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Exhibit 10(a)
RESELLER AGREEMENT
This Reseller Agreement ("Agreement") dated this 2nd day of September,
1997, by and between Xxxxx U.S.A, Inc., a Delaware Corporation with offices at
000 X. Xxxxx Xxxxx Xxxx Xxxxxx, XX 00000 ("Xxxxx") and Angstrom Technologies,
Inc. a Delaware corporation with offices at 0000 Xxxxxxx Xxxxxxxx Xxxx., Xxxxx
000, Xxxxxxxx, XX 00000 ("Angstrom") are mutually desirous of entering into an
Agreement pursuant to which Angstrom will provide Xxxxx with certain products
and Xxxxx may purchase such products from Angstrom.
1. DEFINITIONS
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1.1. "Products" shall mean readers/scanners and fluorescent
inks as more fully set forth on Schedule A.
1.2 Territory shall mean the world.
1.3 Applications shall mean applications for Products
identified by Xxxxx in connection with any bid being developed by Xxxxx.
2. APPOINTMENT
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Subject to the terms and conditions set forth herein, Angstrom hereby appoints
Xxxxx as its non-exclusive reseller for the Products in the Territory. As
Angstrom's reseller, Xxxxx will have the right to obtain Products from Angstrom
and to market and distribute such Products to customers and for Applications
identified in the Territory.
3. PAYMENT
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Payment for Products will be in United States dollars and will be subject to all
applicable governmental regulations and rulings, including the withholding of
any taxes required by law.
4. TERMS AND CONDITIONS FOR SUPPLY OF PRODUCTS
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4.1 ORDERS All purchases and sales between Xxxxx and Angstrom will be
initiated by Xxxxx'x issuance of written purchase orders sent via airmail or
facsimile. Additionally, Xxxxx may initiate purchase orders verbally, provided
that it confirms such orders in writing within seven (7) shipping days. All
orders will state unit quantities, unit descriptions, requested delivery dates,
and shipping instructions. The use of any acknowledgement or other instrument by
Angstrom in connection with this Agreement shall be considered only as a
convenience for the Angstrom, and any provision therein shall not modify,
supersede or supplement the terms and conditions of this Agreement.
4.2 SHIPPING All Products delivered pursuant to the terms of this
Agreement will be suitably packed for shipment in standard containers, marked
for shipment to Xxxxx'x address set forth above or to an address specified in
Xxxxx'x purchase order, and delivered to a carrier
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or forwarding agent chosen by Xxxxx. Shipment will be F.O.B. Angstrom's
manufacturing or warehousing facility ("Delivery Point"). All freight, insurance
and other shipping expenses from the Delivery Point, as well as any special
packing expenses requested by Xxxxx will be borne by Xxxxx. Risk of loss passes
to Xxxxx on acceptance by Xxxxx.
4.3 INSPECTION AND ACCEPTANCE Xxxxx will inspect all Products for
obvious physical damage upon receipt thereof and may reject any Product that
fails in a material way. Any Product not properly rejected within thirty (30)
days of receipt of that Product (the "Rejection Period") will be deemed
accepted. To reject a Product, Xxxxx will, within the Rejection Period, notify
Angstrom of its rejection and request a return material authorization number
from Angstrom. As promptly as possible, Angstrom will, at Xxxxx'x option and
expense either replace or credit Xxxxx for the returned Products.
5. PRICE AND PAYMENT
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5.1 PRICE The purchase price to Xxxxx for Products is noted in Schedule
A, or pursuant to specific pricing as agreed to by both parties pursuant to an
alternate requirement with respect to meeting a specific customer bid.
5.2 PAYMENT Angstrom will issue invoices to Xxxxx upon shipment of
Products to Xxxxx or its customer. Xxxxx will pay such invoices within thirty
(30) days of the date of receipt of such invoice. In the event that Xxxxx
becomes more then sixty (60) days delinquent in the payment of any sum due
hereunder, Angstrom shall have right to suspend performance until such
delinquency is corrected.
5.3 PRICE CHANGES Angstrom reserves the right to revise the prices
charged for Products upon ninety (90) days notice to Xxxxx. Price increases will
apply to all purchase orders received after the effective date of the revision.
Decreases in Angstrom's list prices will apply to all accepted but unshipped
orders.
5.4 ADDITION/DELETION OF PRODUCTS Angstrom may at its own discretion
may from time to time amend Schedule A to include or delete such Products as it
deems necessary. Angstrom will provide Xxxxx with one hundred twenty (120) days
notice of such change and in the event of a deletion, Xxxxx shall have the
option of purchasing all remaining inventory or portion thereof of the
discontinued products.
