EXHIBIT 10.9
[*] CONFIDENTIAL INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
AGREEMENT NUMBER: 306552
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NEC COMPUTER SYSTEMS DIVISION
AUTHORIZED RESELLER MASTER AGREEMENT
This Agreement is made as of June 23, 1999 by and between NEC Computer
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Systems Division, a division of Packard Xxxx NEC, Inc. having its principal
place of business at 0 Xxxxxxx Xxxx Xxx, Xxxxxxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as "NECCSD"), and
Battery Express, Inc. (DBA iGo)
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having its principal place of business at
0000 Xxxx Xxxxx
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Xxxx, XX 00000
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(hereinafter referred to as "RESELLER"
The following are the terms and conditions under which NECCSD will sell and
license its computer equipment, including related peripheral equipment and
Licensed Programs (hereinafter referred to as "PRODUCTS") to RESELLER or will
pay commissions to RESELLER for NECCSD end-user sales, as may be further defined
in the applicable Reseller Class Addendum, and facilitated by RESELLER. The
PRODUCTS to be supplied under this Agreement shall be those PRODUCTS listed in
the then current appropriate NECCSD Price Matrix or as defined in the applicable
Reseller Class Addendum.
1. APPOINTMENT AND ACCEPTANCE
1.1 NECCSD appoints RESELLER as an authorized, non-exclusive representative
of NECCSD PRODUCTS. RESELLER's appointment is made for the purpose of RESELLER's
resale of the PRODUCTS to end-user customers, as may be further defined in the
Reseller Class Addendum, and to other NECCSD resellers as set forth in Section
1.2, within the RESELLER Territory as defined in Section 8. NECCSD agrees to pay
commissions to RESELLER, in accordance with Section 6 of this Agreement and
further defined by the applicable Reseller Class Addendum, for direct end-user
sales facilitated by RESELLER.
1.2 In addition to RESELLER's right to sell or otherwise transfer PRODUCTS to
end-user customers, as set forth in Section 1.1, RESELLER is authorized to sell
or otherwise transfer PRODUCTS to other Resellers appointed by RESELLER directly
or indirectly. This authorization from NECCSD is contingent upon RESELLER
obtaining from its Resellers monthly Customer Sales Reports, as defined in
Section 3.3 of this Agreement, which will be provided monthly to NECCSD with the
RESELLER's monthly Customer Sales Report.
1.3 Other specified products may be added as PRODUCTS by NECCSD during the
Term of this Agreement or any renewal thereof. Such PRODUCTS may be subject to
additional terms and requirements as determined by NECCSD. NECCSD reserves the
right at any time to change, modify or discontinue any model or type of
PRODUCTS.
1.4 NECCSD shall have the right, from time to time, at its sole discretion,
to increase or decrease the number of NECCSD representatives in the vicinity of
RESELLER's authorized location(s) or elsewhere without notice to RESELLER.
1.5 RESELLER accepts its appointment hereunder.
2. RESELLER RESTRICTIONS
2.1 The parties recognize and acknowledge the following:
2.1.1 It is in their mutual best interest that the PRODUCTS be sold through an
effective Reseller network whereby all locations selling the PRODUCTS meet the
standards established by NECCSD for it Authorized Resellers as outlined in
Section 3 and 4 herein, as well as other standard published by NECCSD from time
to time; and
2.1.2 The PRODUCTS are offered only through a limited number of representatives
appointed by NECCSD to sell the PRODUCTS. RESELLER will be encouraged to offer
the maximum amount of services with respect to the PRODUCTS, both prior and
subsequent to sale.
2.2 RESELLER warrants and represents that each of its selling locations shall
meet and maintain the sales and support requirements as stated in Section 3.
3. SALES PROMOTION AND SUPPORT
3.1 RESELLER agrees that each of the requirements expressed in this Section
shall be fulfilled by RESELLER.
3.1.1 RESELLER shall maintain a minimum staff of two (2) competent sales
representatives who are knowledgeable concerning computer products in general,
and who are thoroughly familiar with the specifications, features and technical
advantages of NECCSD PRODUCTS. RESELLER must also maintain a minimum staff of
two (2) trained technical support representative (CNE/MSCE). RESELLER shall
conduct any training of its sales and technical personnel that may be necessary
to impact such knowledge and shall cooperate fully in any PRODUCT education
programs which NECCSD may establish.
3.1.2 RESELLER shall conduct it operations in a manner that will not adversely
affect the high image, credibility or reputation of NECCSD or NECCSD PRODUCTS.
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CONFIDENTIAL TREATMENT REQUESTED
3.1.3 RESELLER shall use its best efforts to stimulate and increase interest in
the PRODUCTS, shall consistently encourage the purchase of the PRODUCTS by
RESELLER's customers, and shall represent the PRODUCTS fairly at all times in
comparison with competitive products from other suppliers. RESELLER at no time
shall engage in "bait and switch" or any other unfair trade practices with
regard to NECCSD PRODUCTS, and shall make no false or misleading representations
with regard to NECCSD or NECCSD PRODUCTS. RESELLER shall make no representations
to customers or to the trade with respect to NECCSD PRODUCT specifications,
features, or performance except such as may be approved in writing or published
by NECCSD.
3.2 RESELLER, at the time of purchase order submission, shall indicated to
NECCSD within the body of the purchase order it's customer's zip code or other
data as required by NECCSD.
3.3 RESELLER shall submit to NECCSD monthly Customer Sales Reports which
shall include the customer name and address, customer and RESELLER purchase
order numbers, PRODUCT configuration, and PRODUCT quantity, and as may be
further defined in the applicable Reseller Class Addendum.
3.3.1 RESELLER shall submit monthly reports to the address as indicated in the
Reseller Resource Guide within five (5) business days after the end of the
reporting month.
3.4 RESELLER will comply with NECCSD programs for in-warranty repairs and
post-warranty support for PRODUCTS.
3.5 RESELLER will permit NECCSD to perform an initial inspection of the sales
and service facilities of RESELLER prior to authorization.
4. COMMITMENT
4.1 RESELLER hereby commits and agrees to accept delivery and/or facilitate
the sale of an Annual Net Dollar Volume Commitment as stated in Addendum A.
4.2 For the Initial Term only, Agreements executed after January 1 of the
current year shall be prorated, based on the proportion of the Agreement year
remaining until the first occurrence of the 31st of December. (For example: An
Agreement approved on June 30 has an Initial Term of 6 months remaining until
the first occurrence of the 31st of December. (For example: An Agreement
approved on June 30 has an Initial Term of 6 months remaining = 180 days, or 50%
of the Annual Net Dollar Volume Commitment).
4.3 On a Semi-Annual basis, July and January, NECCSD shall review RESELLER's
achievement of the Annual Net Dollar Volume Commitment. If, at the end of any
such review RESELLER fails to achieve fifty percent (50%) of the revenue
commitment, then RESELLER shall identify the problem areas, develop appropriate
action plans and implement said action plans to resolve outstanding problem
issues. However, if, after the completion of any term, RESELLER fails to
achieve the Annual Net Dollar Volume Commitment, NECCSD reserves the rights to
immediately terminate this Agreement.
