PEERLESS of the nature of such nonconformity in
reasonable detail.
6.4.4. PEERLESS may take whatever actions deemed necessary or
appropriate to remedy or cure such nonconformity in the
PRODUCTS in any reasonable manner, during the 60-day period
following PEERLESS' receipt of such notice.
6.4.5. If 60 days elapse after PEERLESS has received the notice of
nonconformity and PEERLESS has not remedied or cured such
nonconformity in the PRODUCTS, MARUBUN may return to
PEERLESS any PRODUCTS in such shipment that demonstrate
material nonconformity.
6.5. Quality Assurance
6.5.1. In case MARUBUN acknowledges it necessary, MARUBUN may
inspect the production and quality control procedure
PRODUCTS, observe the shipping-inspection of PEERLESS at
PEERLESS's facility(s) or the ordinary ship place(s) with
prior written notice and guide PEERLESS with regard to such
production and quality con procedures and/or such shipping
inspection.
6.5.2. The inspection in the production and quality control
procedures of PRODUCTS, observation and guidance shall be
performed by MARUBUN's qualified representatives. All of the
expenses for such inspection, observation and guidance
(which include voyage expenses and hotel expenses for
MARUBUN's qualified representatives) shall be borne by
PEERLESS when aforementioned inspection, observation and
guidance are based upon PEERLESS' request
6.6. Export Regulations
6.6.1. MARUBUN shall comply with all export laws and restrictions
and regulations of the Department of Commerce, or other U.S.
or foreign agency or authority, and shall not export, or
allow re-export of the PRODUCTS or any Confidential
Information or any direct product thereof in violation of
any such restrictions, laws or regulations, or to
Afghanistan, People's Republic of China or any Group Q, S,
W, Y or Z country specified in the then current Supplement
No. 1 to Section 770 of the U.S. Export Administration
Regulations (or any successor supplement or regulations).
6.6.2. MARUBUN shall obtain and bear all expenses relating to any
necessary licenses and/or exemptions with respect to the
export from the U.S., of all material or items deliverable
by PEERLESS to any location, and shall demonstrate to
PEERLESS compliance with all applicable laws, and
regulations prior to delivery thereof by PEERLESS
6.6.3. MARUBUN agrees to defend, indemnify, and hold harmless
PEERLESS from and against any claim, loss liability,
expense, or damage (including fines and legal fees) incurred
by
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PEERLESS with respect to any of MARUBUN's export or re-
export activities contrary to foregoing instructions.
7. Warranty
7.1. Conforming Material
7.1.1. PEERLESS shall warrant that PRODUCTS conform to MARUBUN's
specifications and free from any defects in quality,
material and workmanship for six (6) months from the date
when PRODUCTS have passed MARUBUN's acceptance inspection
(hereinafter referred to as "WARRANTY TERM") .
7.1.2. In case any defect is found in PRODUCTS within WARRANTY
TERM MARUBUN shall notify PEERLESS thereof and may adopt
either of the following measures as determined by the lowest
cost to PEERLESS, and then, PEERLESS shall accept MARUBUN's
decision and settle the matter at its cost immediately.
7.1.2.1. to repair the defective unit on MARUBUN's site and
demand the payment of the cost thereof from
PEERLESS, or
7.1.2.2. to return such defective unit to PEERLESS and
demand replacement from PEERLESS
7.2. Nonconforming Material
7.2.1. Product damaged in transit shall be returned to PEERLESS
within 30 days after receipt, accompanied by such
documentation as may reasonably be required to assert any
claims that may lie against the carrier causing such damage.
