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EXHIBIT 10.12
RESELLER AGREEMENT
THIS RESELLER AGREEMENT (hereinafter the "Agreement"), is made and entered into
as of the 18th day of September, 1997 by and between T/R SYSTEMS, INC., a
corporation organized and existing under the laws of the State of Georgia, USA
(hereinafter the "Company"), and Mita Industrial Co., LTD., a corporation
organized and existing under the laws of the country of Japan (hereinafter
"Reseller").
WITNESETH:
Whereas, the Company is engaged in the design, development, production and
distribution of Products (as defined below) for printing documents containing
mono and full color text, graphics and images for printed communications; and
Whereas, Reseller desires to be a Company authorized reseller for the purpose
of reselling the specified Products of the Company upon the terms and
conditions set forth in this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants herein
contained and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement:
1.1 "End-User(s)" means Reseller's customers, who shall be the ultimate
end-users of Products.
1.2 "Licensed Software" means software programs, modules, codes and
similar properties and rights, related documentation and manuals,
constituting a portion of the Products and as specified in the
Software License.
1.3 "Price List" means the Company's price list in effect from time to
time in respect of the Products.
1.4 "Product(s)" means any hardware, equipment, Licensed Software,
training courses, consumables, supplies, parts and any associated
services offered by the Company as described in the product
description attached hereto as Attachment A.
1.5 "Proprietary Information" means any information, whether written or
oral, including, without limitation, any technical and/or design
information on the Products, and any information relating to the
present or future business operations, financial condition, plans,
sales, marketing and promotional efforts, customers and price lists of
the Company and its subsidiaries and affiliates disclosing such
information, and all other information of any kind which may
reasonably be deemed confidential or proprietary, including without
limitation this Agreement and its terms.
1.6 "Software License" means the T/R Systems End-User Software License
Agreement, attached hereto as Attachment B.
1.7 "Territory" means the territory specified in Attachment C.
1.8 "Trademark(s)" means any trademark, service xxxx, trade dress or trade
name which the Company may designate, use or adopt from time to time
in connection with the marketing, sale and licensing of the
Product(s).
2. APPOINTMENT AND DUTIES OF RESELLER.
2.1 The Company hereby appoints Reseller, and Reseller hereby accepts
appointment, as a Company reseller of Products to End-Users in the
Territory during the term of this Agreement. The Company reserves, in
its sole discretion, the right to send technical or sales personnel to
any place within the Territory to assist in any sale of, to handle or
conclude any sale of, or other transaction relative to, the Products,
to provide technical assistance, maintenance or support, although in
each case the Company has no obligation to do so.
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The Reseller may appoint dealers to effect sales to End-Users in the
Territory. Such dealers will remain subject to the control of the
Reseller and the Reseller will insure the dealer adherence to the terms
and conditions of this Agreement.
The appointment hereunder is exclusive for a one year term based on the
commitment to purchase the systems contained in Attachment C. Territory
exclusivity is for the products listed in Attachment A and Reseller
print devices marketed in the territory by Reseller. This exclusivity
will not preclude T/R Systems from developing or maintaining business
relationships with other companies located in the territory for
products not marketed by Reseller in the territory.
2.2 In consideration of the Company's grant to Reseller of the limited
rights set forth herein to act as reseller of Products to End-Users in
the Territory. Reseller agrees that during the term hereof, Reseller
shall not in the Territory, directly or indirectly, or in conjunction
with any third party or parties, solicit orders for, distribute, or
sell digital printing systems of any type which are substantially
equivalent to, or competitive with, the Products, or acquire an
interest in any company, corporation, joint venture or other
undertaking which competes with the business of the Company with
respect to the manufacture, production or sale of digital printing
systems which are substantially equivalent to, or competitive with, the
Products.
3. OBLIGATIONS OF RESELLER.
3.1 Reseller shall inform the End-Users of the terms and conditions of the
purchase of the Products and the Licensed Software. The terms and
conditions of the End-User Software License are in Attachment B.
3.2 The Company shall not be a party to any arrangements between Reseller
and its End-Users or in any manner be bound, or have any legal
obligation, in respect thereof. Reseller further agrees that it is not,
nor shall it represent itself to be, the legal or authorized
representative or agent of the Company, nor shall it assume or create
any obligation, warranty or responsibility on behalf of the Company,
unless otherwise agreed upon in writing by the Company.
3.3 Reseller shall use its best efforts to create a market for, to promote,
to maintain a demand for, as well as to establish, an efficient network
within the Territory, in order to obtain maximum sales and
installations of the Products.