4.4 NECCSD may, upon thirty (30) days prior written notice, modify the Annual
Net Dollar Volume Commitments.
5. TERM
5.1 This Agreement shall become effective on the date a duly authorized
officer or designated party of NECCSD executes this Agreement and unless
terminated as provided herein, it shall continue in full force and effect until
the first occurrence of the 31st of December ("Initial Term"). Thereafter, the
term shall be renewed as provided in Section 5.2, below.
5.2 This Agreement will be automatically renewed for additional twelve (12)
month successive term(s) commencing January 1 of the current year through
December 31 of the same year, provided RESELLER has achieved the required
commitment(s) during the initial term or current renewal term, unless this
Agreement is terminated by either party by written notice to the other not less
than thirty (30) days prior to the annual renewal date, unless this Agreement is
terminated as otherwise provided herein.
6. COMMISSIONS
6.1 NECCSD will pay a commission for the sales of NECCSD PRODUCT facilitated
by RESELLER but ordered directly by the end-user customer, as may be further
defined in the applicable Reseller Class Addendum. Subject to the provisions,
terms and conditions of this Agreement and the applicable Reseller Class
Addendum, and as RESELLER's sole and exclusive compensation for all of its
efforts, services and activities for facilitated sales to said defined class of
end-user, NECCSD shall pay RESELLER a commission in accordance with this Section
6, and the applicable Reseller Class Addendum. NECCSD agrees to pay RESELLER, as
its sole compensation for those services, a commission based on the Net Invoice
Price. The customer must include the RESELLER's name and address and Agreement
Number within the body of the purchase order. This is a requirement for RESELLER
to qualify for a commission. In addition, RESELLER agrees, upon request, to
provide any and all documents to substantiate claims for commission payments.
NECCSD reserves the right to be final arbiter in any dispute regarding
commissions due RESELLER. RESELLER agrees to be bound by any decision made by
NECCSD regarding commissions.
6.2 "Net Invoice Price" shall be the total price for which an order is
invoiced to the end-user customer but exclude installation fees, maintenance,
shipping and mailing costs, taxes, tariffs, insurance, and any allowance and/or
discounts granted to the reseller customer by NECCSD.
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6.3 RESELLER understands that NECCSD shall not pay commissions against any
order where the Customer has failed to reference the RESELLER.
6.4 Commissions due and payable to RESELLER will be paid no later than the
30th day of each month after payment is received by NECCSD for shipments made in
the previous month within the "Territory" as defined in Section 8. RESELLER
shall not be entitled to and shall not receive any commission(s) or
any payment(s) other than amounts invoiced by NECCSD for the PRODUCTS, as set
forth herein, and accepted by the defined end-user.
6.5 NECCSD shall charge back against RESELLER's commission account the amount
of any commission already credited or paid to RESELLER in condition with (i)
PRODUCTS that are returned to NECCSD; (ii) orders that are canceled by the end-
user; and (iii) transactions that require or result in refunds or credits to
customers. Any net amount due from NECCSD to RESELLER after any such charge
shall be deducted from RESELLER's then due and payable commission payment. Any
amount due from RESELLER to NECCSD upon termination of this Agreement, in excess
of commissions then due or to become due shall be paid by RESELLER to NECCSD
within thirty (30) days of the termination date.
6.6 If RESELLER requests expedited shipment to a customer, RESELLER shall be
responsible for paying the difference between the cost of ordinary shipment and
the cost of expedited shipment. Such freight charges shall be deducted from the
RESELLER's commission payment.
6.7 RESELLER agrees not to assign any commission due or to become due under
this Agreement, but all commissions properly due RESELLER shall in any event
inure to the benefit of RESELLER's legal successors.
6.8 Under no circumstances will NECCSD be responsible for paying any
commissions to RESELLER for: (i) sales made outside the designated Territory,
(ii) sales made to any customer other than the customer class as defined in the
applicable Reseller Class Addendum prices, terms and conditions.
6.9 With payment of commissions to RESELLER, NECCSD will send RESELLER a
commission statement showing:
(i) Commissions due to RESELLER (listing the end-user invoices and purchase
orders on which the commissions are being paid); and
(ii) If applicable, deductions for PRODUCT returns, will be made from the
current statement's earned commissions due to RESELLER.
6.10 NECCSD may upon 30 day written notice modify the commission structure.
7. DISCOUNT
7.1 Prices paid by RESELLER for PRODUCT purchased for resale shall be the
appropriate then-current NECCSD published end-user price less the appropriate
then-current Reseller Discount (hereinafter referred to as "STANDARD DISCOUNT")
as defined in the Reseller Resource Guide, or may be further defined in the
applicable Reseller Class Addendum.
7.2 NECCSD may upon 30 day written notice modify the discount structure.
8. TERRITORY
8.1 Subject to Sections 1 and 2 of this Agreement, RESELLER will have the
non-exclusive right within the United States of America, or as further defined
in the applicable Reseller Class Addendum, (the "Territory") to market, sell,
and promote the PRODUCTS.
8.2 NECCSD expressly reserves the right to market, solicit sales and sell,
lease, rent or otherwise dispose of the PRODUCTS to others in the Territory,
including but not limited to, NECCSD national accounts, commercial customers,
value added resellers, other resellers, or representatives. Such right may be
exercised directly through other representatives or thorough any other channel
or form of distribution at any time. RESELLER will not be entitled to any
commission, discount, or any other compensation with respect to or on account of
any such sale, lease rent or other disposition. Nothing herein shall be
construed so as to require NECCSD to issue letters of supply or similar
authorizations to RESELLER or third parties on RESELLER's behalf; the issuance
of any such document shall lie within NECCSD's sole discretion.
9. PURCHASE ORDERS
9.1 Each of RESELLER's orders is subject to NECCSD's acceptance or rejection
at the NECCSD address indicated in the Reseller Resource Guide. In addition to
any specific rights of rejection set forth in this Agreement, NECCSD shall have
the right, for any reason whatsoever, to reject any order, in whole or in part.
9.2 To receive PRODUCTS, RESELLER must deliver to NECCSD pursuant to Section
9.1 and the Reseller Ordering instructions in the Reseller Resource Guide a hard
copy purchase order or follow the procedure set forth in Section 9.2.2.
9.2.1 All RESELLER purchase orders must reference the assigned RESELLER
Agreement Number. NECCSD reserves the right to reject any order which is not
NECCSD credit-approved or does not conform with the provisions of this
Agreement. All orders accepted for delivery will be governed exclusively by the
terms and conditions of this Agreement. Unless NECCSD expressly agrees in
writing, no additional or different terms and conditions appearing on the face
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CONFIDENTIAL TREATMENT REQUESTED
different terms and conditions appearing on the face or reverse side of any
order issued by RESELLER shall become part of such order. Acknowledgment of
RESELLER purchase order by NECCSD shall not constitute acceptance of any
additional or different terms and conditions.
