DISTRIBUTOR AGREEMENT
THIS DISTRIBUTOR AGREEMENT is made and entered on this 15th day of June, 2000,
by and between Amiable Technologies, Inc., doing business as Scanvec Amiable, a
Pennsylvania corporation and Mutoh Industries Ltd. (herein referred to as
"DISTRIBUTOR").
RECITALS
A. Amiable Technologies, Inc. is the sole developer and manufacturer of all
products specified in this agreement. Amiable Technologies, Inc. desires
to develop and establish markets for its products worldwide.
B. DISTRIBUTOR has an established sales organization and desires to purchase
Amiable Technologies, Inc. products covered by this agreement for resale
and will commit to substantial efforts and resources to the market
development and sales of Amiable Technologies, Inc. products.
AGREEMENT
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Appointment of DISTRIBUTOR Amiable Technologies, Inc. hereby appoints
"Mutoh Industries, Ltd." a DISTRIBUTOR of products covered under this
agreement, subject to the limitations and restrictions set forth in this
agreement. DISTRIBUTOR is an independent business entity doing business on
its own account, and is not an agent or legal representative of Amiable
Technologies, Inc. for any purpose. DISTRIBUTOR shall have no authority to
create or assume liabilities, expressed or implied, on behalf of Amiable
Technologies, Inc.
2. Products The Products that may be purchased by DISTRIBUTOR for resale
under this agreement (herein referred to as COVERED PRODUCTS") are listed
in Schedule I attached to this agreement. Amiable Technologies, Inc.
specifically reserves the right to exclude any of its products from this
agreement, unless they appear in Schedule I.
3. Market and Territory The DISTRIBUTOR may only sell COVERED PRODUCTS under
this agreement within Japan (herein referred to as "TERRITORY").
4. Obligation of DISTRIBUTOR The DISTRIBUTOR shall use its best efforts to
sell and promote the sale of COVERED PRODUCTS in the TERRITORY and shall
use its best efforts to achieve certain sale goals to be established from
time to time by Amiable Technologies, Inc. As part of such efforts,
DISTRIBUTOR agrees to the following:
(a) Amiable Technologies, Inc. will sell [information redacted]##
Not-For-Resale (NFR) demonstration units of COVERED PRODUCTS to the
DISTRIBUTOR at a special price of [information redacted]## for each
computer platform type (Macintosh or IBM-compatible) the DISTRIBUTOR
intends to resell. Demonstration units are not for resale and cannot
be resold to end users at any time for any reason. The DISTRIBUTOR
agrees to keep all demonstration units in good operational condition
and available for demonstrations to customers at the DISTRIBUTOR
business site at all times for as long as this contract is in
effect.
(b) The DISTRIBUTOR also agrees to purchase COVERED PRODUCTS in
accordance to the prices specified in Schedule I.
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## The information contained in this portion of the agreement has been omitted
and filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
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DISTRIBUTOR AGREEMENT 1
(c) The DISTRIBUTOR also agrees to send at least one representative to
an Amiable Technologies, Inc. office for complete system training.
If Amiable Technologies, Inc. concludes the DISTRIBUTOR is capable
of representing COVERED PRODUCTS without comprehensive training,
this requirement may be waived by Amiable.
(d) The DISTRIBUTOR will diligently and fairly represent and promote
COVERED PRODUCTS, and use its best efforts to sell the products. The
DISTRIBUTOR agrees to promptly pursue any potential buyers of the
Covered Products suggested to the DISTRIBUTOR by Amiable
Technologies, Inc. It being understood that Amiable is under no
obligation to provide any such referrals. If Amiable Technologies,
Inc. determines, in its sole judgment, that the DISTRIBUTOR failed
to observe these obligations, Amiable Technologies, Inc. reserves
the right to terminate this agreement immediately.
(e) The DISTRIBUTOR agrees to provide service and support to the
reseller at a level set by Amiable Technologies. Inc.
(f) The DISTRIBUTOR shall process all reseller orders promptly.
(h) The DISTRIBUTOR shall not alter, remove or tamper with any
Trademarks, numbers or any means of identification used on or in
relation to COVERED PRODUCTS, nor shall the DISTRIBUTOR have any
rights to Amiable Technologies, Inc. trade names or trademarks.