3.4 Reseller shall at all times maintain adequate sales and technical
facilities, maintain an adequate number of Products required for
demonstrations and assign competent personnel in sufficient numbers as
may be necessary for the proper performance of its obligations under
this Agreement.
3.5 Reseller shall use its best efforts to promote, at its own expense, the
sale of the Products in the Territory, through advertising, public
relations, trade shows, conventions, direct mail, etc., with the
purpose of achieving the largest possible sales volume for the Products
in the Territory.
3.6 Reseller is responsible for the advertising in the Territory, but the
Company is allowed, although not required, to undertake advertising in
the Territory at its own cost. The Company may also participate in
fairs or exhibitions or undertake other promotional efforts at its own
cost within the Territory and without any obligation to Reseller.
3.7 Reseller will provide advertising plans for the product to the company
for review and approval on a quarterly basis. Reseller shall reasonably
consider any comments or suggestions that the Company may make.
3.8 In all advertising, trade shows, conventions, and other promotions, as
well as in all sales and technical literature, the name of the Company
and the Trademarks shall be evidenced and respected. Reseller shall use
the Trademarks, in their original form and without alteration, unless
otherwise approved in advance in writing by the Company.
3.9 Reseller agrees to purchase minimum quantities as detailed in
Attachment C for the initial term of this agreement. Reseller may not
assume obligation of the minimum quantity commitment if it does not
meet the minimum quantity for reasons caused by Company such as late
delivery, defective Products, or if the Company breaches the Agreement
in any material way and under such circumstances shall reserve their
exclusive right.
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4. ORDERS.
4.1 Reseller shall submit written orders to the Company. All orders shall
specify: (a) the quantities and descriptions of the Products: and (b)
requested delivery dates and shipping instructions. Orders shall be
placed * (*) days in advance of the start of a quarter as specified in
Attachment D.
4.2 Subject to supply therefore, and conformance of the purchase orders
with forms approved therefore from time to time by the Company, the
Company will accept any such purchase order which is not in
contravention of the terms of this Agreement.
4.3 The order procedures for "Spare Parts" are subject to the Spare Parts
ordering policies contained in Attachments E and F.
5. PRICE.
5.1 Provided Reseller complies with all the terms and conditions of this
Agreement, the Company agrees to invoice at the prices and terms of
the Price List in effect on the date the Company receives Reseller's
order.
5.2 Price to Reseller does not include sales, value added or similar
taxes of any nature. Reseller shall pay applicable taxes based on
Reseller's net price as invoiced by the Company or supply appropriate
tax exemption certificates in a form satisfactory to the Company.
5.3 The Company and Reseller will discuss the Price List on a quarterly
basis. Reductions shall become effective immediately upon general
announcement by the Company and apply to all orders which have not
been confirmed by the Company prior to such announcement date. If the
price is increased, the Company will invoice orders received less
than * (*) days after the increase at the previous pricing/discount
level.
6. PAYMENT AND DELIVERY TERMS.
6.1 Prices are based on delivery FOB US Port (ie, Savannah, Georgia or
comparable)
6.2 Reseller shall pay for the Products, or cause such payment to be made
on its behalf, within * (*) days after the xxxx of lading date. For
invoices paid within 10 days of the xxxx of lading date, a 1% (one
percent) early payment discount may be taken. Any late payments shall
accrue interest, which shall be immediately due and payable, at a per
annum rate of eighteen percent (18%) (but in no event higher than the
maximum lawful rate therefor). The Company shall be entitled to be
reimbursed by Reseller for all costs of collection of any sums due
hereunder, including attorneys' fees and expenses.
6.3 All risk of loss shall be conveyed to and pass to Reseller upon
delivery of the Products to Reseller or its carrier or other agent.
Reseller hereby grants unto the Company a security interest in and to
all Products sold to Reseller for which payment in full has not been
made, which security interest shall secure the payment of all sums
due the Company by Reseller hereunder.
6.4 Until any amount not paid to the Company at the due date has been
paid in full, the Company shall have the right of rescission and
stoppage in transit, the right to postpone further shipments to
Reseller, as well as the right to terminate the present Agreement
with immediate effect. All such rights of the Company being in
addition to all security arrangements and other rights permitted by
law or by this Agreement. Reseller is not entitled to withhold
payment on account of pending appeals to warranty.