9.2.2 In the event that RESELLER elects the following procedure, then in lieu
of submitting a hard copy purchase order, RESELLER may order PRODUCTS by
submitting a purchase order via facsimile machine or such other electronic means
acceptable to NECCSD. By executing this Agreement, RESELLER authorizes NECCSD
to accept orders communicated to NECCSD by facsimile machine, electronic data
interchange or such other electronic means acceptable to NECCSD. All such orders
as described above shall be binding upon RESELLER and are subject to acceptance
by NECCSD.
9.2.3 The authorization to accept orders as described in Section 9.2.2 shall
remain in effect until NECCSD receives written notification by certified mail
terminating said procedure. Unless NECCSD agrees otherwise in writing, no
termination of this procedure shall affect or cancel any order which has been
accepted or shipped by NECCSD.
10. SHIPMENTS, PACKING CANCELLATIONS, AND CHANGES
10.1 For standard PRODUCT, unless otherwise stated herein, RESELLER may cancel
a shipment or request changes in scheduled shipment date at no charge up to five
(5) business days prior to shipment. In the event RESELLER cancels or requests
changes within five (5) business days prior to shipment, a charge of five
percent (5%) of the shipment's price will be levied. No cancellation or change
may be made after shipment.
10.2 Shipments are subject to availability. NECCSD will use reasonable efforts
to meet any scheduled shipment date, but reserves the right to schedule and/or
reschedule any order, at its discretion. NECCSD will not be liable for delay in
meeting a scheduled shipment date for any reason. If PRODUCTS are in short
supply, NECCSD will allocate them equitably, at NECCSD's discretion, amount
Resellers and all others sales channels. NECCSD shall have the right to make
partial shipments with respect to RESELLER's orders, which shipments shall be
invoiced separately and paid for when due, without regard to subsequent
shipments. Delay in shipment or delivery of any particular installment shall not
relieve RESELLER of its obligation to accept the remaining installments. NECCSD
SHALL NOT BE LIABLE TO RESELLER FOR ANY DAMAGES WHETHER INCIDENTAL,
CONSEQUENTIAL OR OTHERWISE FOR FAILURE TO FILL ORDERS. DELAYS IN SHIPMENT OR
DELIVERY OR ANY ERROR IN THE FILLING OF ORDERS REGARDLESS OF THE CAUSE THEREFOR.
10.3 NECCSD shall prepay the freight, provided that the PRODUCT is shipped via
standard ground transportation, common carrier of NECCSD's choice. All
insurance, rigging, and drayage charges shall be paid by RESELLER. All
additional costs due to events occurring after the time the goods have been
delivered to the first common carrier are transferred from NECCSD to RESELLER
when the PRODUCTS have been delivered into the custody of the carrier.
10.4 Upon delivery to first common carrier, Title to and Risk of Loss for all
PRODUCTS shall pass to RESELLER (except that Title to all Licensed Programs
remains in NECCSD or its licenser). RESELLER shall assume responsibility for
promptly advising the carrier and insurer of the loss. NECCSD will assist to
the extent reasonably possible in establishing any such claim.
10.5 It is understood and agreed that NECCSD will select the carrier but will
not thereby assume any liability in connection with the shipment, nor will the
carrier be construed to be an agent of NECCSD.
10.6 NECCSD may, upon thirty (30) days prior notice, modify these shipping
terms.
10.7 Packaging will be in accordance with NECCSD's commercial practices for
domestic shipment.
11. PRICE AND PAYMENT TERMS
11.1 Prices for the PRODUCTS purchased and/or licensed under this Agreement
shall be as specified in the applicable NECCSD Reseller Price Matrix prevailing
at the time NECCSD receives a purchase order. NECCSD may change prices at any
time upon notice to RESELLER and such changes shall apply to any orders that
have not been shipped. In the event of a price increase, RESELLER may cancel
any unshipped orders by written notice to NECCSD within ten (10) business days
of receipt of notice of the price increase.
11.2 Regardless of the party paying the freight and subject to credit approval
by NECCSD, payment is due within thirty (30) days from the date of shipment.
11.3 Prices are exclusive of all sales, use and like taxes. RESELLER shall pay
all taxes associated with the sale and licensing of all NECCSD PRODUCTS
purchased or licensed under this Agreement exclusive of taxes based on NECCSD's
income. Any taxes shall be in addition to the prices of the PRODUCTS and if
required to be collected or paid by NECCSD, shall be reimbursed by RESELLER to
NECCSD. If claiming a sales tax exemption, RESELLER must provide NECCSD with
valid tax exemption certificates for those states where deliveries are to be
made at the time RESELLER's purchase order is submitted.
12. CREDIT AND FINANCIAL REQUIREMENTS
12.1 RESELLER represents and warrants to NECCSD that RESELLER is in good and
substantial financial condition and is able to pay all bills when due. RESELLER
shall, from time to time, furnish any financial statements or additional
information as may be requested by NECCSD to enable NECCSD to determine
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RESELLER's financial condition. RESELLER, at all times, shall comply with the
terms, conditions and policies established by the Credit Department of NECCSD,
including, but not limited to, those set forth in the NECCSD Credit Application,
applicable Guarantees and Security Agreement(s).
12.2 NECCSD, at its option, may extend credit to RESELLER or may require, at
any time, that sales be made on an advance-payment basis if, in NECCSD's sole
judgment, RESELLER does not qualify for credit. If credit limits for RESELLER
and to change such credit limits or any other financial requirements, from time
to time, at NECCSD's sole discretion.
12.3 Sales will be made on the payment terms in effect at the time that an
order is accepted, and RESELLER shall pay all invoices when due. Receipt of any
check, draft or other commercial paper shall not constitute payment unless and
until such instrument has been honored by the appropriate financial
institution(s). RESELLER shall not make deductions of any kind from any payments
due NECCSD unless credit memorandum has been issued by NECCSD to RESELLER. No
payment by RESELLER to NECCSD of any lesser amount than that due to NECCSD shall
be deemed to be other than a payment on account, and no endorsement or statement
on any check or in any letter accompanying any check or other payment shall be
deemed an accord and satisfaction. NECCSD may accept any payment without
prejudice to NECCSD's right to recover any remaining balance or to pursue any
other remedy provided in this Agreement, in any Security Agreement(s) executed
by the parties, or by applicable law.
12.4 If RESELLER becomes delinquent in payment obligations or other credit or
financial requirements established by NECCSD, or if in the sole judgment of
NECCSD, RESELLER's credit becomes impaired, NECCSD shall have any or all of the
following rights and remedies in addition to any other rights and remedies
provided in this Agreement, in any Security Agreement(s) executed by the
parties, or by applicable law:
12.4.1 NECCSD may refuse to accept any new orders, may cancel or delay
shipment of any orders accepted previously, or may stop any shipments in
transit.
12.4.2 If NECCSD previously has extended credit to RESELLER and NECCSD elects
to make further sales to RESELLER, NECCSD may refuse to extend further credit
and may require payment on an advance-payment basis.
12.4.3 NECCSD may declare all outstanding amounts immediately due and payable,
notwithstanding any credit terms previously in effect.