7.2.2. In case MARUBUN finds any non-qualified units of PRODUCTS
that does not conform to the specification specified by
MARUBUN and/or conditions under this Agreement and /or
INDIVIDUAL RELEASE through acceptance-inspection, MARUBUN
shall notify PEERLESS thereof in writing and MARUBUN may
adopt either of the follow measures at MARUBUN's discretion:
7.2.2.1. to repair PRODUCTS by MARUBUN or PEERLESS at the
expense of PEERLESS
7.2.2.2. to refuse the receipt of such non-qualified unit
and demand replacement therefor without delay
expenses occasioned thereby such as sending back
of such non-qualified unit and transport of
substitute shipment be borne by PEERLESS
7.2.2.3. to reduce the price of non-qualified unit of
PRODUCTS from the amount price of PRODUCTS at
subsequent INDIVIDUAL RELEASE or to demand the
payment of such price
7.2.2.4. to terminate this Agreement and/or INDIVIDUAL
RELEASE partly or in its entirety
7.2.3. In case the quantity of PRODUCTS delivered by PEERLESS has
not conformed to agreed quantity in INDIVIDUAL RELEASE,
MARUBUN shall notify PEERLESS thereof and may demand
PEERLESS, to take back, supply the balance agreed quantity
within the period designated by MARUBUN, or adjust at
subsequent INDIVIDUAL RELEASES at PEERLESS' expense unless
otherwise agreed upon
7.2.4. In case MARUBUN has incurred any damage because of such non-
qualified units of PRODUCTS and/or shortage, MARUBUN and
PEERLESS shall negotiate in good faith as to indemnity for
the loss.
7.3. Latent Defects
7.3.1. Notwithstanding after WARRANTY TERM, in case any serious
latent defect(s) or the same or very similar defects occur
frequently or continuously on the same spot or area of
PRODUCTS and MARUBUN recognizes such defects fall in the
category of so called "EPIDEMIC FAILURE" rationally.
7.4. Patent Defects
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7.4.1. A patent defect is defined as a defect that is discernable
upon inspection of the product in the exercise of ordinary
care and prudence.
7.4.2. MARUBUN is deemed to have accepted nonconforming material if
after 45 days fails to (1) perform an incoming inspection of
the material, (2) notify the seller of the nonconformance
and (3) make an effective rejection of the material.
7.5. Exclusion of Warranties
7.5.1. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, PEERLESS DISCLAIMS
ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED
WARRANTIES OR MERCHANTABILITY, TITLE AND FITNESS FOR A
PARTICULAR PURPOSE AND AGAINST INFRINGEMENT. Without
limiting the foregoing, PEERLESS does not warrant that any
of the PRODUCTS that it provides will be error free or
operate without interruption. PEERLESS does not make, and
hereby expressly disclaims, any representation or warranty
to any End User or other third party. MARUBUN shall not have
the right to make or pass though, and shall take all
measures necessary to insure that neither it nor any of its
agents or employees attempt to make or pass through, any
such representation or warranty on behalf of PEERLESS.
8. Product Liability Indemnification
8.1. Damages
8.1.1. PEERLESS agrees, at its expense, to protect, indemnify and
hold MARUBUN or its customers harmless from and against all
liability resulting from any and all claims by third parties
for loss, damage or injury (including death) allegedly
caused by any PRODUCTS supplied by PEERLESS under this
Agreement, by reason of any defect in design, material,
workmanship or warning, to the extent not caused by misuse,
abuse or other fault directly attributable to MARUBUN or its
customers and provided that PEERLESS is notified by MARUBUN
of all such claims within a reasonable period of time
following MARUBUN's initial notification of such claims, and
provided that PEERLESS is given full control over any
negotiation, arbitration, or litigation concerning such
claims. The provisions of his Section 8 shall survive the
term and any termination of this Agreement.
8.1.2. Except as for payments pursuant to PAYMENT above, in no
event or circumstances shall each party's total liability
under this Agreement to the other party for damages however
denominated, attorneys fees and costs from a judgment
arising out of any and all actions and proceedings brought
by either party against the other party for any cause of
action sounding in tort, contract or otherwise, exceed the
lesser of the amounts actually paid by MARUBUN to PEERLESS
during the twelve months prior to the event sued upon or
five hundred thousand dollars ($500,000.00).