(i) The DISTRIBUTOR agrees not to localize, translate, or otherwise
alter COVERED PRODUCTS without the express written consent of
Amiable Technologies, Inc. Only upon express written consent will
Amiable Technologies, Inc. provide materials and technical
assistance to localize or translate COVERED PRODUCTS. Amiable
Technologies, Inc. retains the rights to all products localized,
translated, or derived from any of its COVERED PRODUCTS and
associated materials
5. Obligation of Amiable Technologies. Inc.
(a) Amiable Technologies, Inc. shall provide technical assistance to the
DISTRIBUTOR to facilitate sales; the extent of such technical
assistance is to be determined by the sole judgment of Amiable
Technologies, Inc.
(b) At the DISTRIBUTOR's option, Amiable Technologies, Inc. shall
provide training on Amiable Technologies, Inc.'s premises to a
qualified employee(s) of the DISTRIBUTOR in matters relating to
COVERED PRODUCTS and their marketing. Such services to be provided
by Amiable Technologies, Inc. shall be free of charge but the
DISTRIBUTOR shall be responsible for all salaries and other
employment costs of any and all traveling accommodations and other
expenses incurred by employees of the DISTRIBUTOR who are sent to
Amiable Technologies, Inc. premises including all costs and expenses
of workers' compensation and other insurance coverage for such
employees.
6. Orders and Shipments
(a) All orders of COVERED PRODUCTS should be made with the DISTRIBUTOR's
written purchase order. The purchase order document must specify
items by Amiable Technologies, Inc. product or part number,
description, quantity, price and desired delivery schedule. Within 5
business days after receiving the purchase order document, Amiable
Technologies, Inc. will notify the DISTRIBUTOR of the acceptance of
the order and the shipping schedule. Amiable Technologies, Inc.
shall use its best efforts to comply with the DISTRIBUTOR's desired
delivery schedule. The DISTRIBUTOR can initiate purchase orders by
telephone or FAX to facilitate the delivery schedule; however, such
orders must be followed by the regular purchase order document
immediately. Verbal orders without a follow up document can be
deemed invalid; however, the DISTRIBUTOR can be held responsible
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DISTRIBUTOR AGREEMENT 2
for verbal orders at the option of Amiable Technologies, Inc.
(b) COVERED PRODUCTS ordered must be scheduled for shipment within 30
days. The DISTRIBUTOR can request a rescheduling of the shipping
date by written notice. Such a rescheduling notice has to be
received by Amiable at least 5 business days prior to the previously
scheduled dates. The DISTRIBUTOR cannot request rescheduling so that
the shipping date will be past 30 days from the original purchase
order. Notice of rescheduling resulting in a shipment date past the
30-day period can be regarded as a cancellation of the order at the
option of Amiable Technologies, Inc.
(c) Amiable Technologies, Inc. shall make reasonable efforts to ship
COVERED PRODUCTS in accordance with the shipping schedule. Amiable
Technologies, Inc., however, shall not be liable for any loss of
business or profits, or damages to the goodwill of the DISTRIBUTOR,
which might be caused by any delays of shipment.
(d) DISTRIBUTOR is responsible for reimbursement of all transportation
and insurance costs incurred by shipment of COVERED PRODUCTS to the
DISTRIBUTOR.
7. Cancellation In the event the DISTRIBUTOR wishes to cancel an order or
part of an order, a written cancellation order must be received by Amiable
Technologies, Inc. at least 10 days prior to the scheduled ship date.
Cancellations notices received within 10 days of the scheduled shipment
are subject to a cancellation charge of 15 percent of the aggregate net
price for the items canceled Cancellation notices received in less than 10
days of thc scheduled shipment may be deemed invalid by Amiable.
8. Price The DISTRIBUTOR shall pay the prices set by Amiable Technologies,
Inc., the initial prices being those indicated in Schedule I. All COVERED
PRODUCTS are shipped F.O.B. Philadelphia, Pennsylvania, unless otherwise
noted. Amiable Technologies, Inc. shall not be responsible for loss or
damage incurred to COVERED PRODUCTS after shipment from F.O.B. point.
Amiable Technologies, Inc. reserves the right to change prices at any time
upon giving thirty (30) days notice to the DISTRIBUTOR.
