This Agreement, made this 25th day of June, 1996, between (Seller)
Digital Equipment Corporation, with its principal place of business at
000 Xxxxxxx Xxxx, Xxxxxxx, XX., 00000-0000, and (Buyer) Delta Parts
Inc. with its' principle place of business at 00000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000, exclusively governs the purchase and sale of
computer equipment (Material). The following terms and conditions
exclusively govern the sale of all Material covered by this Agreement.
Section I - Offer and Acceptance
1. This Agreement constitutes an offer by Seller for the sale of
Material, expressly limited to the terms herein. Digital reserves the
right to revoke this offer at any time prior to its acceptance. This
offer shall expire five (5) days after its issue date unless accepted
by Buyer or extended in writing by Seller. Acceptance shall be
accomplished by return of an executed copy of this Agreement.
Acceptance by Buyer is limited to the provisions of this Agreement. No
additional or different provisions proposed by Buyer shall apply.
2. Delivery of Material shall be FOB Destination. Seller shall select
the carrier and shall pay all transportation charge. Shipment of said
material shall occur within ten (10) days of execution of this
agreement.
Section II - Pricing/Payment
1. The inventory purchase price shall be $600,000.00 as per attached.
Said payment schedule shall be as follows:
a. The initial payment of TWO HUNDRED THOUSAND DOLLARS
($200,000.00) must be paid upon execution of this Agreement
b. The second installment payment of TWO HUNDRED THOUSAND
DOLLARS ($200,000.00) will be paid via Digital Debit Memo upon
execution of this Agreement.
c. The final installment payment of the remaining balance,
estimated to be TWO HUNDRED THOUSAND DOLLARS ($200,000.00),
must be paid no later than ninety (90) days from execution of
the Agreement. Final Payment must be received by Digital no
later than September 24, 1996.
2. Buyer agrees to pay the Seller the referenced amounts commencing the
day the Sales Agreement is signed by both Buyer and Seller. Seller and
Buyer agree that inventory balances may change and said payment by
Buyer to Seller will reflect said adjustments. Buyer must reference
"Account #" (FSL) on the Check and remit to:
Digital Equipment Corporation,
000 Xxxxxxx Xx.
Xxxxxxx, XX 00000
Mail Stop 1-2/N1
Attention: Xxxx Xxxxxxx
3. Buyer acknowledges and agrees that payment shall be non-refundable,
if Buyer fails to fulfill any of its obligations set forth in this
Agreement. Further Buyer acknowledges that Material will be available
to the next highest bidder should Buyer fail to fulfill its obligations
set forth in this Agreement.
4. Buyer shall be responsible for the payment of any and all taxes
imposed upon the sale, use, or transfer of the Material purchased.
5. Buyer will pay full standard cost for material considered to be
finished goods inventory and fifteen percent (15%) of standard for
material in the defective state.
Section III - Warranties
1. Buyer acknowledges: Sale of Material is not within the normal course
of Seller's business; Material has been inspected and/or tested by
Seller to ascertain its condition, and has been refurbished or
reconditioned by Seller, and is in good, ready to use condition.
2. OTHER THAN SET FORTH ABOVE SECTION III(1),BUYER AGREES TO PURCHASE
AND ACCEPT ALL MATERIAL "AS IS" AND "WITH ALL FAULTS" AND WAIVES ALL
WARRANTIES, EXPRESS AND IMPLIED IN LAW, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN
NO EVENT SHALL SELLER HAVE ANY LIABILITY WHATSOEVER FOR DIRECT,
CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, INCLUDING
WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF DATA OR USE OR
LOSS OF PROFITS AS A RESULT OF ITS PERFORMANCE THEREUNDER OR THE USE OR
OPERATION OF THE MATERIAL PURCHASED. IN NO EVENT SHALL SELLER'S
LIABILITY FOR ANY CAUSE WHATSOEVER EXCEED THE PURCHASE PRICE PAID TO
SELLER THEREUNDER.
3. Buyer shall defend, indemnify, and hold harmless the Seller from any
claims, losses, damages, costs, and expenses (including reasonable
attorney's fees and settlement costs) against Seller resulting from
Buyer's sale, transfer, or distribution of Material.
Section IV - Confidentiality; Intellectual Property
1. Buyer shall not, without obtaining the prior written consent of
Seller, disclose, advertise, or publish the fact that Seller has
furnished, or contracted to furnish, to Buyer the Material or any other
material.
2. Seller shall have no obligations with respect to any claim that any
Material purchased under this Agreement infringes a patent, copyright,
trademark, trade secret, or any other intellectual property right in
any country where Buyer sells, directly or indirectly, the Material.
3. Buyer shall indemnify and hold Seller harmless from and against any
and all claims, losses, damages, costs and expenses (including
reasonable attorney's fees and settlement costs) arising out of or
relating to Buyer's failure to perform its obligations under this
Section IV or Buyer's possession, use, sale. or other disposition of
the Material.
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Section VI - Resale of Material
1. The Buyer will stock said inventory per the attached Program
Requirements with the expectation that a portion of said procured
inventory will be purchased back from Seller to meet Seller's business
requirements.
2. Buyer acknowledges that Seller makes no representation, express or
implied, that Material may be available for sale in the future.
Section VII - Audit
During the term of this Agreement and for six (6) months after final
payment to Seller, Seller shall have the right to audit all of Buyer's
records, accounts and inventory with respect to Buyer's performance
under this Agreement upon reasonable notice during normal business
hours. Seller shall have the right at any time during normal business
hours to enter Buyer's premises for the purposes of making an
inspection to ensure Buyer's compliance with its obligations under this
Agreement.
Section VIII - General
1. Material is sold to Buyer for commercial uses only and is not
intended to be sold or resold for use in critical safety systems or
nuclear facilities.
2. Buyer hereby acknowledges that it will not export any Material, any
written or other technical information relating thereto, or any product
incorporating the Material, without first obtaining required U.S.
Government export licenses. Buyer further acknowledges that it is
knowledgeable about U.S. Government export licensing requirements or
that it will become so prior to engaging, directly or indirectly, in
any export transaction involving the Material.
3. Buyer may not assign, transfer, or subcontract any of its rights,
duties, or obligations thereunder without the prior written consent of
Seller.
4. Buyer is an independent contractor and not an agent or employee of
Seller, and Buyer may not represent or make any commitments on behalf
of Seller.
5. Buyer agrees to ensure that all Materials and components will be
dispositioned in compliance with all applicable federal, state, local
laws, standards and requirements.
6. If any provision of this Agreement is held invalid by any law or
regulation of any government or by any court, such invalidity shall not
affect the enforceability of the other provisions herein. Any action
against Seller must be brought within eighteen (18) months after the
cause of action arises.
7. This Agreement is in addition to all prior agreements and
understandings between the parties. No change, termination, or
attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom enforcement is
sought.
8. This Agreement and the rights and obligations of the parties hereto
shall be interpreted and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
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9. Before sale of Material, Seller will verify Buyer is not found on
the Denied Parties List. No Material will be sold to any Buyer found on
this list. SBA/invoice will show verification of check by Buyer.
IN WITNESS WHEREOF, the parties have set their hands and seals this
_____________. (Month/Day/Year)
DIGITAL EQUIPMENT CORPORATION DELTA PARTS INC.
(Seller) (Buyer)
By: /s/ Xxxx Xxxxx By: /s/ Xxxx X. Xxxxx
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Xxxx Xxxxx Xxxx X. Xxxxx
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Xxxx Xxxxxxxx
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
By: /s/ Xxxx Xxxx
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Xxxx Xxxx
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