EXHIBIT 10.8
Heathkit(R)
EDUCATIONAL SYSTEMS
April 19, 1999
Please sign this contract on both pages.
Return this entire contract back to may attention and I will then send
you your completed signed contract along with the new Heathkit
Distributor Price List.
Any questions, please give me a call.
Return to:
Heathkit Company
Attn: Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Return ASAP
Thank you,
000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Ph. 000.000.000
Fx. 000.000.0000
Toll 800.253.0570
xxx.xxxxxxxx.xxx
xxxx@xxxxxxxx.xxx
RESELLER AGREEMENT
Heathkit Company, Inc. and Lab Technologies, Inc. ("Reseller") effective
as of the date written below hereby agree as follows:
1. APPOINTMENT. Heathkit appoints Reseller to exclusively sell the
products set forth in Exhibit A (individually the "Products"
collectively the "Products") to public education end users located
in the territory described in Exhibit B (the "Territory"). The
Products set forth in Exhibit A may be unilaterally deleted by
Heathkit or additional Products may be added to Exhibit A with the
mutual consent of the parties hereto.
2. RESELLER'S OBLIGATIONS. In consideration of its appointment herein,
Xxxxxxxx agrees:
(a) To use its best efforts in the Territory to promote, display,
demonstrate, and sell the Products to end-users and to promote
the reputation and good will of Heathkit and the Products.
Reseller agrees that its sales activity will involve face-to-face
pre and post sale support for end user customers in the
Territory and that it will comply with Xxxxxxxx's policies with
respect to face to face customer.
(b) To employ a sufficient number of sales and other personnel
trained to explain and demonstrate the Products and to provide
after-sale support of the Products.
(c) To participate actively in all training and other activities
which Heathkit may provide to support sales of and satisfaction with
the Products.
(d) To maintain a sufficient inventory of Products to meet demand
in the Territory for the Products, including, but not limited to,
demonstration systems and a reasonable supply of courseware and
accessories. Reseller shall sell and support all Products.
(e) To adhere to all applicable laws and regulations in
advertising, promoting, and selling the Products, and not to engage
in any false or misleading advertising or promotion of the Products.
In addition, Xxxxxxxx agrees that it will not sell or ship into
another Reseller's territory or export, either directly or
indirectly, any Product, system incorporating Products, or technical
data or information acquired under this Agreement without first
obtaining the approval of Heathkit and all necessary licenses and
other approvals of the United States government.
(f) To provide for prompt service and repair of the Products
through its own service department if it is authorized to
perform warranty service by Heathkit or through other
arrangements with Heathkit Approved Service Centers designated
by Reseller and accepted by Heathkit. Xxxxxxxx also agrees to
keep Xxxxxxxx reasonably informed of customer complaints and to
notify Heathkit promptly of any suspected Product defects or
safety problems.
(g) To use its best efforts in meeting assigned purchase and
territory improvement targets ("Targets") as described in Exhibit C
of this agreement.
3. PURCHASE ORDERS. Any purchase orders or other documents submitted
by Reseller under this Agreement shall be subject to acceptance by
Heathkit and shall be governed solely by the provisions of this
Agreement notwithstanding any different or additional items they may
contain.
4. PRICES.
(a) The price of each Product, F.O.B. Xxxxxxxx's shipping dock,
will be the Heathkit suggested retail price, less applicable
Reseller discount, prevailing at the time of shipment to Reseller,
or such other price, including a net price with no discount
applicable, as Heathkit may establish from time to time.
(b) Prices are exclusive of all sales, use, property, and the like
taxes. Any such tax Heathkit may be required to collect or pay upon
the sale or delivery of Products shall be paid or collected by
Reseller and such sums shall in turn be promptly due and payable to
Heathkit by Reseller under Xxxxxxxx's payment terms applicable to
Reseller.