7. PATENT AND COPYRIGHT INDEMNITY.
7.1 If timely and promptly notified in writing of any action (and all
prior claims relating to such action) brought against Reseller, based
on a claim that Reseller's use of the Products infringes a patent or
copyright, the Company shall defend such action at its expense and
pay the costs and damages awarded in any such action, provided that
the Company shall have sole control of the defense of any such action
and all negotiations for its settlement or compromise. At any time
during the course of any litigation rising out of a claim of
infringement of a patent or copyright, or if in the Company's
opinion, the Products are likely to become the subject of a claim of
infringement of a patent or copyright, the Company will, at its
option and at its expense, either procure for Reseller the right to
continue using the Product, replace or modify the same so that it
becomes non-infringing, or grant Reseller a credit for the Product
then held by Reseller as
* Confidential information has been omitted and filed separately with the
Commission.
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depreciated and accept its return. The depreciation will be an equal
amount per year over the lifetime of the Product as established by
the Company. The Company will not have any liability to Reseller
under any provision of this Section 7.1 for any claim for patent or
copyright infringement whereby the Products were modified or
otherwise altered in contravention of Section 8.1 hereof or where the
apparatus or process, which is the subject of the claim, consists of,
or is practiced using, a combination of the Products with equipment
not made or not sold by the Company or which does not bear one or more
of the Trademarks.
7.2 The foregoing states the entire liability of the Company with respect
to infringement of patents or copyrights by the Products, or any part
thereof, or by their operation. No costs or expenses will be incurred
by the Company without the prior written consent of the Company.
7.3 There shall be no grant of implied copyright, patent or other
intellectual property rights made pursuant to this Agreement.
8. RIGHTS, SERVICES, AND OBLIGATIONS OF THE COMPANY.
8.1 The Company reserves the right to modify the characteristics of the
Products. Reseller shall be advised by the Company of any significant
changes in Product specifications. Reseller may not modify,
supplement, improve or in any way alter or combine with other
products, the Products.
8.2 The Company shall provide Reseller with documents and system
documentation, which shall remain the property of the Company.
Reseller shall be responsible for costs of duplicating, translating
and printing of all documentation. Such documents and system
documentation may be in written form or transmitted by tape, diskette
or other software media, as determined by the Company.
8.3 The Company shall provide Reseller with all pertinent technical and
sales information as normally provided to the Company's customers.
The Company shall inform Reseller on a regular basis about the
evolution of Products and application area, trends, and competition
in the market.
8.4 The Company shall provide Reseller, free of charge, two training
sessions of approximately four days in duration each at a Reseller
location. Reseller shall be responsible for all travel, lodging, and
all other costs and out-of-pocket expenses for the Company's training
personnel. Additional training will also be provided at a Company
location at the training class prices in effect at that time less
*%. The Company will provide additional on site training at the
Company's then standard daily training rates less *% plus applicable
travel and living expenses. The Reseller is responsible for providing
adequate facilities and equipment for on site training. Training and
consulting rates are specified in Attachment G.
8.5 The Product(s) will contain the Company's standard Trademarks and
identification. With prior consent of the Company, which will not be
unreasonably withheld, the Reseller may add its proprietary
Trademarks identifying it as the distributor. Reseller may use the
Company's Trademarks in connection with the Products and for related
advertisement.
8.6 The Company agrees to develop the Japanese version of the Product with
cooperation of Reseller. Once developed the Japanese version of the
Product will be subject to inspection as agreed by the parties. Such
inspection will include appropriate testing. The Company will perform
the initial testing and provide a report which will be subject to the
Resellers approval. Compensation for the development of the Japanese
version is $*, payable by Reseller $* on August 28, 1997 and $* within
30 days after Reseller's approval of the Japanese version of the
product.
9. LICENSED PRODUCTS.
9.1 All software provided pursuant to this Agreement is intended to be
licensed by the Company directly to and for the benefit of the
End-Users, pursuant to the terms of the Software License. The Reseller
must notify the End-User, as per section 3.1 above, that the purchase
of the system is contingent upon End-User acceptance of the terms of
the Software License. The Reseller shall also be bound by the Software
License, as a licensee, for the purpose only of using the Software to
fulfill its obligations hereunder in respect of demonstration, sales,
installation, support and maintenance. When used in reference to
Software, the words "purchase", "sale", or similar or derivative words
are understood to mean "license", and "Reseller" or "End-User" or
similar derivative words used in connection therewith are to be
understood to mean "Licensee." Title to the Products constituting
Licensed Software shall remain with the Company, and the transfer of
title to Reseller of purchased hardware and/or equipment constituting
the Products will not include a sale of, or transfer of title to, any
Licensed Software, notwithstanding general references to "sale" of
"Products" or any other part of this Agreement susceptible to contrary
construction or implication.
* Confidential information has been omitted and filed separately with the
Commission.
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9.2 Reseller may use the Licensed Software provided under this Agreement
only in accordance with the restrictions of the Software License and
provisions of this Agreement. This Agreement does not give Reseller
any right to make use of the Licensed Software for its own purposes.