9. Payment The DISTRIBUTOR agrees to remit funds necessary to purchase the
COVERED PRODUCTS indicated in Schedule I and as instructed by Amiable
Technologies, Inc. The initial order, under this Agreement, must be paid
upon the delivery of the COVERED PRODUCTS specified in the DISTRIBUTOR'S
Purchase Order. For subsequent purchases, the DISTRIBUTOR shall pay all
invoices from Amiable Technologies, Inc. net 30 days based on the date of
the shipment. Payments shall be made in U.S. dollars by wire transfer of
immediately available funds, to the bank account of Amiable Technologies,
Inc. located at Sovereign Bank, Philadelphia, Pennsylvania, Accout number
00-0000-0000, Routing number 231 372 691.
10. Transfer of Title Title to the COVERED PRODUCTS AND risk of loss or damage
to the COVERED PRODUCTS, as well as the responsibility to insure, shall
pass to the DISTRIBUTOR upon Amiable Technologies, Inc.'s delivery of
goods to a carrier at the F.O.B. point.
11. Warranty; Limitation on Liability
(a) Amiable Technologies, Inc. warrants all COVERED PRODUCTS to be free
of material defects in materials and workmanship under normal
commercial use for a period of thirty (30) days from the date of
installation. If no date of installation is on record with Amiable
Technologies, Inc., the warranty period starts at the date of
shipment to the DISTRIBUTOR.
(b) Any warranty offered by Amiable Technologies. Inc. is limited to
repair or replacement of the COVERED PRODUCTS at Amiable
Technologies, Inc.'s option.
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DISTRIBUTOR AGREEMENT 3
(c) Malicious damage, damage caused by unauthorized alterations or
copying or damage caused by unauthorized installation of COVERED
PRODUCTS shall not be covered by this warranty.
(d) Amiable Technologies, Inc. shall, in no event, have any obligation
or liability to any DISTRIBUTOR, buyer, or customer of its COVERED
PRODUCTS or any other person for loss of business, loss of profits,
loss of use, or any other incidental or consequential damages, even
if Amiable Technologies, Inc. has been advised of the possibility
thereof, arising from or in connection with the sales, delivery,
use, repair or performance of any of the COVERED PRODUCTS except as
provided in sections 13(e) and 17(c), DISTRIBUTOR'S exclusive remedy
against, and the total liability of Amiable Technologies, Inc., if
any, for damages under this Agreement shall be limited to the extent
set forth in paragraph 11(b).
(e) Except for paragraphs 11(a) and 13 (e), Amiable Technologies, Inc.
hereby disclaims all other warranties or guarantees with respect to
the subject matter of this Agreement, whether statutory, written,
oral, express or implied including, without limitation, any warranty
of merchantability, suitability or fitness for a particular purpose.
12. Return of Products Any return of material or products to Amiable
Technologies, Inc. for any reason has to be authorized by Amiable
Technologies, Inc. prior to shipment. Upon such authorization, Amiable
Technologies, Inc. shall issue a Return Material Authorization Number (RMA
Number) or a specific return. Returns will not be accepted unless
accompanied by an RMA number.
13. Independence of Business
(a) Amiable Technologies, Inc. and the DISTRIBUTOR are each an
independent entity, each conducting its own business on its own
account. The DISTRIBUTOR is not an agent of Amiable Technologies,
Inc. The DISTRIBUTOR shall assume all liabilities arising from sales
activities and the demonstration of products, including but not
limited to liabilities arising from the use of automobiles by its
staff.
(b) The DISTRIBUTOR may imprint their name and address in the
appropriate space on Amiable Technologies, Inc. promotional
literature.
(c) The DISTRIBUTOR shall not engage itself in activities which can be
construed to be detrimental to the reputation of Amiable
Technologies, Inc. or its products.
(d) The DISTRIBUTOR can use logos, trademarks and names and symbols of
Amiable Technologies, Inc. in connection with the promotion and sale
of COVERED PRODUCTS; but such use will be subject to prior consent
of and control by Amiable Technologies, Inc. in order to protect the
ownership or rights to same.