8.1.3. IN NO EVENT SHALL PEERLESS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING,
WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOST PROFITS OR
LOSS OF DATA OR INFORMATION OF ANY KIND, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT PEERLESS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9. Intellectual Property
9.1. Rights
9.1.1. Execution of this Agreement does not signify that MARUBUN is
given any right with regard to Intellectual Property and/or
technical information concerning PRODUCTS as patents,
registered designs, trade xxxx, trade dress, copy right or
know-how which are possessed or will be possessed by
PEERLESS. It is further agreed that all such Intellectual
Property and/or technical information concerning PRODUCTS as
patents, registered designs, trade xxxx, trade dress, copy
right or know-how is the sole property of PEERLESS and
MARUBUN shall claim no such rights in any form or structure
now or in the future.
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9.1.2. MARUBUN shall have the right at no additional charge to use
and/or reproduce PEERLESS's applicable Non-Confidential
literature such as operating and maintenance manuals,
technical publication, prints, drawing, training manuals and
other similar supporting documentation and sales literature.
9.1.3. MARUBUN agrees not to decompile, disassemble or otherwise
attempt to reverse engineer any PRODUCTS provided in
firmware form.
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9.2. Indemnification
9.2.1. PEERLESS shall indemnify MARUBUN and hold it harmless from
any liabilities to any third parties, in the United States
and the several countries set out in Attachment A attached
hereto, as finally awarded by a court of competent
jurisdiction, arising out of, and any costs and expenses of
defending or settling, any claim that any Current Release,
Update Release or any part thereof infringes any copyright,
patent or trade secret existing or issued as of the date of
this Agreement. MARUBUN shall notify PEERLESS in writing of
any such claim promptly after MARUBUN first learns thereof,
shall tender sole control of the defense and settlement of
such claim to PEERLESS, and shall provide PEERLESS with such
reasonable assistance and cooperation as PEERLESS may
reasonably request from time to time in connection with such
defense. In the event of any such claim, PEERLESS, at its
sole discretion may replace at its expense any allegedly
infringing PEERLESS Material with non-infringing software or
other material of equivalent functionality, and MARUBUN
shall thereupon cease all use or distribution of such
PEERLESS material and return all copies thereof to PEERLESS.
None of PEERLESS' obligations under this Section 9 shall
apply in connection with any claim of infringement if
MARUBUN has modified any PEERLESS Material or combined any
such material with or into any other programs, data, device,
component or applications or breached this Agreement and
such infringement would not have occurred without such
modifications, combination or breach. Under no circumstances
will PEERLESS have an obligation to indemnify MARUBUN from
any claims relating to any technology provided by third
parties for which MARUBUN enters into a separate agreement
with such third party for such technology; MARUBUN'S sole
indemnity rights, if any, relating to such third
party technology will be governed under its separate
agreement with the third party. PEERLESS will not be
required to defend and indemnify MARUBUN with respect to
losses and expense finally adjudged to have been caused by
MARUBUN's negligence, gross negligence or willful
misconduct.
10. Termination
10.1. Terminate
10.1.1. Either party may terminate this Agreement at no charge upon
sixty (60) days written notice if:
10.1.1.1. A party breaches any provision of the Agreement and
upon written notification of said breach and failed
to cure the breach within 30 days
10.1.1.2. Any terms of the Agreement violates any law or
regulation of either parties nation or governmental
agency
10.1.1.3. Upon assignment of rights under this Agreement to
any third party without the express and written
consent of the non-assigning party
10.1.2. All outstanding orders shall be deemed canceled upon the
termination of the Agreement. The terms in Paragraph 4.3
herein, remain applicable as set forth in this Agreement.
All monies owed shall become immediately due and payable.
10.1.3. The following Sections of this Agreement shall survive and
remain in effect upon the termination of this Agreement.
11. Confidentiality
11.1. Disclosure
11.1.1. Both PEERLESS and MARUBUN shall not disclose to any third
party any documentation, drawings, technical information
and/or managerial information of disclosing party whether
it's written or not which receiving party has come to know
through this Agreement and/or INDIVIDUAL RELEASE
(hereinafter referred to as "CONFIDENTIAL INFORMATION").