9.3 Reseller shall include as one of its conditions of under which it
offers to sell Products to End-Users, the Software License. Reseller
shall have the responsibility of securing such acknowledgment from
its End-Users.
9.4 For each unit of equipment which utilizes the Licensed Software or
any portion thereof, Reseller may furnish only one copy of the
Licensed Software for use only with that unit.
9.5 The Company may offer End-Users additional Products and Product
upgrades to the Licensed Software. These Software Products and
Product upgrades will be listed and priced in the Reseller Product
price sheets.
10. INSTALLATION, END-USER TRAINING AND MAINTENANCE.
10.1 Reseller is responsible for proper installation in its End-User's
facility and all necessary education and training of the End-User in
the use of the Product.
10.2 Reseller shall provide the End-User with all necessary or requested
maintenance and support in respect of the Products. Such support
shall include without limitation, remedial telephone support.
Application software support shall also be the responsibility of
Reseller. The Company may, but is not required to, offer as an
additional product offering, training, maintenance and support
services to the End-Users. These services will be listed and priced
in the Reseller Product price sheets.
11. WARRANTY.
11.1 The Company warrants to Reseller only that the hardware and equipment
with the exception of PrintStations and MicroScanners sold to Reseller
pursuant to this Agreement will be free of material defects for a
period of * (*) days, unless specifically stated differently, from
initial delivery. Should any defect in workmanship or material appear
within * (*) days, unless specifically stated differently, after
initial date of delivery, the Company will (upon written notification
thereof, delivered during the warranty period, and substantiation by
Reseller that the hardware and equipment have been stored, installed,
maintained and operated in accordance with the Company's requirements
and standard industry practice, and that the defect(s) have not arisen
from unauthorized repair, modification, or improper connection by
mechanical or electrical means to any other piece of equipment or
device) correct such defect(s) by suitable repair or replacement at
the Company's facilities, or at the place of business of the Company's
designated local representative, or at Reseller's place of business,
at the Company's option. The Company warrants to Reseller only that
the PrintStations and MicroScanners sold to Reseller pursuant to this
Agreement will be free of material defects for a period of * (*) days,
unless specifically stated differently, from initial delivery.
All returns to the Company or its representative must be
pre-authorized in writing and shipped prepaid. The Company assumes no
risk of loss or damage prior to acceptance of delivery. Return
shipment will not be prepaid by the Company if inspection fails to
disclose a warranted defect. It is agreed between the parties that
the foregoing shall be Reseller's exclusive remedy for warranted
defects.
The sole purpose of this exclusive remedy shall be to provide
Reseller with free repair and replacement of the defective parts in
the manner provided herein, and the hardware and equipment shall not
be deemed to have failed of its essential purpose so long as the
Company is willing and able to repair or replace defective parts in
the described manner.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF (AND THE COMPANY DISCLAIMS)
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR
OTHER WARRANTY OF QUALITY OR PERFORMANCE, WHETHER EXPRESSED OR
IMPLIED.
Correction of non-conformities, in the manner and for the time period
provided above, shall constitute fulfillment of all liabilities of
the Company to Reseller with respect to, or arising out of, the goods
or their use, whether based on contract, negligence, strict liability
or otherwise. Reseller shall be fully responsible for any warranty
claims, expressed or implied, brought by its End-Users, and shall
hold the Company harmless with regard to same.
* Confidential information has been omitted and filed separately with the
Commission.
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11.2 The Company makes no warranties with regard to the Licensed Software,
other than the warranties offered in the Software License, including
all warranties of merchantability and fitness for a particular
purpose. Except as therein expressly provided, such software is
provided to Reseller on an "as-is" basis.
11.3 Product Liability
(a) When Company or Reseller becomes aware that there occurred or
there is a possibility to occur any injury to or death of any
third party or damage to property of any third party arising out
of or in connection with the Product (hereinafter referred to as
'Accident'), it shall immediately notify the other party thereof
and both parties shall discuss and solve the problem together.
(b) In the event that any claims are raised to Reseller or its
clients in connection with the Accident, Reseller shall
immediately notify Company thereof and Company shall settle the
claims at its own responsibility and cost with Resellers
reasonable assistance.
(c) In the event that any law suits are raised against Reseller or
its clients in connection with the Accident, Reseller shall
conduct the defense and Company shall bear any costs and
expenses including attorney's fees incurred by Reseller provided
that Company is given control over its defense or settlement.
(d) Notwithstanding the Article 11.3(a) through 11.3(c), Company
shall have no liability for any Accident; arising from Company's
compliance with Reseller's direction without fault of Company,
or resulting from remodeling or modification made to the Product
by Reseller or its clients or resulting from noncompliance by
Reseller or its clients of conditions specifically instructed by
Company in the form of documents such as instructions, catalogs,
and specifications.