(c) Heathkit reserves the right to change its prices and discounts
at any time. Xxxxxxxx agrees to notify Reseller in writing of any
price increase or discount reduction at least thirty (30) days prior
to the effective date of such change. All shipments made as of the
effective date of a price increase shall be at the new higher price;
however, in no event shall price increases apply to products which
were ordered prior to the notification of a price increase and
scheduled by Reseller for shipment prior to the effective date of
the increase.
(d) A Reseller achieving its annual targets qualifies to receive
accelerated discounts ("Accelerators") as described in Exhibit D of
this agreement.
5. PAYMENT.
(a) Subject to the approval and policies of the Heathkit Credit
Department, all invoices for purchases of Products will be payable
within thirty (30) days from invoice date. Xxxxxxxx agrees not to
make deductions of any kind from payments due without written
authorization issued by Xxxxxxxx. If Reseller fails to make
payments when due, Heathkit may withhold further deliveries until
the default has been remedied, or may require prepayment or other
payment arrangements satisfactory to Heathkit.
(b) Invoices not paid within the applicable period will be subject
to a 1 1/2% per month interest charge on any outstanding balance, or
the maximum interest allowed by law, whichever is less.
(c) A service charge of $50.00 will be applied to each returned
check. Accounts 60 days old will be placed on "Cash In Advance"
status.
(d) In the event Reseller fails to pay any part of the purchase
price when due, or in the event that proceedings in bankruptcy,
receivership, or insolvency are instituted by or against Reseller or
its property, Heathkit may, at its option, cause the entire unpaid
balance to become due and immediately payable.
6. DELIVERY.
(a) Deliveries will be F.O.B. Heathkit's shipping dock, at which
point title and risk of loss shall pass to Reseller. Shipping
and handling charges will be paid by Xxxxxxxx and billed to
Reseller. Insurance coverage on all shipments is the
responsibility of the Reseller.
(b) Heathkit shall not be liable to Reseller for any failure in
filing orders accepted by Heathkit resulting directly or indirectly
from causes beyond the control of Heathkit including, without
limitation, strikes or other labor troubles; fires, floods, delays
in the delivery or shortages or materials, parts, supplies,
transportation or other facilities; impossibility or
impracticability of making deliveries because of the total volume of
orders received by Heathkit: the whole or partial use of Heathkit
products, facilities or supplies for war or other government
purposes; or the laws or regulations of the United States, any state
or territory, or any political subdivision thereof. Any such delay
shall effect a corresponding extension of the delivery period.
7. RETURNS. No returns of Products by Reseller may be made or will be
accepted by Heathkit without authorization, including a return
authorization number, issued by Xxxxxxxx. All returns shall be made
in accordance with standard Heathkit policies therefore.
8. WARRANTY.
(a) Reseller shall deliver to its customers any written warranty
and other printed matter intended for the ultimate purchase (end
user) of the Product and furnished by Heathkit. Reseller has no
authority to obligate Heathkit on any other warranty, and any
additional warranty provided by Reseller shall be clearly and
conspicuously identified to the customer as the sole responsibility
of Reseller.
(b) WRITTEN WARRANTIES FURNISHED IN CONNECTION WITH THE PRODUCT ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARE EXPRESSLY EXCLUDED
AND NEGATED. HEATHKIT DOES NOT WARRANT ANY EQUIPMENT NOT
MANUFACTURED BY HEATHKIT.
9. SOFTWARE.
(a) Reseller agrees not to use any software provided by Heathkit
except in accordance with the license terms accompanying each
software Product. Reseller understands and acknowledges that
opening the envelope or breaking the seal on any software Product
may render Reseller an end user under the terms of the license
agreement accompanying that software Product, and may subject
Reseller to the obligations of an end user.