12.5 NECCSD SHALL NOT BE LIABLE TO RESELLER FOR LOSSES OR DAMAGES OF ANY KIND
AS A RESULT OF THE EXERCISE BY NECCSD OF ITS RIGHTS AND REMEDIES HEREUNDER.
12.6 NECCSD reserves the right to assess interest on all delinquent amounts at
the rate of one and one-half percent (1 1/2%) per month (eighteen percent [18%]
per annum) from the due date of invoice. However, if the maximum rate of
interest permitted by applicable law or regulations is less than that provided
for herein, then the interest shall be reduced to the maximum allowable rate.
12.7 Unless otherwise expressly agreed to in writing, RESELLER agrees that if
and when NECCSD establishes a line of credit for RESELLER or permits RESELLER to
purchase on open account, NECCSD shall have a security interest in all of the
PRODUCTS purchased by RESELLER (and all proceeds thereof) to secure the payment
of all indebtedness owed by RESELLER to NECCSD. RESELLER agrees that a copy of
this document may be filed in lieu of a financing statement, and agrees to
execute additional documents relating to said security interest as may be
requested by NECCSD.
12.8 In the event that it becomes necessary for NECCSD to institute litigation
to collect sums owed by RESELLER, NECCSD shall be entitled to an award of
reasonable attorneys' fees and costs incurred by NECCSD in connection with the
litigation, if a judgment in NECCSD's favor is entered in the litigation.
13. RELATIONSHIP
13.1 RESELLER's relationship to NECCSD will be that of an independent
contractor engaged in purchasing and licensing PRODUCTS for resale to RESELLER's
customers. RESELLER and its employees are not agents or legal representatives of
NECCSD for any purpose and have no authority to act for, bind or commit NECCSD.
RESELLER and NECCSD agree that this Agreement does not establish a franchise,
joint venture or partnership.
13.2 Any commitment made by RESELLER to its customers with respect to
quantities, delivery, modification, interfacing capability, suitability of
software, or suitability in specific applications will be RESELLER's sole
responsibility, unless prior written approval is obtained from NECCSD's
principal place of business. RESELLER has no authority to modify any warranty
contained in this Agreement or issued by NECCSD or make any other commitment on
behalf of NECCSD, and RESELLER will indemnify, defend and hold NECCSD harmless
from any liability, suit or proceeding for any such modified warranty or other
commitment by RESELLER or its selling locations.
14. TRADEMARKS
14.1 RESELLER shall not attach any additional trademarks or trade names to the
PRODUCTS, and shall refrain from affixing any NECCSD owned or licensed trademark
or trade name to products other than the appropriate NECCSD PRODUCTS.
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CONFIDENTIAL TREATMENT REQUESTED
14.2 RESELLER shall not use any NECCSD owned or licensed trademark or trade
name in a way that implies RESELLER is an agency or branch of NECCSD. RESELLER
will immediately change or discontinue any use as requested by NECCSD.
14.3 RESELLER shall not register or use any NECCSD owned or licensed trademark
or trade name, in whole or in part, as a domain name on the Internet without
prior written approval of NECCSD.
14.4 RESELLER has no right, title or interest in any NECCSD trademark or trade
name and is not authorized to use any NECCSD trademark or trade name other than
the designated trademarks. Any rights in any NECCSD trademark or trade name
other than the designated trademarks. Any right in any NECCSD trademark or
trade name acquired through RESELLER's use belong solely to NECCSD. Upon
termination of this Agreement, RESELLER will discontinue any representations
that is an Authorized Reseller of NECCSD PRODUCTS.
15. INTELLECTUAL PROPERTY INDEMNITY
15.1 NECCSD hereby represents and warrants that the PRODUCTS and the sale and
use of the PRODUCTS do not infringe upon any U.S. or Canadian patent, copyright,
trade secret, trademark or other proprietary or intellectual property right of
any third party. NECCSD will defend RESELLER against any claim that a PRODUCT
supplied hereunder infringes a U.S. or Canadian patent, copyright, trade secret,
trademark or other proprietary or intellectual property right, or that the
PRODUCT operation pursuant to software supplied by NECCSD infringes on an
intellectual property right and NECCSD will pay any resulting costs, damages,
and reasonable attorneys' fees finally awarded, provided that (i) RESELLER
promptly notifies NECCSD in writing of the claim upon receipt of service of
process; (ii) NECCSD has sole control of the defense and all related settlement
negotiations; and (iii) RESELLER provides NECCSD complete information concerning
the claim. RESELLER shall have the right, but not the obligation, to
participate in the defense of any such suit or proceeding at RESELLER's expense.
15.2 NECCSD's obligation hereunder is conditioned on RESELLER's agreement that
if any PRODUCT becomes or in NECCSD's opinion is likely to become the subject of
such a claim, RESELLER will permit NECCSD, at its option and expense, either to
procure the right for RESELLER to continue using the PRODUCT or to replace or
modify the same so that it becomes non-infringing; and if neither of the
foregoing alternatives is available on terms that are reasonable in NECCSD's
judgement, RESELLER will return the PRODUCT on written request by NECCSD.
NECCSD agrees to grant RESELLER a credit for returned PRODUCTS as depreciated.
The depreciation shall be an equal amount per year over the life of the PRODUCT
as established by NECCSD.
15.3 NECCSD shall have no obligation to RESELLER under this Section 15, if any
patent copyright infringement or claim thereof is based upon: (i) use of any
PRODUCT delivered hereunder in connection or in combination with equipment,
software or devices not supplied by NECCSD; (ii) use of a PRODUCT in the
practicing of any process or in a manner for which the PRODUCT was not designed;
or (iii) NECCSD compliance with RESELLER shall indemnify, defend and hold NECCSD
harmless from any loss, cost or expense suffered or incurred in connection with
any suit, claim or proceeding brought against NECCSD which arises from, or is in
connection with, the manufacturer, use, sale or licensing of any PRODUCT which
as been modified, altered or combined with any equipment, device or software not
supplied by NECCSD to the extent that such suit, claim or proceeding is due to
such modification, alteration orcombination or (2) which arise from NECCSD's
compliance with RESELLER's designs, specifications or instructions.
15.4 The foregoing states NECCSD's entire liability for patent, copyright,
trade secret, trademark or proprietary or intellectual right infringements by
PRODUCTS furnished under this Agreement.
16. RIGHT TO SELL
16.1 NECCSD hereby represents and warrants that NECCSD has all right, title,
ownership interest and marketing rights necessary to provide the PRODUCT to
RESELLER. NECCSD further represents and warrants that (i) it has not entered
into any agreements or commitments which are inconsistent with or in conflict
with the rights granted to RESELLER in this Agreement; (ii) the PRODUCT shall be
new or warranted as new PRODUCT, in the instance "new PRODUCT" means that the
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operating system has not been registered by an end-user; (iii) the PRODUCT shall
be free and clear of all liens and encumbrances; and (iv) RESELLER and its end-
users shall be entitled to use the PRODUCTS without disturbance.