(e) Amiable Technologies, Inc. warrants that it has exclusive rights to
the COVERED PRODUCTS and that the use of the COVERED PRODUCTS, by
itself, shall not infringe any patent or copyright pertaining to the
COVERED PRODUCTS. Notwithstanding paragraph 11(b) to the contrary,
Amiable Technologies, Inc. agrees, at its own expense, to: (i)
defend DISTRIBUTOR against or, at its option, settle any claim, suit
or proceeding brought against DISTRIBUTOR on the issue of United
States patents or copyright infringement with respect to the COVERED
PRODUCTS; and (ii) pay DISTRIBUTOR any reasonable cost, damages and
reasonable attorney's fees that DISTRIBUTOR is found liable for
(other than attorneys' fees incurred by DISTRIBUTOR) as the result
of any lawsuit based on such a claim, such amount not to exceed One
Hundred Thousand Dollars ($100,000); provided that, Amiable
Technologies, Inc. (I) is notified immediately after DISTRIBUTOR
receives notice of such claim; (ii) is soley in charge of the
defense of any settlement negotiations with respect to such claim;
and (iii) has the right, upon either the occurrence of, or the
likelihood (in the opinion of Amiable) of occurrence of a finding of
infringement, to (a) procure for DISTRIBUTOR the right to continuing
using the COVERED PRODUCTS; or (b)
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DISTRIBUTOR AGREEMENT 4
replace the COVERED PRODUCTS with other equivalent, non-infringing
software. DISTRIBUTOR may also be represented at its own expense by
counsel of its choice in such defense and negotiations to the extent
it is a party or may be adversely affected thereby. Amiable assumes
no responsibility for any product not supplied by it, or for any
products supplied by it, which has been changed, modified, adapted
or refitted without the express authorization in writing from
Amiable.
(f) The DISTRIBUTOR shall not engage in any activities that facilitate
the copying, reproduction or unlawful use of any of Amiable
Technologies, Inc.'s COVERED PRODUCTS. DISTRIBUTOR must report any
evidence of such acts immediately to Amiable Technologies, Inc. Any
reproduction or attempted reproduction of Amiable Technologies,
Inc.'s intellectual property including software is illegal and will
be immediately forwarded to the proper authorities for prosecution
to the full extent of the law.
14. Terms Unless earlier terminated pursuant to paragraph 15, the terms of
this agreement shall be in full force and affect until one (1) year from
the date on which this Agreement is signed by Amiable Technologies Inc.
(page 7) and may be extended upon mutual written agreement of both
parties.
15. Termination
(a) This agreement may be terminated by Amiable Technologies, Inc. upon
giving thirty (30) day's written notice delivered by registered mail
to the DISTRIBUTOR if any of the following events occur:
(i) The breach by the DISTRIBUTOR of any provisions of this
agreement.
(ii) The DISTRIBUTOR shall file or has been filed against it any
petition under any bankruptcy or insolvency law.
(iii) The DISTRIBUTOR commits any act or deed, which in Amiable
Technologies, Inc.'s or its legal counsel's opinion, is
detrimental to the business interests of Amiable Technologies,
Inc.
(b) This agreement may be terminated by either party without cause, upon
sixty (60) days written notice to the other party, delivered by
registered mail.
(c) Neither Amiable Technologies, Inc. or the DISTRIBUTOR shall, by any
reason of the termination of this agreement, be liable to the other
party for compensation, reimbursement or damages on account of loss
of prospective profits or anticipated sales, or on account for
investment or commitment in connection with the business or on the
loss of goodwill.
16. Rights of Termination Upon the DISTRIBUTOR's receipt of notice of
termination of this agreement for any reason:
(a) The DISTRIBUTOR's unpaid invoices from Amiable Technologies, Inc.
shall become due immediately regardless of the original payment
terms.
(b) The DISTRIBUTOR shall remain liable for all its obligations to make
any payments, even if invoiced after the effective date of such
termination.
(c) The DISTRIBUTOR shall cease any activities to sell or promote
COVERED PRODUCTS, except to the extent necessary to sell any
remaining inventory.
(d) The DISTRIBUTOR will promptly return all demonstration units and
promotional literature provided by Amiable Technologies, Inc.
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DISTRIBUTOR AGREEMENT 5
17. Confidentiality.
(a) Information. During the term of this Agreement, each party may have
or may be provided access to the other party's confidential
information and materials. All such information shall be retained in
confidence in accordance with the terms of this Agreement. Further,
neither party shall (except as expressly authorized herein during
the term of this Agreement), either during the term of this
Agreement or after its termination or expiration, use, publish or
disclose or cause or permit anyone else to use, publish or disclose
any such information, unless the disclosing party can show by
written evidence that such information was known to it at the time
of receipt thereof from the other party, or until such information
becomes publicly available through no fault of the disclosing party,
and except as disclosure may be required by or pursuant to,
applicable federal, state, municipal or local laws, rules or
regulations, or other act or order of any court, government or
governmental agency, as to which the disclosing party shall give the
party whose information is being disclosed prompt notice, and with
whom the disclosing party shall consult on the possibility of
seeking a protective order or other means to preserve the
confidentiality of the information required to be disclosed.