(b) SOFTWARE IS LICENSED (NOT SOLD). IT IS LICENSED TO RESELLERS
AND/OR END USERS WITHOUT EITHER EXPRESS OR IMPLIED WARRANTIES OF ANY
KIND ON AN "AS IS" BASIS. NEITHER THE SOFTWARE OWNER(S) NOR
HEATHKIT MAKES ANY EXPRESS OR IMPLIED WARRANTIES TO RESELLERS OR END
USERS WITH REGARD TO SOFTWARE, INCLUDING MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF PATENTS, COPYRIGHTS
OR OTHER PROPRIETARY RIGHTS OF OTHERS. NONE OF THEM SHALL HAVE ANY
LIABILITY OR RESPONSIBILITY TO CUSTOMERS FOR DAMAGES OF AN KIND,
INCLUDING SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF
OR RESULTING FROM ANY PROGRAM, SERVICES OR MATERIALS MADE AVAILABLE
HEREUNDER OR THE USE OR MODIFICATION THEREOF.
10. INFRINGEMENT. Provided Reseller gives prompt notice to Heathkit of
any claim that any Product or part thereof furnished under this
Agreement constitutes and infringement of any United States patent,
copyright, trade secret, or other proprietary right, Xxxxxxxx agrees
to defend, indemnify, and hold Reseller harmless from and against
such claim. This indemnification shall extend only to actual
damages or costs awarded in a court of law, and shall not exceed the
total purchase price to Reseller of the allegedly infringing Product
or part, nor include loss of profits or other consequential damages
suffered by Reseller.
If any Product or part is held to constitute an infringement and its
sale enjoined, Heathkit may, at its option, procure for Reseller the
right to continue selling it or modify it so as to render it non-
infringing. The provisions of this section shall not apply to any
infringement arising from use of the Product or part to practice a
method, any Product features specified by Reseller, any modification
after delivery by Heathkit, or any combination of any Product or
part with Product of another to form a system or combined Product.
At the request and expense of Heathkit, Reseller shall cooperate
with Heathkit in defending against any such action. The provisions
of this section set forth the sole obligations of Heathkit for
patent infringement and Xxxxxxxx's exclusive remedies.
11. INDEPENDENT CONTRACTOR/LEGAL RELATIONSHIP. The relationship of the
parties under this Agreement is strictly that of seller and buyer,
and nothing shall be construed to constitute Reseller as an agent
for or franchisee of Heathkit. Reseller acknowledges that it is an
independent contractor, with complete responsibility for and
discretion in the conduct of its business, and that it has no power
or authority to act as Heathkit's representative or agent, or to
transact business in the name of Heathkit, but will buy from
Heathkit and sell in Xxxxxxxx's own name for Xxxxxxxx's own account
and at Xxxxxxxx's own expense. Reseller acknowledges that it has
not been required and will not be required to pay any fee or any
other payment in lieu thereof for the right to purchase or sell
Products.
12. ASSIGNMENT.
(a) This Agreement was made in reliance upon Xxxxxxxx's ability,
financial responsibility, and adequacy of facilities. Therefore,
this Agreement and the rights and duties of Reseller hereunder are
personal and are not assignable or delegable. Any purported
assignment or delegation, without the prior written consent of
Heathkit shall be null and void.
(b) If a Reseller who is a sole proprietor or a partnership later
incorporates, such Xxxxxxxx agrees promptly to advise Heathkit's
Credit Department of the change in status to that of a corporation
by certified mail, return receipt requested.
13. TRADEMARKS AND TRADE NAMES. Reseller recognizes the exclusive
rights of Heathkit in its trademarks and trade names and the
goodwill associated therewith, and Reseller Agrees to conduct its
business in a manner consistent with the protection of such
exclusive rights. Specifically, and without limiting the foregoing,
Xxxxxxxx agrees not to use in its corporate or business name any
Heathkit trademark or trade name, unless written permission to do so
is given by Xxxxxxxx, and agrees that upon expiration or termination
of this Agreement, it will discontinue any representations that it
is a Reseller of Heathkit products.