However, MARUBUN may disclose CONFIDENTIAL INFORMATION to a
third party for the purpose of distribution, sale and
service of PRODUCTS as necessary.
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11.1.2. Receiving party shall limit the disclosure of CONFIDENTIAL
INFORMATION to a minimum number of employees who need to
know to fulfill their functions. Receiving party shall
alert such employees not to violate aforementioned secrecy
observance and shall take all responsibility whatever may
happen when said receiving party discloses CONFIDENTIAL
INFORMATION to them.
11.1.3. When this Agreement is terminated, or when requested by
disclosing party, receiving party shall cease to use and
return all the documents concerning CONFIDENTIAL
INFORMATION as soon as possible to said disclosing party.
11.1.4. CONFIDENTIAL INFORMATION shall be kept secret strictly not
only during Validity Term of this Agreement but also even
after the expiration or the termination thereof regardless
of other Articles herein.
11.1.5. Disclosure by laws, regulations or governmental orders
shall not be deemed to constitute a violation hereof.
11.1.6. The obligation herein shall not apply to any information
which:
11.1.6.1. is already in the public domain or becomes
available to the public through no breach of the
Agreement by receiving party.
11.1.6.2. Was the possession of receiving party prior to
receipt from disclosing party.
11.1.6.3. Is received by receiving party independently from a
third party free to disclose such information to
said receiving party.
11.1.6.4. Is subsequently independently developed by
receiving party.
11.1.7. Receiving party shall have the written burden of proving
the existence or availability of any of the exceptions set
out in this Article.
12. Arbitration
12.1. Binding Arbitration
12.1.1. Unless otherwise provided in this Agreement, any
controversy or claim, whether based on tort, contract or
legal theory (including, but not limited to, a claim of
fraud or misrepresentation) arising out of or related to
this Agreement shall be resolved by arbitration pursuant to
this Paragraph and the then current rules and supervision
of the American Arbitration Association as modified herein,
The duty to arbitrate shall extend to any officer,
employee, agent or subsidiary making or defending a claim
that would otherwise be arbitrable.
12.1.2. The arbitration shall be held in Los Angeles, CA before a
single arbitrator who is knowledgeable in the embedded
software industry. The arbitrator must be selected within
14 days after the claim for arbitration is filed. The
arbitrator must hold a preliminary hearing within 14 days
after he or she is selected. Discovery must be conducted
and concluded not later than 90 days after the preliminary
hearing concludes. The arbitration hearing must commence no
later than 30 days after discovery concludes and must
conclude not later than 21 days thereafter. The arbitration
hearing shall run from 8:00 A.M. to 12:00 P.M. and 1:30
P.M. to 4:30 P.M. each day with one morning beak and one
afternoon break not to exceed 15 minutes each and, except
for Sundays and holidays, shall run day-to-day until
concluded. The arbitrator shall render his or her decision
within 10 days after the conclusion of the arbitration
proceeding.
12.1.3. The parties must use reasonable best efforts to meet the
foregoing time schedule, and the arbitrator shall have the
right to impose appropriate sanctions against any party who
fails to comply with the agreed upon time schedule. The
arbitrator shall not have the poser to unilaterally modify
the foregoing time schedule. The parties may stipulate in
writing to modify the agreed upon time schedule subject to
the arbitrator's approval.
12.1.4. The arbitrator's decision and award shall be a final and
binding judgment and may be entered in any court having
jurisdiction. The arbitrator shall not have the power to
award
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punitive or exemplary damages. Issues of arbitrability
shall be determined in accordance with the federal
substantive and procedural laws relating to arbitration:
all other aspects shall be interpreted in accordance with
the laws of the State of California. California Rules of
Evidence shall apply. The arbitrator shall be required to
conform to California case and statutory law. Either party
appeal the arbitrator's decision on any legal
ground(s).