5.5 TAXES All amounts due under this Section are payable in full to
Angstrom without deduction and are net of taxes (including any withholding tax)
customs duties or other charges.
6. ADDITIONAL OBLIGATIONS OF ANGSTROM
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6.1 PROMOTION OF PRODUCTS Angstrom will, at its own expense, use its
reasonable efforts to actively promote the Products. Such promotion may include
but is not limited to:
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(i) advertising the Products in trade publications,
participating in appropriate trade shows, and directly soliciting orders from
customers for the Products within the Territory;
(ii) providing adequate contact with existing and potential
customers within the Territory on a regular basis, consistent with good business
practice; and
(iii) assisting Xxxxx in assessing customer requirements for
the Products, including modifications and improvements thereto, in terms of
quality, design, functional capability, and other features.
6.2 LEAD TIMES Products will be supplied to Xxxxx in accordance with
Angstrom's published lead times or in connection with forecasts established
between Xxxxx and Angstrom.
6.3 MARKETING MATERIALS Angstrom will provide Xxxxx with marketing and
sales information concerning the Products. Upon the execution of this Agreement,
at Angstrom's expense, Angstrom will provide Xxxxx with a reasonable supply of
its brochures, instructional materials, advertising literature, and other
associated data for the Products that Angstrom deems necessary.
6.4 TRAINING Upon request, Angstrom may provide sales and marketing
training to Xxxxx'x employees free of charge at a location and manner which can
be mutually determined.
7. TERM AND TERMINATION
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7.1 This Agreement shall be in effect for five (5) years from the date
first written above (initial term), unless earlier terminated in accordance with
this Agreement. This Agreement will automatically renew for an additional one
(1) year terms, unless either party provides the other with written notice at
least ninety (90) days in advance of the end of such initial term or any such
additional term.
7.2 This Agreement may be terminated by either party upon thirty (30)
days written notice, if a party hereto (i) breaches any term or condition of
this Agreement and fails to remedy the breach within thirty (30) days after
being given notice thereof, (ii) becomes the subject of any voluntary or
involuntary proceeding under U.S. Bankruptcy Code or state insolvency proceeding
or similar proceeding or (iii) cease to be actively engaged in business.
7.3 In the event of a termination or expiration of this Agreement,
Xxxxx will have the right to terminate all outstanding purchase orders. Those
purchase orders not terminated will remain subject to the provisions of this
Agreement.
7.4 Xxxxx will not by reason of the expiration or termination of this
Agreement in accordance with the provisions of this Agreement, be liable to the
Angstrom for any compensation, reimbursement or damages whatsoever, including
without limitation loss of prospective profits or anticipated sales or on
account of expenditures, investments, leases, or
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commitments made in connection with this Agreement or the anticipation of
extended performance hereunder. In the event of such termination, Angstrom
agrees that it shall take no action whatsoever to impede the conduct of Xxxxx'x
business in the Territory or anywhere else throughout the world.
8. CONFIDENTIALITY
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8.1 Xxxxx and Angstrom are parties to a confidentiality agreement dated
October 10, 1996 the terms and conditions of which shall govern any future
disclosures.
8.2 All proprietary notices incorporated in, marked on, or fixed to the
Products by Angstrom will not be removed by Xxxxx.
9. LIABILITY XXXXX'X LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE VALUE OF
THE PRODUCTS PURCHASED IN THE PRECEDING SIX (6) MONTH PERIOD OR $10,000
WHICHEVER IS LESS. IN NO EVENT, XXXX XXXXX HAVE ANY LIABILITY FOR ANY SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION,
WHETHER OR NOT XXXXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY.
10. WARRANTIES
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10.1 Angstrom warrants for a period of one (1) year from the date of
manufacture, that all Products are free from defect in materials and workmanship
and conform substantially to specifications delivered to Xxxxx. This warranty
shall not extend to Products which Angstrom determines have been tampered with
or damaged during shipment. FURTHER, ANGSTROM DOES NOT WARRANT THAT ITS PRODUCTS
ARE FIT, LEGALLY OR OTHERWISE, FOR THEIR INTENDED PURPOSE OR USE. ANGSTROM AT
XXXXX'X OPTION SHALL REPLACE OR REWORK THE DEFECTIVE PRODUCTS OR RETURN THE
PORTION OF THE PURCHASE PRICE APPLICABLE TO THE DEFECTIVE PRODUCTS.