(b) Termination. Upon Termination or expiration of this Agreement, each
party shall either return all copies of any confidential information
of the other party described in paragraph 17(a) in such first
party's possession or control, or certify in writing that all such
tangible information has been destroyed.
(c) Remedy. Each party recognizes and acknowledges that the other party
would not have any adequate remedy at law for the breach by the
other party of any one or more of its obligations contained in this
paragraph 17(c), and agrees that in the event of any any such actual
or potential breach, the non-breaching party may, in addition to the
other remedies which may be available to it, file a suit in equity
to enjoin the other party therefrom.
18. Governing Law This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania. The parties
agree to the jurisdiction of any disputes in the Commonwealth of
Pennsylvania without regard to conflicts of law principles.
19. Assignability Amiable Technologies, Inc. shall have the right to assign
this agreement to its successors or to any other party capable of, in its
opinion, carrying out the obligations of Amiable Technologies, Inc.
hereof. The DISTRIBUTOR must obtain a written consent from Amiable
Technologies, Inc. to assign this agreement to any other person or
corporation. Amiable Technologies, Inc. in its sole judgment, can decline
to consent to any such assignment, with or without cause. A significant
change in the ownership of a DISTRIBUTOR shall be interpreted as an
assignment of this agreement.
20. Entire Agreement This agreement constitutes the entire agreement and
understanding between the parties concerning the matters herein and
supersedes all prior or contemporaneous agreements and understandings.
21. Severability and Non-waiver of Rights If any provision of this agreement
is held invalid by any court, government agency or regulatory body, the
other provisions shall remain in full force and effect. The failure of
either party to enforce at any time any of the provisions of this
agreement or to require the performance of the other party of any of the
provisions hereof, shall in no way be construed to be a waiver of such
provisions nor the validity of this agreement or any part thereof.
22. Captions and Headings The captions and headings contained in this
agreement have been employed for convenience of reference only and do not
constitute a part of this agreement.
23. Notices All notices and other communications hereunder shall be sent by
the parties by registered or certified mail, with return receipt
requested, as follows:
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DISTRIBUTOR AGREEMENT 6
a) If to Amiable Technologies, Inc.: Amiable Technologies, Inc.
International Xxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
Attn.: President
(b) If to the DISTRIBUTOR: Mutoh Industries Ltd.
0-0-0 Xxxxxxx,
Xxxxxxxx-Xx. Xxxxx
Xxxxx
Attn: Image & Information Division
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DISTRIBUTOR AGREEMENT 7
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
day and year written below:
Amiable Technologies, Inc. Mutoh Industries Ltd.
International Plaza Two 0-0-0 Xxxxxxx
Xxxxx 000 Xxxxxxxx-Xx, Xxxxx
Xxxxxxxxxxxx, XX 00000-0000 Japan
Signature: /s/ Xxxxx Xxxxx /s/ Ryotaro Tokushima
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Name: XXXXX XXXXX RYOTARO TOKUSHIMA
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Title: PRESIDENT SENIOR MANAGING DIRECTOR
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Date: JULY 12, 2000 JULY 7, 2000
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Schedules Attached : I
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DISTRIBUTOR AGREEMENT 8
SCHEDULE I
1. COVERED PRODUCTS
Mutoh RJ Personal Edition
2. PRICING
Mutoh RJ Personal Edition Japanese [Information redacted]##
The pricing above includes the 2 Morisawa fonts that are required to
bundle in Japan.
3. INITIAL PURCHASE ORDER
DISTRIBUTOR agrees to submit an initial purchase order of [information
redacted]## units of COVERED PRODUCTS upon the signing of this contract.
4. MINIMUN QUANTITY PER ORDER
DISTRIBUTOR agrees to purchase a minimum quantity of [information
redacted]## units per order.
5. PACKAGING, CD AND MANUAL DUPLICATION
DISTRIBUTOR agrees to package and, duplicate the CD and the manual.
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## The information contained in this portion of the agreement has been omitted
and filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
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DISTRIBUTOR AGREEMENT 9