12.1.5. The prevailing party shall be entitled to an award of its
attorneys fees associated with the arbitration and any
other costs and expenses of the arbitration shall be borne
as provided by the rules of the American Arbitration
Association.
12.1.6. If court proceedings to stay litigation or compel
arbitration are necessary, the party who unsuccessfully
opposes such proceedings must pay all associated costs,
expenses and attorneys fees reasonably incurred by the
other party. If any portion of this Section 12 is held to
be unenforceable, it shall be severed and shall not affect
either the duty to arbitrate or any other part of the
Paragraph.
12.1.7. The following disputes shall not be subject to arbitration:
(a) any dispute involving infringement of and title to
PEERLESS' intellectual property; b) any dispute involving
immediate termination of this Agreement; c) any dispute
involving enforcement of the confidentiality provisions set
forth in this Agreement; d) any dispute in which any party
seeks an award of compensatory damages exceeding
$500,000.00; e) any judicial proceeding in equity seeking
temporary retraining orders, preliminary injunctions or
other interlocutory relief; and f) any dispute involving
the provisions in Section 8 herein.
12.1.8. Equitable Relief. It is understood and agreed that one
party's remedies at law for a breach by the other party of
its obligations under may be inadequate. Notwithstanding
any other provisions of this Agreement, the parties shall,
in the event of any such breach, be entitled to equitable
relief by a court of law (including without limitation
injunctive relief and specific performance) without a
requirement to post a bond, in addition to all other
remedies provided under this Agreement or available to the
parties at law or otherwise.
13. Miscellaneous
13.1. Sub-Contracts
13.1.1. The work may be performed, in whole or in part, by third
parties selected by PEERLESS.
13.1.2. In the event of an accident, a strike or the like that may
cause any hindrance to supply PRODUCTS to MARUBUN happens
relating such subcontract, PEERLESS shall inform thereof to
MARUBUN immediately and comply with MARUBUN's instructions.
13.2. Governing Law
13.2.1. This Agreement shall be construed and enforced in accordance
with the laws of the United States of America and the State
of California without giving effect to its conflicts of laws
principles. Any action or proceeding brought by MARUBUN or
PEERLESS against the other arising out of or related to this
Agreement shall be brought in a state or federal court of
competent jurisdiction located in the County of Los Angeles,
State of California, and MARUBUN hereby submits knowingly to
the in personam jurisdiction of such courts for purposes of
any such action or proceeding. The parties agree that the
International Regimes, including but not limited to the
United Nations Convention On Contracts For the International
Sale of Goods, and Supernational Regimes, including but not
limited to NAFTA, shall not apply to this Agreement or the
Addenda thereto.
13.3. Transfer
13.3.1. Neither party shall transfer or give as a security the
rights or obligations stemming from this Agreement or
position herein partly or entirely to any third party(s)
without obtaining the other party's consent in writing in
advance.
13.4 Force Majeure
13.4.1. Neither party hereto shall be liable to the other party for
failure to perform its obligations hereunder due to the
occurrence of any event beyond the reasonable control of
such party and affecting its performance such as including,
without limitation, governmental
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MARUBUN/PEERLESS Supplier/Distribution Agreement
regulations or orders, outbreak of a state of emergency,
acts of God, war, hostilities, civil commotion, riots,
epidemics, fire, strikes, lockout or any other similar cause
or causes (hereinafter referred to as "FORCE MAJEURE").
13.4.2. The party so affected shall make its best efforts to avoid
or remove such causes of non-fulfillment and shall continue
fulfillment hereunder without delay whenever such causes are
removed.
13.5. Trademarks
13.5.1. Nothing in this Agreement grants either party any rights to
use the other party's trademarks or trade names, directly or
indirectly, in connection with any product, prototype,
service, promotion, publication or publicity without prior
written approval of the other party of trademark owner.
13.6. Offsets
13.6.1. In case either PEERLESS or MARUBUN has credit and debt at
the same time to the other party. Such credit may be offset
against the debt with written notice if possible pursuant to
the law.