10.2 THE FOREGOING COMPRISES ANGSTROM'S SOLE AND ENTIRE WARRANTY, ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY
EXCLUDED.
11. INDEMNIFICATION Angstrom shall indemnify and hold Xxxxx harmless against any
losses, claims, damages, judgments, liabilities or expenses (including
reasonable attorney's fees
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and expenses) including claims of infringement as to anything arising in
connection with its performance under this Agreement or any actions, failure to
act, representations or omissions, of Angstrom, its employees, agents or
authorized assigns.
12. MISCELLANEOUS
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12.1 GOVERNING LAW This Agreement will be governed by the laws of the
State of Illinois, excluding its conflict of laws provisions and the parties
agree in the In Personam jurisdiction and exclusive subject matter jurisdiction
of the courts situated in Illinois in regard to any claim arising under this
Agreement.
12.2 RELATIONSHIP The relationship of Angstrom and Xxxxx established by
this Agreement is that of independent contractors, and nothing contained in this
Agreement shall be construed (i) to give either party the power to direct or
control the day-to-day activities of the other (ii) to constitute the parties as
partners, joint ventures, co-owners or otherwise as participants in a joint or
common undertaking to authorize either party or (iii) to make any statements or
representations or create any legal obligation on behalf of the other. All sales
and other agreements between Angstrom and its customers are the Angstrom's
exclusive responsibility and will not affect Xxxxx'x obligations under this
Agreement. Angstrom will be solely responsible for, and will indemnify, defend
and hold Xxxxx harmless against all claims, damages, and lawsuits arising from
the acts and omissions of Angstrom, its employees, servants, agents or any of
them.
12.3 ASSIGNMENT, MODIFICATION SEVERABILITY Neither party shall assign
or otherwise transfer this Agreement without the prior express written consent
of the other party, such consent not to be unreasonably withheld. This Agreement
shall not be modified or altered except by written instrument duly executed by
both parties. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
12.3.1 SUBCONTRACTOR From time to time it may be necessary to
subcontract all or a portion of this Agreement to third parties. Xxxxx agrees to
provide reasonable advance notice to Angstrom of the name of the subcontractor
for approval by Angstrom, with such approval not to be unreasonably withheld.
Xxxxx will ensure that its subcontractors execute a non-disclosure agreement
similar to that existing between Xxxxx and Angstrom and that the subcontractor
complies with all reasonable security requests made by Angstrom.
12.4 DISPUTE RESOLUTION In the event a dispute arises between Xxxxx and
Angstrom relating to this Agreement the parties agree, prior to either party
pursuing other available remedies to conduct a meeting regarding the dispute, to
be attended by representatives with decision-making authority, to attempt in
good faith to negotiate a mutually acceptable resolution of the dispute. If
within thirty (30) days after the first day of such meeting the parties have not
successfully concluded a resolution, then the parties agree to submit the
dispute to non-binding arbitration, Alternative Dispute Resolution ("ADR"),
under the then current rules of the
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American Arbitration Association applicable to the resolution of commercial
disputes in Chicago, Illinois. Arbitration shall be by three (3) arbitrators,
one to be selected by each party and the third to be selected by mutual
agreement of the parties. If no agreement is reached as to the third arbitrator,
then the American Arbitration Association shall select the third arbitrator.
Should the ADR not be agreed upon or not result in a final resolution of the
dispute then either party may pursue other available remedies.
12.5 FORCE MAJEURE Neither party shall be liable to the other for any
default hereunder if such default is caused by an event beyond such party's
reasonable control, including without limitation acts or failures to act,
strikes or labor disputes, component shortages, unavailability of
transportation, floods, fires, governmental requirements and acts of God (a
"Force Majeure Event"). In the event of threatened or actual non-performance as
a result of any of the above causes, the non-performing party will exercise
commercially reasonable efforts to avoid and cure such non-performance. The
provisions of this Section 12.5 shall not excuse Xxxxx'x or Angstrom's failure
to pay any credit or make any payment requested hereunder when due.
12.6 All notices, consents and other communications between the parties
shall be in writing and shall be sent by either first class mail, certified or
registered return receipt requested, or by facsimile transmission with the
confirmation sent via first class mail or by overnight courier to each party at
the above referenced address.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXXXX U.S.A., INC. ANGSTROM TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. Product Management & Title: President & CEO
Development
Xxxxx Document Solutions