17. LIMITED WARRANTY
17.1 NECCSD extends a limited warranty solely to RESELLER's end-user customers
when the PRODUCTS are installed in the United States of America, only as set
forth in the Limited Warranty Statement accompanying each PRODUCT. RESELLER will
make no warranty representation on NECCSD's behalf beyond those contained in the
applicable Limited Warranty Statement. The warranty shall commence when the
PRODUCTS are resold and/or licensed to the end-user by the RESELLER subject to
the terms and conditions of the Limited Warranty Statement. NECCSD makes no
warranty to the RESELLER with respect to the PRODUCTS. In the event any PRODUCT
fails to operate, according to NECCSD's specifications, prior to being resold to
an end-user, RESELLER's exclusive remedy and NECCSD's sole responsibility shall
be (1) to repair the PRODUCT and obtain warranty reimbursement in accordance
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CONFIDENTIAL TREATMENT REQUESTED
with the then current NECCSD Authorized Service Center (NASC) procedures, or
(2) the return and replacement of the PRODUCT in accordance with NECCSD's then
prevailing policy.
17.2 The above warranty is contingent upon the proper use of the PRODUCTS and
will not apply to PRODUCTS on which the original identification marks have been
removed or altered. In addition, this warranty shall not apply to defects or
failure due to: (i) accident, neglect or misuse; (ii) failure or defect of
electrical power, external electrical circuitry, air-conditioning or humidity
control; (iii) the use of items not provided by NECCSD or any authorized NECCSD
representative modifying adjusting, repairing, servicing or installing the
PRODUCT.
17.3 NECCSD'S PRODUCTS ARE NOT DESIGNED INTENDED OR AUTHORIZED FOR USE IN ANY
MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FORANY OTHER APPLICATION IN
WHICH THE FAILURE OF THE NECCSD PRODUCT COULD CREATE A SITUATION WHERE PERSONAL
INJURY OR DEATH MAY OCCUR. ANYONE USING OR SELLING NECCSD PRODUCTS FOR USE IN
SUCH SYSTEMS DOES SO AT ITS OWN RISK.
17.4 Should the end-user purchase or use NECCSD PRODUCT for any such
unintended or unauthorized use, the end-user shall indemnify and hold NECCSD and
its officers, subsidiaries and affiliates harmless against all claims, costs,
damages, and expenses, and reasonable attorneys' fees arising out of, directly
or indirectly, any claim of product liability, personal injury or death
associated with such unintended or unauthorized use, even if such claim alleges
NECCSD was negligent regarding the design or manufacture of the PRODUCT.
17.5 EXCEPT FOR THE EXPRESS WARRANTY CONTAINED IN THE LIMITED WARRANTY
STATEMENT ACCOMPANYING THE PRODUCT, NECCSD DISCLAIMS ALL WARRANTIES AND IMPLIED
CONDITIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING,
BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR
PERFORMANCE OF PRODUCTS, WHETHER MADE BY NECCSD'S EMPLOYEES OR OTHERWISE, WHICH
IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BE NECCSD
FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF NECCSD WHATSOEVER. THE
WARRANTIES AND CORRESPONDING REMEDIES AS STATED IN THIS SECTION ARE EXCLUSIVE
AND IN LIEU OF ALL OTHERS WRITTEN OR ORAL.
18. PROGRAM LICENSE PROVISIONS
18.1 RESELLER shall distribute only Licensed Program materials which are
packaged with the end-user Program License Agreements that were originally
packaged with the Licensed Programs when shipped by NECCSD. If Licensed
Programs are received from NECCSD inside the packaging for a PRODUCT, the
RESELLER shall distribute the Licensed Programs in the PRODUCT's packaging. In
addition to the Licensed Program software and documentation with each such
PRODUCT. RESELLER shall also comply with any additional provisions with respect
to the distribution of the License Program(s) contained in the end-user Program
License Agreements. No title or ownership of the Licensed Programs or any of
its parts or related documentation (with the exception of the media on which it
is contained) is transferred to RESELLER. Title to all applicable rights in
patents, copyrights and trade secrets in the Licensed Programs shall remain in
NECCSD or its Licenser.
18.2 RESELLER shall present the ultimate end-user or each Licensed Program
with the Licensed Program will be subject to the terms of that Licensed Program
Agreement.
18.3 RESELLER will safeguard the Licensed Program from disclosure to third
parties by using the same degree of care to prevent unauthorized disclosure as
RESELLER uses with its own trade secrets and those of other suppliers. RESELLER
is granted a license to use the Licensed Program materials for marketing
demonstration purposes provided that it complies with the terms of the
applicable Program License Agreement packaged with the Licensed Program.
18.4 Unless prior written consent is granted by NECCSD, RESELLER will not copy
or modify any Licensed Program or its related materials supplied under this
Agreement. RESELLER will not removed or omit any copyright notice or other
proprietary notice contained in or packaged with a Licensed Program.
18.5 Any commercial computer software and technical data supplied under this
Agreement is provided to RESELLER with Restricted Rights. Use, duplication or
disclosure by the United States Government is subject to the end-user license
granted with such software and the restriction as set forth in subparagraph (b)
of the rights in Technical Data Commercial Items clause at DFARS 252.227-7015,
or as set forth in the particular department or agency regulations, such as
DFARS 227.7702-3, or rules which provide protection equivalent to or grater than
the above-cited rule. RESELLER shall comply with any requirements of the
Government to obtain such protection, including without limitation, the
placement of any restrictive legends on the Licensed Programs(s) when supplying
to the Government.
19. LIMITATION OF LIABILITY
19.1 Except as expressly provided herein, NECCSD shall not be liable for any
loss or damages claimed to have resulted from the use, operation, or performance
of the PRODUCTS, regardless of the form of action. Notwithstanding any provision
contained herein to the contrary, the maximum liability of NECCSD to RESELLER or
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CONFIDENTIAL TREATMENT REQUESTED
any person whatsoever arising out of or in connection with any sale, license,
use or other employment of any PRODUCT deliver to RESELLER hereunder, whether
such liability arises from any claim based upon contract, warranty, tort, or
otherwise, shall in no case exceed the actual amount paid to NECCSD by the
RESELLER hereunder for the specific PRODUCT unit(s) that caused the damages. The
foregoing limitations of liability will not apply to claims for personal injury
caused by NECCSD's negligence.
19.2 NECCSD and RESELLER may not institute any action in any form arising out
of this Agreement more than eighteen (18) months after the cause of action has
arisen, or in the case of nonpayment, more than eighteen (18) months from the
date of last payment or promise to pay, except that this limitation does not
apply to any action for payment of taxes.
19.3 IN NO EVENT SHALL NECCSD BE LIABLE TO RESELLER FOR SPECIAL, INDIRECT,
RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM
LOSS OF USE, DATAOR PROFITS WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR
OTHERWISE.
20. DURATION OF AGREEMENT/TERMINATION
20.1 Either RESELLER or NECCSD may terminate this Agreement which may include
any and all Addendum(s) and Amendments, if the other party commits a breach of
any obligation hereunder which is not remedied within thirty (30) days of
receipt of written notice specifying such breach.