13.7. Validity Term
13.7.1. Validity Term of this Agreement shall be on (1) year from
and including the date of which the Agreement becomes
effective.
13.7.2. Unless either party proposes a non-extension of this
Agreement to the other party with a prior written notice at
lease three (3) months before the expiration date, this
Agreement shall be extended for another one (1) year
automatically. Any further extension of this Agreement shall
be made upon the said procedure.
13.7.3. The provision of Warranty as stipulated in Section 7 herein,
the provision of Indemnity as stipulated in Paragraph 9.2
herein, a the provision of Validity Term as stipulated in
this Article shall survive the expiration or termination of
this Agreement and the provision of Intellectual Property as
stipulated in Paragraph 9.1 herein, shall survive the
expiration the termination of this Agreement for its own
period and the provision of Secrecy as stipulated in Article
shall survive expiration or termination of this Agreement
for 5 years from the aforementioned expiration termination.
13.7.4. Even when this Agreement expires, any INDIVIDUAL RELEASE, of
which fulfillment date is beyond expiration date shall
survive this Agreement until the date of its final
fulfillment unless otherwise agreed by the parties in
writing.
13.8. Specified Change
13.8.1. MARUBUN may request engineering-change in PRODUCTS and/or
specification-change thereof which need(s) modification on
design of PRODUCTS. PEERLESS shall make its best effort to
meet said request. Both parties shall in good faith
negotiate the cost, delivery date, etc., whichever may occur
therefrom.
13.8.2. PEERLESS shall obtain prior written approval from MARUBUN
before making any change in design, material manufacture
process of PRODUCTS or any other matters that may affect the
specification, quality level and/or reliability of PRODUCTS.
13.9. Offer of Data
13.9.1. PEERLESS, in case requested MARUBUN, shall furnish MARUBUN
with specification. Drawings and other technical data or
PRODUCTS in order to facilitate the use and application of
PRODUCTS by MARUBUN at the expense of PEERLESS, PEERLESS
agrees to advise MARUBUN of any updated information relative
to PRODUCTS with timely notifications in writing. Any such
date furnished by PEERLESS shall be subject to a
Confidential Disclosure Agreement and a site license
negotiated between the parties.
13.10. Notices
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MARUBUN/PEERLESS Supplier/Distribution Agreement
13.10.1. Any notice required or permitted to be given under this
Agreement shall be given in writing (including facsimile and
telephone) and shall be addressed to the nominated address
shown below.
13.11. Modification
13.11.1. A writing duly signed by the authorized representatives of
both parties can only change this Agreement.
13.12. Language
13.12.1. All the communications, documents and/or any records for
mutual understanding with regard to the Agreement and
INDIVIDUAL RELEASE shall be provided in English.
13.13. Duties
13.13.1. Either party shall not assume any role other than stipulated
herein and consequently is not vested with rights and/or
duties stemming from what is not stipulated herein.
13.14. Entirety
13.14.1. This Agreement and the Addenda hereto as well as the Mutual
Confidential Disclosure Agreement between the PEERLESS and
MARUBUN, dated December 14, 1999, as amended, constitute
the exclusive statement of the Agreement between PEERLESS
and MARUBUN concerning the subject matter hereof. All other
prior agreements, arrangements or understandings, oral or
written, relating to the subject matter hereto are merged
into and are superseded by the terms of this Agreement.
Without limiting the foregoing, the pre-printed portions of
a purchase order or any other document submitted by MARUBUN
in connection with an order shall not add to or vary the
terms of this Agreement.
MARUBUN CORPORATION PEERLESS SYSTEMS CORPORATION
By: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------- -------------------------
(Authorized Signature) (Authorized Signature)
Name: Xxxxxxxx Xxxxxx Name: Xxxx X. Xxxxxx
Title: Senior Vice President Title: Director of Business Development
Components & Materials Group
Date: December 14, 1999 Date: December 14, 1999
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ATTACHMENT A
Detailed Pricing Terms
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ATTACHMENT B
Detailed Pricing Terms
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