14. TERM AND TERMINATION.
(a) The term of this Agreement shall be one year commencing on the
date of execution thereof by HEATHKIT. This Agreement shall be
automatically renewed on each subsequent anniversary date for an
additional one (1) year term unless otherwise terminated.
(b) Either party shall have the absolute right to terminate this
Agreement at any time, with or without cause, by giving the other
party thirty (30) days advance written notice. Orders received or
shipments to be made within such period prior to termination may be
subject to special credit requirements.
(c) If either party fails to perform any obligation under this
Agreement, the other party may terminate this Agreement immediately
by giving written notice of its election to do so, and such
termination will become effective immediately upon mailing or
dispatch of such notice.
(d) To the extent permitted by law, HEATHKIT may terminate this
Agreement without notice in the event that a receiver is appointed
for Reseller or it property; Reseller becomes insolvent or unable to
pay its debts or ceases to pay its debts as they mature in the
ordinary course of business, or makes an assignment for the benefit
of creditors; any proceedings are commenced by or against Reseller
under any bankruptcy; insolvency, or debtor's relief law; or
Reseller is liquidated or dissolved.
15. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
TO ANY EXTENT WHATSOEVER FOR INCIDENTAL, CONSEQUENTIAL, OR INDIRECT
DAMAGES OF ANY KIND ARISING UNDER THIS AGREEMENT, OR FOR DAMAGES,
EXPENDITURES, OR LOSS OF PROFITS OR PROSPECTIVE PROFITS ARISING OUT
OF THE TERMINATION OF THIS AGREEMENT. TERMINATION SHALL NOT,
HOWEVER, RELIEVE OR RELEASE EITHER PARTY FROM MAKING PAYMENTS WHICH
MAY BE OWING TO THE OTHER PARTY UNDER THE TERMS OF THIS AGREEMENT.
RESELLER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT IT SHALL NOT BE
ENTITLED TO ANY TERMINATION COMPENSATION FOR GOODWILL OR FOR ORDERS
FROM CUSTOMERS OBTAINED BY HEATHKIT OR ANY RESELLER AFTER
TERMINATION OF THIS AGREEMENT, REGARDLESS OF PRIOR SALES EFFORT OR
EXPENSE INCURRED BY RESELLER DURING THE TERM OF THIS AGREEMENT.
16. CONSTRUCTION OF AGREEMENT. This Agreement and written policies and
procedures issued by HEATHKIT constitute the entire agreement
between HEATHKIT and Reseller; supersede any prior communications,
representations or agreements of any kind; and may not be changed
except in writing signed by person duly authorized by the parties.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Michigan. Failure to enforce any of the
terms of this Agreement by either party shall not be deemed a waiver
or a bar to the subsequent enforcement thereof. If any provision of
this Agreement shall be held invalid, it shall not affect other
provisions which can be given effect without such provisions.
Lab Technologies, Inc. Heathkit Company, Inc.
("Reseller") ("HEATHKIT")
By: Xxxx Xxxxxx By: Xxxx Xxxxxxxx
---------------------------
/s/ XXXX XXXXXX 5/19/99 /s/ XXXX XXXXXXXX 4/16/99
------------------------------ ------------------------------
Signature Date Signature Date
Its: President Its: President
--------------------------
Title
Exhibit "B"
1999 Reseller Territory
Reseller: Lab Technologies, Inc.
PO Box 1117
Longmont, CO 80502-1117
Territory: Arizona
Colorado
New Mexico
Utah
Wyoming
By: /s/ XXXX XXXXXX Date: 5/19/99
----------------------------- ------------
Lab Technologies, Inc.
By: /s/ XXXX XXXXXXXX Date: 4/16/99
----------------------------- ------------
Heathkit Company, Inc.
Exhibit "C"
1999 Reseller Targets
Lab Technologies, Inc.
AZ, CO, NM, UT, WY
$220,000
Exhibit "D"
1999 Reseller "Accelerators"
* Resellers achieving their assigned annual targets will receive an
additional 5% commission on purchases over assigned target.