20.2 Cause shall exist for termination by either party if the other party
attempts to assign this Agreement, except under circumstances permitted under
this Agreement, liquidates or terminates its business, is adjudicated a
bankrupt, makes an assignment for the benefit of creditors, invokes the
provisions of any law for the relief of debtors, or files or has filed against
it any similar proceeding.
20.3 In the event that RESELLER fails to act in accordance with the terms of
this Agreement and any NECCSD Programs, and RESELLER fails to cure such
violations within such period (if any) as may be provided by NECCSD in its sole
discretion, then NECCSD may terminate this Agreement and/or Addendum(s) in
accordance with Section 20.1 above.
20.4 Each party acknowledges that the other has made not commitments regarding
the term or renewal of this Agreement beyond those expressly stated herein.
Either party may terminate this Agreement or any Addendum(s) with or without
cause, at any time upon sixty (60) days written notice. EACH PARTY ACKNOWLEDGES
THAT SUCH A PERIOD IS ADEQUATE TO ALLOW IT TO TAKE ALL ACTIONS REQUIRED TO
ADJUST ITS BUSINESS OPERATIONS IN ANTICIPATION OF TERMINATION.
20.5 Upon termination of this Agreement for any reason, RESELLER will
immediately cease to represent itself as a NECCSD Authorized Reseller and form
using any NECCSD trademark or trade name.
20.6 Termination of this Agreement and/or Addendum(s) shall not affect any of
RESELLER's pre-termination obligations, including but not limited to, any
outstanding payment obligations hereunder. Any termination of this Agreement
and/or Addendum(s) shall be without prejudice to the enforcement of any
undischarged obligations owing NECCSD existing at the time of termination.
20.7 Upon termination of this Agreement, any orders outstanding and unshipped
as of the termination date shall be deemed canceled, and NECCSD shall have no
obligation to fill same. If this Agreement is terminated by either party with
advance notice, NECCSD shall have the right to reject all or part of any orders
received from RESELLER during the period after notice but prior to the effective
date of termination (hereinafter called "the final period" ) if availability of
----------------
the PRODUCTS is insufficient atthat time to meet the needs of NECCSD and its
customers fully. In any event, NECCSD may limit shipments during the final
period to an amount not exceeding RESELLER's average monthly purchases form
NECCSD during the three (3) months prior to the month in which notice of
termination is provided. Notwithstanding any credit terms made available to
RESELLER prior to that time, any of the PRODUCTS shipped by NECCSD to RESELLER
during the final period must be paid for by certified or cashier's check prior
to shipment.
20.8 THIS AGREEMENT IS BEING EXECUTED BY THE PARTIES WITH THE UNDERSTANDING
THAT IT MAY BE TERMINATED AT ANY TIME AS PROVIDED HEREIN. NEITHER PARTY SHALL BE
LIABLE TO THE OTHER UNDER ANY LEGAL OR EQUITABLE THEORY, FOR COMPENSATION,
REIMBURSEMENT FOR INVESTMENTS OR EXPENSES, LOST PROFITS, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, OR DAMAGES OF ANY OTHER KIND OR CHARACTER AS A RESULT OF
ANY TERMINATION OF THIS AGREEMENT.
20.9 RESELLER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT IT SHALL NOT BE
ENTITLED TO ANY TERMINATION COMPENSATION FOR GOODWILL OR FOR ORDERS FROM END-
USER CUSTOMERS OBTAINED BY RESELLER AFTER TERMINATION OF THIS AGREEMENT,
REGARDLESS OF PRIOR SALES EFFORT OR EXPENSE INCURRED BY RESELLER DURING THE TERM
OF THIS AGREEMENT.
21. OPTIONAL PROGRAMS
21.1 NECCSD may, from time to time, but with not obligation to do so, offer
various Programs to its RESELLERS. If RESELLER elects to participate in any
type of Program(s) offered by NECCSD to its Resellers, then RESELLER agrees to
comply with and be governed by the terms and conditions of such Programs(s),
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CONFIDENTIAL TREATMENT REQUESTED
including any policies and procedures applicable thereto. In all cases where
participating in such Program(s) may require RESELLER to enter into separate
agreements with third parties, or where those Programs are administered by third
parties, RESELLER agrees that NECCSD shall have not liability arising out or in
connection with said Program.
21.2 In order to be eligible to participate in NECCSD's Reseller "Optional
Programs", RESELLER shall provide NECCSD with electronic or media Point of Sale
reporting prior to the fifth business day of each calendar month. The Point of
Sale report is to include RESELLER'S prior month's sales of NECCSD PRODUCTS
identified by end-user name and address, order code/part number, and product
quantity sold. This specific format for such reports will be provided by the
Sales Program Administrator to the RESELLER.
22. CONFIDENTIALITY AND PROPRIETARY RIGHTS
22.1 Certain data or portions thereof which may be supplied by NECCSD relating
to the PRODUCTS are confidential and proprietary to NECCSD and will be so
marked. RESELLER shall abide by such markings and it shall not reproduce, use
or disclose the above described data to third parties, except as may be
authorized by NECCSD.
23. GOVERNMENT EXPORT RESTRICTION
23.1 RESELLER agrees that the PRODUCTS purchased hereunder will not be
exported directly or indirectly, separately or as part of a system without first
obtaining a license from the U.S. Department of Commerce or any other
appropriate agency of the U.S. Government, as required.
24. GOVERNMENT PROCUREMENT
24.1 No United States Government procurement terms and conditions will be
deemed included hereunder or binding on either party, unless specifically
accepted in writing and signed by both parties, or by mutual execution of the
Reseller Class Addendum - Federal.
25. INDEMNITY
25.1 RESELLER agrees to defend NECCSD against any actions, suits, or other
proceedings asserted or instituted against NECCSD and to indemnify and hold
NECCSD harmless from any and all claims, damages, and expenses of every kind and
nature, including reasonable attorney's fees, arising out of or related to (1)
any actions taken by RESELLER or any party acting on its behalf in relation to
the PRODUCTS provided under this Agreement, or (2) any claim arising out of any
negligent or wilful act of RESELLER or out of a breach or alleged breach by
RESELLER or any party acting on its behalf of the warranty of the PRODUCTS.
26. INSURANCE
26.1 The parties shall be responsible for providing Worker's Compensation
insurance in the statutory amounts required by the applicable state laws.
26.2 Each party shall maintain Commercial General Liability and/or
Comprehensive General Liability Insurance in such amounts as is reasonable and
standard for the industry. The policies should contain the following coverage:
Personal and Advertising Injury, Broad Form Property Damage, Products and
Completed Operations, Contractual Liability, employees as Insured and Fire Legal
Liability.
26.3 If requested, each party will provide evidence of the existence of
insurance coverage referred to in this Section by certificates of insurance
which should also provide for at least thirty (30) days notice of cancellation,
non-renewal or material change of coverage to the other party.
27. FORCE MAJEURE
27.1 Neither NECCSD nor RESELLER shall be liable for its failure to perform
hereunder due to "Force Majeure" conditions which shall be defined as
contingencies beyond a party's reasonable control, including, but not limited
to, weather conditions, strikes, riots, wars, fire, acts of God, or acts in
compliance with any law, order proclamation, regulation, ordinance, demand or
requirement of any governmental agency.