(e) If the Accident is caused by joint reasons of the defect in the
Product and Reseller's fault both parties discuss and determine
the cost and expense to be born by each party.
12. LIMITATION OF REMEDIES.
12.1 THE SOLE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE
REMEDIES FOR THE COMPANY'S LIABILITY OF ANY KIND FOR SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT AND ANY OTHER PERFORMANCE BY THE
COMPANY UNDER OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THIS
AGREEMENT AND THE ATTACHMENTS HERETO. IN NO EVENT SHALL THE COMPANY'S
LIABILITY TO RESELLER FOR DAMAGES OF ANY NATURE EXCEED THE TOTAL
CHARGES PAID FOR THE PRODUCTS OR SERVICE UPON WHICH SUCH LIABILITY IS
BASED.
12.2 RESELLER AGREES THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF
PROFIT, REVENUE, PRODUCTS OR SERVICES EVEN IF THE COMPANY SHALL HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE AND
ACKNOWLEDGES THAT THE PRICES CHARGED RESELLER HEREIN CONTEMPLATE THE
FOREGOING ALLOCATION OF RISKS. RESELLER IS SOLELY RESPONSIBLE FOR THE
PROTECTION AND BACKUP OF ALL PRODUCTS, SOFTWARE AND SERVICES.
12.3 Reseller agrees that the Company shall not have any responsibility
for any equipment, service, hardware, software or other items
provided with or incorporated into the Product(s) by any persons
other than the Company.
12.4 No action, whether in contract or tort, including negligence, arising
out of the sale of the Products or the performance of services under
this Agreement may be brought by the Company or Reseller more than
twelve (12) months after the cause of action arises, except for an
action by the Company for non-payment by Reseller.
13. DURATION AND TERMINATION OF THE AGREEMENT.
13.1 This Agreement shall be effective on the date of this Agreement and
valid for an initial term of * (*) * from the completion of the
Japanese version of the Products as set forth in section 8.6. If not
terminated by notice by either party at least sixty (60) days prior
to the end of the initial term hereof or any renewal term, the
Agreement will be automatically renewed for successive one (1) year
terms, upon the end of the initial term and each subsequent term
thereafter. The parties hereto shall mutually agree on the Minimum
Target
* Confidential information has been omitted and filed separately with the
Commission.
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Amount for each renewal term prior to the commencement of such renewal term, and
should the parties fail to agree on same, which each may do in its sole
discretion, such renewal term shall not commence and this Agreement shall be
deemed to have been terminated as of the end of the then current term. If the
Company and Reseller do not mutually agree to extend this agreement beyond the
initial * (*) * term, the Company will refund $* of the original $* language
translation fee paid by the Reseller.
13.2 Either party may, without incurring any liability to the other
party, unilaterally and with immediate effect terminate this Agreement at any
time, by a written notice sent to the other party, in the event that:
(a) The other party fails, for any reasons whatsoever, to perform any
of its obligations under this Agreement and fails to remedy such default
within thirty (30) days after the mailing of written notice of default
and request for cure;
(b) The other party becomes subject as a result of changes in
ownership, control or management of its business, or as a result of
disputes or controversies of any nature whatever, to influence or
difficulties which may adversely affect the performance of this
Agreement;
(c) The other party becomes insolvent, files or is subjected to the
filing of judicial process under any law relating to bankruptcy or
insolvency, consents to a receivership, adopts an arrangement with
creditors, is dissolved, enters into liquidation, or ceases doing
business;
(d) The other party initiates reorganization proceedings or takes any
steps towards liquidation; or
(e) Reseller uses the name of the Company, or any form thereof, as a
corporate name for doing business, or trade name or otherwise, or
otherwise misuses the Company's Trademarks, without the prior written
consent of the Company.
14. EFFECT OF TERMINATION.
Upon expiration or termination of this Agreement:
(a) The Company may stop accepting any orders from Reseller;
(b) Reseller shall immediately (i) pay to the Company all amounts
remaining due under any contract or purchase order, (ii) remove from
Reseller's premises all signs advertising the Products or the
Trademarks, (iii) cease to engage in advertising or promotional
activities concerning the Products and the use of Trademarks, (iv) cease
to represent in any manner that Reseller has been designated by the
Company to license the Licensed Software and (v) order and promptly pay
for the remaining balance (order requirements specified in Attachment C
less systems ordered to date during the current term of the agreement)
of systems contained in Attachment C.