27.2 A party whose performance is prevented, restricted or interfered with by
reason of a Force Majeure condition so long as such party provides the other
party with prompt written notice describing the Force Majeure condition and
immediately continues performance whenever and to the extent such causes are
removed.
27.3 If, due to a Force Majeure condition, the scheduled time of delivery or
performance is or will be delayed for more than ninety (90) days after the
scheduled date, the party not relying upon the Force Majeure condition may
terminate, without liability to the other party, any purchase order or portion
thereof covering the delayed PRODUCTS.
28. APPLICABLE LAW
28.1 This Agreement will be governed by the laws of the State of California,
excluding its conflict of laws provisions.
29. ASSIGNMENT
29.1 NECCSD has entered into this Agreement with RESELLER based on NECCSD's
confidence in RESELLER, which confidence is personal in nature. RESELLER may
not assign, transfer or sell all or any of its rights under this Agreement (or
Page 9
CONFIDENTIAL TREATMENT REQUESTED
delegate all or any of its obligations hereunder) without the written consent of
NECCSD. Any other attempted assignment or transfer of all or any part of the
business conducted by RESELLER is contemplated (whether by transfer of stock,
assets or otherwise), RESELLER shall notify NECCSD in writing not less than
thirty (30) days prior to effecting such transfer, but such notice shall not
obligate NECCSD to deal with the transferee, NECCSD may assign this Agreement to
a parent, a subsidiary or an affiliated firm or to any other entity in
connection with the sale or transfer of all or substantially all of its business
assets. Subject to these restrictions, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, their successors and their
permitted assigns.
30. NOTICES
30.1 Unless otherwise agreed to by the parties, all notices required under
this Agreement shall be made personally or by certified mail, return receipt
requested, and all notices shall be addressed to the attention of the party
executing the Agreement or its successor; provided, however, that notices of
PRODUCT, price and/or discount/commission changes shall be made by regular
first-class mail.
30.2 All notices regarding this agreement shall be addressed
to:
NEC Computer Systems Division
Packard Xxxx NEC, Inc.
M.S. 150-116/Contracts
0 Xxxxxxx Xxxx Xxx
Xxxxxxxxxx, XX 00000
With a copy to:
NEC Computer Systems Division
Packard Xxxx NEC, Inc.
M.S. 150-116/Legal
0 Xxxxxxx Xxxx Xxx
Xxxxxxxxxx, XX 00000
Notices under this Agreement from NECCSD to RESELLER shall be addressed as
follows:
Xxxxxx Xxxxxxxx
---------------------------------------------------
c/o iGo Corp
---------------------------------------------------
0000 Xxxx Xxxxx
---------------------------------------------------
Xxxx, XX 00000
---------------------------------------------------
31. WAIVER
31.1 Either party's failure to enforce any provision of this Agreement will
not be deemed a waiver of that provision or of the right to enforce it in the
future.
32. SEVERABILITY
32.1 In the event that any of the provisions of this Agreement or of the
application of any such provisions to the parties hereto with respect to their
obligations hereunder shall be held by a court of competent jurisdiction to be
unlawful or unenforceable, the remaining provisions of this Agreement shall
remain in full force and effect, and shall not be affected, impaired, or
invalidated in any manner.
33. PARAGRAPH HEADINGS AND LANGUAGE INTERPRETATIONS
33.1 The paragraph headings contained herein are for reference only and shall
not be considered as substantive parts of this Agreement. The use of a singular
or plural form in this Agreement shall include the other form, and the use of a
masculine, feminine or neuter gender shall include the other genders.
34. ENTIRE AGREEMENT
34.1 This Agreement, including any Addendum(s), contains the entire and only
understanding between the parties and supersedes all prior agreements, either
written or oral, relating to the subject matter hereof. No modifications of
this Agreement, with the exception of those relating to Section 4, 6, 7, and 10,
will be binding on either party unless made in writing and signed by persons
authorized to sign agreements on behalf of RESELLER and NECCSD.
35. FORUM FOR DISPUTES AND WAIVER OF JURY TRIAL
35.1 If, during the term of this Agreement or at any time after its
termination, either NECCSD or RESELLER commences a suit, action, or other legal
proceedings against the other arising out of or in connection with this
Agreement, the breach thereof or to its termination, whether or not other
parties are also named therein, the forum of the same, including, but not
limited to, the form of the trial, shall take place in accordance with this
Section. Any action brought by either party against the other, including any
against its officers, agents, employees or ex-employees, shall be brought
exclusively in the appropriate state or federal courts located in the State of
California.
35.2 In the event that either NECCSD or RESELLER brings suit against the other
party for any matter arising out of or in connection with this Agreement and the
party which is sued is ultimately adjudicated to not have liability, then the
party bringing suit agrees to pay the other party's reasonable attorneys' fees
and litigation costs.
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CONFIDENTIAL TREATMENT REQUESTED
35.3 THE PARTIES MUTUALLY ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY RELATING
IN ANY MANNER TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT OR ITS TERMINATION
MAY INVOLVED DIFFICULT OR COMPLEX ISSUES WHICH MAY BETTER BE UNDERSTOOD BY A
JUDGE RATHER THAN A JURY. ACCORDINGLY, THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY SUCH
LITIGATION AND CONSENT TO A TRIAL BEFORE A JUDGE, SITTING WITHOUT A JURY.
36. AUTHORITY
36.1 If RESELLER is a sole proprietorship, the person executing this Agreement
represents that he or she is the sole proprietor thereof. If RESELLER is a
partnership or corporation, the person executing this Agreement represents that
he or she is either a general partner or a duly authorized corporate officer, as
the case may be, and that he or she has full authority to enter into this
Agreement on behalf of such partnership or corporation.
37. ORDER OF PRECEDENCE
37.1 Each purchase Order issued under this Agreement shall be incorporated by
reference. In the event of conflict between any of the provisions of this
Agreement, the Order of Precedence shall be as follows:
a) Reseller Class Addendum(s)
b) The Master Reseller Agreement
c) Addendum A - Commitment
d) Special Addend (when applicable)
e) Purchase Orders
NOTE: THIS AGREEMENT, INCLUDING THE WAIVER OFJURY TRIAL PROVISION, SHOULD BE
REVIEWED BY LEGAL COUNSEL BEFORE EXECUTION.
ACCEPTED BY:
Battery Express, Inc.
----------------------------------------------
RESELLER's Full Legal Name
iGo Corp
----------------------------------------------
D/B/A (if Applicable)
A Corporation
----------------------------------------------
(Corporation, Partnership, Sole Proprietorship)
of the State of ______________________________
/s/ X. Xxxxx
----------------------------------------------
Authorized Signature
Xxxxxx X. Xxxxx Xx.
----------------------------------------------
Typed or Printed Name
VP Sales & Marketing
----------------------------------------------
Title
6/18/99
----------------------------------------------
Date
NEC COMPUTER SYSTEMS DIVISION
PACKARD XXXX NEC, INC.