(c) Neither party shall, in connection with the expiration and/or
termination of this Agreement, have the right to claim any indemnity,
reimbursement or compensation for alleged loss of clientele, goodwill,
loss of profits on anticipated sales or the like or have any other
liability for losses or damages resulting from the expiration or
termination. Each party acknowledges that it has decided and will decide
on all investments, expenditures and commitments in full awareness of
the possibility of its potential losses or damages resulting from such
expiration or termination and being willing to bear the risk therefor;
and
(d) If after the expiration or termination of this Agreement, Reseller
places orders and the Company accepts such orders by Reseller for
Products thereof at the prices and terms prevailing under this Agreement
or any other prices and terms, such acts on the part of the Company
shall be fully gratuitous and shall not obligate the Company to continue
any practice or course of trade not secured by written obligation. Any
such Company sales shall not renew this Agreement or waive its
expiration or termination.
(e) The Company shall make available to Reseller the spare parts or
equivalent replacements during the term of this Agreement and for a
minimum of seven years from the earlier of the date of termination of
this Agreement, the date of discontinuance of the item or the Product or
from delivery of the last unit of equipment hereunder.
15. PROTECTION OF PROPRIETARY INFORMATION, ETC.
15.1 Reseller agrees to maintain in confidence and not to copy,
reproduce, distribute or disclose to any third
* Confidential information has been omitted and filed separately with the
Commission.
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party, without the prior written approval of the Company, any
Proprietary Information.
15.2 All sales of the Products (inclusive of license of the Software) to
Reseller are of the material and tangible Products only: therefore,
as such, do not include the sale or license of the design of the
Products (and source and other codes of Software) which are the
proprietary property of the Company. To the extent any of such
proprietary property is made available by Company to Reseller, it is
done so on a confidential basis. Reseller will neither disclose
circuitry design details or principles, or software codes, nor copy
them for purposes of manufacture, nor attempt to reverse-engineer or
otherwise alter the Products for any purpose whatsoever. Reseller
shall convey the substance of the foregoing conditions in the terms
of sale of the Products to its End-Users.
15.3 With respect to proprietary information relating to Reseller's
business which is made available to the Company by Reseller to allow
the Company to perform its obligations under this Agreement, the
Company will instruct its personnel to keep such information
confidential by using the same care and discretion that they use with
similar data which the Company designates as confidential. However,
the Company shall not be required to keep confidential any data which
is or becomes publicly available, is already in the Company's
possession, is independently developed by the Company outside the
scope of this Agreement, or is rightfully obtained from third
parties. In addition, the Company shall not be required to keep
confidential and may use for the Company's benefit any ideas,
concepts, know-how, or techniques relating to the Company's Products
submitted to the Company or developed during the term of this
Agreement by Company personnel or jointly by Company and Reseller
personnel.
15.4 Reseller agrees that from the date hereof through the termination of
this Agreement, and for a period of two (2) years thereafter, it will
not hire, solicit, take away or attempt to hire, solicit, take away,
any person who is an employee of the Company or who was such an
employee during the six (6) month period immediately preceding the
date of such termination.
15.5 The obligations of the parties under this Section 15 shall survive
the expiration or termination of this Agreement, for whatever
reason, and shall be binding on the parties, their successors and
assigns.
15.6 The parties acknowledge that the obligations and promises under this
Section 15 are of a special, unique character which gives them
particular value, and that a breach thereof could result in
irreparable and continuing damage for which there can be no
reasonable or adequate damages, remedy or compensation in an action
of law. The Company and Reseller expressly agree that each shall be
entitled to injunctive relief, a decree for specific performance
and/or other equitable relief in the event of any breach, or
threatened breach by the other of its obligations or promises under
this Section 15, in addition to any other rights or remedies which it
may possess (including monetary damages, if appropriate).
16. GENERAL.
16.1 This Agreement shall be interpreted and its effect shall be determined
in accordance with the laws of the State of Georgia, USA, excluding
its statutes and decisions regarding choice of, or determination of,
applicable law.
16.2 Any and all disputes arising under this Agreement shall be amicably
and promptly settled upon consultation between the parties hereto,
but in case of failure to reach such settlement, all disputes that
may arise under or in relation to this Agreement shall be submitted
to arbitration (a) under the Commercial Arbitration Rules of the
International Chamber of Commerce if the arbitration is to be held in
New York, New York or (b) under the Commercial Arbitration Rules of
the Japan Commercial Arbitration Association if the arbitration is to
be held in Japan. If the place of arbitration is not so designated by
the parties or is not agreed by the parties within 28 days from the
date on which a demand for arbitration is received by either of the
Associations from either party, the place of arbitration shall be the
country of the respondents. Provided that both Associations may
agree, on the application of either party to either of the
Associations, that the place of arbitration shall be the country of
the claimants, such agreement between the Associations being binding
upon both parties. Failing such agreement between the Association
within 28 days from the date of the said application, the place of
arbitration shall be the country of the respondents. The cost of
arbitration shall be borne equally by the parties. Any award of the
arbitration shall be final and binding upon the parties.
16.3 All notices and demands of any kind which either party may require or
desire to serve upon the other shall be in writing or by facsimile,
and shall be delivered by personal service or by mail at the address
of the receiving party set forth below (or at such different addresses
as may be designated by such party by written notice to the other
party). Such notice shall be deemed received on the earlier of (i) the
date when
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actually received or (ii) in the case of mailing, five (5) business
days after being deposited in the United States mail, postage prepaid,
registered or certified return receipt requested and properly
addressed, or (iii) if by facsimile, when the sending party shall have
received a facsimile confirmation that the message has been received
by the receiving party's facsimile machine. If notice is sent by
facsimile, a confirmed copy of such facsimile shall be sent by mail to
each address.
The address and facsimile numbers of the parties for the purpose of
this Agreement are as follows:
T/R Systems, Inc.
---------------------------------------------
0000 Xxxxxxxxx Xxxxx
---------------------------------------------
Suite 200
---------------------------------------------
Xxxxxxxx, XX 00000-0000
---------------------------------------------
Facsimile (000) 000-0000 Facsimile: ( )
-----------------------------------
Attention: President Attention:
-----------------------------------
16.4 Any provision of this Agreement held to be invalid under applicable
law shall not render this Agreement invalid as a whole, and in such
event, such provision shall be interpreted so as to best accomplish
the intent of the parties within the limits of applicable law.
16.5 The Company or Reseller shall have no liability for failure to perform
in accordance herewith when such failure results from failure or
delays in supply, shortage in parts or components, labor difficulties,
acts of God, regulation or acts of civil, governmental or military
authority, delays in transport, and other and like causes, including
causes beyond the control or the direction of such party.
16.6 Neither party may assign its rights or delegate its duties or
obligations under this Agreement without prior written consent. Any
attempt to do so is void. In case of changes in ownership, control or
management of its business, each party shall notify the other party
thereof beforehand. This agreement shall be binding on the parties,
their successors and assigns.
16.7 A valid contract binding upon the Company and Reseller comes into
being upon execution of this Agreement by duly authorized
representatives of the Company and Reseller.
This Agreement contains the exclusive terms and conditions between the
parties hereto with respect to the subject matter hereof and, does not
operate as an acceptance of any conflicting or additional terms and
provisions of Reseller's purchase orders or any other instruments,
which shall not be deemed to alter the terms hereof, even if signed by
officials or employees of the Company inadvertently or as an
accounting convenience to Reseller. The terms and conditions specified
herein shall exclusively prevail notwithstanding any variance with the
terms and conditions of any order submitted by Reseller for the
Products sold pursuant to this Agreement. Amendments to this Agreement
may be effected only in writing, when signed by the parties hereto
specially stating it is intended to amend this Agreement.
IN WITNESS WHEREOF the Company and Reseller hereby have duly executed this
Reseller Agreement in duplicate on the dates indicated hereon.
Made in duplicate in Norcross, Georgia, USA
T/R SYSTEMS, INC. Reseller: Mita Industrial Co., Ltd.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Yoshimoro Mita
------------------------------ ----------------------------------
Print Name: Xxxx Xxxxxxxxx Print Name: Yoshimoro Mita
------------------------ ----------------------------
Title: President and CEO Title: President
---------------------------- -------------------------------
Date: 9-18-97 Date: 9-18-97
---------------------------- -------------------------------
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FIRST ADDENDUM TO RESELLER AGREEMENT
This First Addendum to the Reseller Agreement dated September 18, 1997
("hereinafter the "Agreement") is made and entered into as of the ___ day of
March, 1998 by and between T/R Systems, Inc., a corporation organized and
existing under the laws of the State of Georgia, USA (hereinafter the "Company")
and Mita Industrial Co., Ltd., a corporation organized and existing under the
laws of the country of Japan (hereinafter "Reseller").