/s/ Xxxx Xxxxx
----------------------------------------------
Authorized Signature
Xxxx Xxxxx
----------------------------------------------
Type or Print Name
Executive VP, General Manager
----------------------------------------------
Title
6/23/99
----------------------------------------------
Date
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CONFIDENTIAL TREATMENT REQUESTED
NEC COMPUTER SYSTEMS DIVISION
AUTHORIZED RESELLER AGREEMENT
RESELLER CLASS ADDENDUM/
ADDENDUM A
ACCESSORIES PROGRAM - $4M LEVEL
This Addendum is hereby made part of the NEC Computer Systems Division
Authorized RESELLER Master Agreement Number 306552 and states the additional
-----------
Terms and Conditions under which NECCSD sells and licenses its PRODUCTS
applicable to the NECCSD Accessories Program - $4M Level ("Agreement").
The RESELLER agrees to resell NECCSD PRODUCT in accordance with the terms of
this Addendum and the RESELLER Master Agreement.
1. APPOINTMENT AND ACCEPTANCE
1.1 RESELLER's appointment as a participant in the NECCSD Accessories
Program - $4M Level is made contingent on the following criteria:
1.1.1 RESELLER is an NECCSD Authorized RESELLER and hereby agrees to an
annual net dollar volume purchase commitment level of $4,000,000.
1.1.2 The indicated commitment shall be for all purchases by RESELLER within
the "Territory" designated in the Master Agreement.
1.1.3 All PRODUCTS purchased by RESELLER, less returns and other
adjustments, will apply toward the annual net dollar volume commitment level.
1.1.4 NECCSD may, upon thirty (30) days written notice, modify the terms and
conditions of this Addendum.
1.1.5 All terms and conditions of the above-referenced Agreement shall
apply.
1.1.6 Additional programs as may be further defined in the Reseller Resource
Guide shall apply except that price protection and stock balancing will not
apply on sales of all Notebook and Mobile accessories.
2. TERM
2.1 This Addendum shall become effective on the date a duly authorized
officer or designated party of NECCSD executes this Addendum. The definition of
the initial term and criteria for automatic renewal are defined in Section 5.1
and Section 5.2 of the Reseller Master Agreement referenced above.
3. DISCOUNT
3.1 The DISCOUNT allowed for purchases by the RESELLER shall be as indicated
below:
PRODUCT PRODUCT DISCOUNT
CATEGORY LINE
[*] [*] [*]
[*] [*] [*]
These DISCOUNTS are not applicable to special pricing opportunities.
4. RELATIONSHIP
4.1 RESELLER and NECCSD agree that this Addendum does not establish a
franchise, joint venture, or partnership. RESELLER's relationship to NECCSD
remains as defined in Section 13.1 of the Reseller Master Agreement referenced
above.
5. DEFINITIONS
5.1 The definitions set forth in this Section shall apply to the respective
capitalized terms and supersede any definitions of these same terms as may be
found in the Master Agreement:
(a) "PRODUCTS" are defined as: 1) [*] and 2) [*], as listed in the then
current appropriate NECCSD Price Matrix.
(b) "DISCOUNT" is defined as the percentage listed in Section 3.1 above
deducted from the then-current Commercial Price List.
6. RESELLER OBLIGATIONS & RESPONSIBILITIES
6.1 No later than ten (10) calendar days prior to the end of each calendar
month, RESELLER shall provide NECCSD's Regional Sales Manger, or his designee, a
[*] day rolling forecast for all PRODUCT to be ordered. Orders placed for the
first month following each forecast shall be firm, non-cancelable orders which
RESELLER may not reschedule or return (subject RESELLER'S end-users rights to
return product pursuant to the NECCSD limited warranty included with the PRODUCT
and to Section 17 of the Agreement).
RCA-ADDENDUM A-ACCESSORIES PROGRAM - $4M LEVEL
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CONFIDENTIAL TREATMENT REQUESTED
RESELLER CLASS ADDENDUM/ACCESSORIES PROGRAM - $4M LEVEL
-------------------------------------------------------
6.2 RESELLER shall provide NECCSD with Sales Reports as defined in the
Reseller Resource Guide.
6.3 RESELLER shall provide a Third Party Accessories Report quarterly to
NECCSD's Regional Sales Manager, or his designee, listing all NEC accessories
sold in comparison to all third party accessories sold for NEC PRODUCTS.
6.4 RESELLER shall provide a Metrics Report quarterly to NECCSD's Regional
Sales Manager, or his designee, to include, but not limited to, average product
delivery cycle time. Measurement is from order receipt to customer ship date.
6.5 The forecast referenced in Section 6.1 and the reports referenced in
Section 6.3 and 6.4 shall be in a format as defined by NECCSD and shall be
submitted to NECCSD by a mutually agreed upon electronic delivery method.
7. NECCSD OBLIGATIONS & RESPONSIBILITIES
7.1 Incentive Rebates (IR).
7.1.1 IR of [*] will be paid to Reseller based on net purchases of PRODUCT
less returns, discounts, and any other adjustments, for Direct Reseller net
sell-in.
7.1.2 RESELLER must attain [*] of quarterly quota to receive IR for the
quarter; however, at calendar year end, if RESELLER has attained [*] of yearly
quota, NECCSD will pay IR retroactively for those quarters in which [*] of quota
was not attained and the IR was not paid.
7.1.3 IR will be paid [*] days after the end of each fiscal quarter via
check to the Reseller, or another mutually agreed upon form of reimbursement.
7.1.4 NECCSD reserves the right to withhold IR payments in the event
Reseller has an outstanding debt with NECCSD.
7.2 Shipment of PRODUCT
7.2.1 NECCSD will ship all PRODUCT ordered to a single ship-to-point within
the U.S.A. provided by RESELLER. RESELLER may, upon thirty (30) days prior
written notice to NECCSD, modify this single ship-to-point.
7.2.2 All PRODUCT ordered by RESELLER over and above the forecast volume
identified by RESELLER in accordance with Section 6.1 above, will ship on an as
available basis.
ACCEPTED BY:
Battery Express, Inc.
-------------------------------------------------------
RESELLER'S Full Legal Name
iGo Corp.
-------------------------------------------------------
D/B/A (if applicable)
A Corporation
-----------------------------------------------------
(Corporation, Partnership, Sole Proprietorship)
of the State of California
---------------------------------------
/s/ X X Xxxxx
-------------------------------------------------------
Authorized Signature
Xxxxxx X. Xxxxx Xx.
-------------------------------------------------------
Type or Print Name
VP Sales & Marketing
-------------------------------------------------------
Title
6/18/99
-------------------------------------------------------
Date
NEC COMPUTER SYSTEMS DIVISION
PACKARD XXXX, NEC, INC.
/s/ Xxxx Xxxxx
-------------------------------------------------------
Authorized Signature
Xxxx Xxxxx
-------------------------------------------------------
Type or Print Name
Executive VP, General Manager
-------------------------------------------------------
Title
6/23/99
-------------------------------------------------------
Date
RCA-ADDENDUM A-ACCESSORIES PROGRAM - $4M LEVEL
Page 2 of 2