W I T N E S S E T H:
WHEREAS, the Reseller has been appointed by the Company as an
authorized reseller for the purpose of selling Products pursuant to the
Agreement;
WHEREAS, the Reseller desires to obtain additional rights whereby
pursuant to the Agreement as supplemented by this Addendum:
(i) the Reseller would purchase from the Company certain
hardware components, and certain media which would
contain the Company's proprietary software related
to or incorporated in the Products which software is
described with further specificity in the Agreement
(such software herein referred to as the "T/R
Software") (such hardware components and media to be
so purchased herein referred to as the "Addendum
Deliverables");
(ii) the Reseller would be granted from the Company the
right to use (A) the T/R Software and (B) the
Company's "MicroPress(R)" trademark (collectively,
the "Addendum Permitted Use Property"), although no
ownership rights in or to the Addendum Permitted Use
Property are to be conveyed; and
(iii) the Reseller would assemble and configure certain
hardware components and servers including printers
and other equipment that Reseller would supply or
otherwise obtain, in conjunction with the Addendum
Deliverables and the Addendum Permitted Use Property
to create a MicroPress(R) printing system (herein
the "Mita Assembled Systems") to be distributed and
sold by Mita in accordance with the terms of the
Agreement;
WHEREAS, the Company desires to sell Addendum Deliverables to
Reseller, and grant to Reseller a right to use (although no ownership rights in
or to) the Addendum Permitted Use Property, to assemble and configure, and
distribute and sell, the Mita Assembled Systems;
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NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other valuable consideration, the receipt of which are
hereby acknowledged, the parties hereto agree as follows:
1. All capitalized terms herein unless defined in this Addendum
shall have the meanings assigned to same in the Agreement.
2. Subject to the terms and conditions of the Agreement, as
modified by this Addendum, Company hereby grants to Reseller
the exclusive right to use (although no ownership rights in
or to) the Addendum Permitted Use Property to assemble and
configure the Mita Assembled Systems, and to use the Addendum
Permitted Use Property in connection with the distribution,
marketing and sale of the Mita Assembled Systems in the
Territory during the term of the Agreement. Reseller will
have the right to grant unto End-Users the right to use
(although no ownership rights in or to) the T/R Software
connection with the distribution and sale of the Mita
Assembled Systems, provided all agreements in respect of the
granting of such rights are in conformance with the
provisions of Section 9 of the Agreement. The right to use
provided for herein shall be exclusive as to the Territory
for so long as the appointment of the Reseller pursuant to
the Agreement remains exclusive as to the Territory. Other
than the limited right to grant rights to use the T/R
Software pursuant to the immediately preceding sentence, the
rights granted herein are not assignable or transferable, nor
may they be granted to any other party.
3. Pursuant to the terms and conditions of the Agreement,
Reseller will purchase the Addendum Deliverables for use in
Mita Assembled Systems from the Company, for the prices, and
shall pay the amount for media in respect of the Addendum
Permitted Use Property, as indicated on the Price List.
4. Reseller shall only assemble and configure the Mita Assembled
System using, in addition to the Addendum Deliverables,
hardware, printers and other equipment and components that
have been tested and approved by the Company. It is
understood that Reseller may not assemble the Mita Assembled
System using server components not presently in use or
certified by the Company. The Company will perform the
appropriate testing and approval before distribution may
occur. A current component list is attached as Exhibit "A" to
this Addendum.
5. Except to the extent otherwise provided for herein, or unless
the context indicates otherwise, all provisions in the
Agreement relating to the purchase and sale of Products and
the granting of the right to use the T/R Software shall apply
to the purchase and sale of Addendum Deliverables and the
granting of the right to use the Addendum Permitted Use
Property under this Addendum, including without limitation,
the Obligations of the Reseller in Section 3 of the Agreement
to the extent applicable; the provisions governing Orders,
Price, and Payment and Delivery Terms in Sections 4, 5 and 6;
the Patent and Copyright Indemnity and Warranty in Sections 7
and 11, without application, however, to hardware, printer or
other components or equipment not supplied by the Company,
and subject to the Limitation of Remedies in Section 12; and
provisions governing Protection of Proprietary Information in
Section 16. The term of this Addendum shall be co-
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extensive with the term of the Agreement and subject to the
termination provisions of the Agreement.
6. Other than specifically provided for herein, this Addendum
shall not modify or amend or otherwise alter, or constitute
any waiver of any rights or remedies under, the Agreement.
IN WITNESS WHEREOF, the Company and Reseller hereby have duly executed
this Reseller Agreement in duplicate on the dates indicated hereon.
Made in duplicate in Norcross, Georgia, USA
T/R SYSTEMS, INC. MITA INDUSTRIAL CO., LTD.
By: /s/ By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- ------------------------------
Print Name: Xxxx X. Xxxxxxx Print Name: Xxxxxx Xxxxxxxx
------------------------ ----------------------
Title: Vice President and Chief Title: Trustee
Financial Officer ---------------------------
-----------------------------
Date: Aug. 21, 1998 Date: Sept. 17, 1998
----------------------------- ---------------------------
