ELinux, Vendor Agreement
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0000 X. 000xx Xxxxxx
Xxxxxxxx, XX 00000
(877)-38-LINUX
xxx.xXxxxx.xxx
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This agreement is by and between Merlin Software located at "Vancouver, B.C."
(herein called "Vendor") and xXxxxx.xxx, and its affiliates located at 0000 X.
00xx Xx. xx Xxxxxxxx, XX 00000 (herein collectively called "Reseller").
1.0 APPOINTMENT OF RESELLER
1.1 Vendor grants to Reseller and Reseller accepts the non-exclusive right
to purchase and resell all products produced and/or offered by Vendor during the
term of this Agreement.
1.2 Pricing to Reseller. Vendor shall sell to Reseller at the lowest price
and/or best discount at which Vendor makes the Product available to any other
similar purchaser of equivalent volumes of the products. Reseller shall not be
required to purchase any minimum amount or quantity of the product. If Vendor
offers price discounts, promotional discounts or other special prices to its
other similar customers. Reseller shall also be entitled to participate in and
receive notice of the same no later than Vendor's other similar customers of
equivalent volumes of products.
1.3 Payment Terms. The terms on Reseller's initial order from Vendor shall
be net ninety (90) days. Subsequent order payment terms shall be net sixty (60)
days from the date of receipt of Product or the date of the payment postmark
date.
1.4 Price Adjustments. If Vendor reduces any Product price, or offers
increased discounts to any customer, Vendor will promptly credit Reseller for
the difference between the original product price and the reduced Product price
for any Product in transit to Reseller on the price reduction or increased
discount offer date and any unshipped orders, within thirty (30) days from the
effective date of the reduced price. If the credit owed exceeds Reseller's
account balance owing to Vendor, then Vendor will send a check. In the event
that Vendor shall raise the list price of a Product, all orders for such Product
placed prior to the effective date of the price increase shall be invoiced at
the lower price. Vendor shall provide Reseller with sixty (60) days advance
notice in writing of any price increases.
1.5 Participation in Pricing and Promotions. Vendor shall offer to Reseller
the opportunity to participate in any promotions, advertising funds or market
development fund program now in effect for any other similar Reseller or
distributor of equivalent volumes of the products, or in the future offered to
any other similar Reseller or distributor of equivalent volumes of the products,
at the same time and on the same terms and conditions.
2.0 PRODUCT RETURN
2.1 Stock Balancing. Reseller may return to Vendor at any time defective
products purchased from the vendor for full credit or cash in the amount of the
product's purchase price. Vendor will pay all freight charges for returned
defective products.
2.2 Product Discontinuation. Vendor shall give Reseller thirty (30) days
advance written notice of Product discontinuation. Reseller may return all such
product for full credit of Product purchases price plus all reasonable freight
charges incurred by Reseller in returning the Products.
2.3 Return Merchandise Guarantee. Vendor understands and agrees that from
time to time, Reseller will accept merchandise return for customer satisfaction
within one month from the data of sale to each customer. Such returns will be
considered defective returns. Vendor agrees to accept all such returned
merchandise for full credit to further orders only. RMS numbers will be issued
for product up to from the date of retail sale to the end user. Vendor will
pay the cost of freight on all defective returns.
3.0 VENDOR SUPPORT OBLIGATIONS
3.1 Evaluation Units. Vendor agrees to provide Reseller, free of charge, up
to five fully working units of each product, for the purpose of demonstration
and evaluation.
3.2 Support. At no charge to Reseller, Vendor shall support Product to the
end-user. Vendor shall also supply to Reseller, its employees, and its
customers reasonable amounts of sales literature, advertising materials, and
training and support in Product sales. vendor shall, at a minimum: Initially
provide to Reseller and subsequently timely update, free of charge, price
schedules, data sheets, brochures, point-of-sale aids, technical information,
instructional and other materials, online reviews, and relevant online
information in regards to the product line; Keep Reseller timely informed of
changes in product including upgrades, defects, incompatibilities, and other
relevant matters; Provide Reseller, and its End Users, where appropriate,
reasonable Product support by email or with phone assistance to the technical
staff at xXxxxx.xxx as needed.
3.3 New Product. Vendor shall endeavor to notify Reseller at least thirty
(30) days before the date any new product is introduced. Vendor shall make such
Product available for resale by Reseller no later than the date it is first
offered for sale in the marketplace.
3.4 Compatibility. Reseller shall not be held accountable for any customers
system failure issues associated with the installation of the Vendor's product.
Any issues that arise to this nature that cannot be resolved with technical
support provided by the Reseller acting reasonably, shall be referred to the
Vendor.
4.0 SHIPPING, FREIGHT AND DELIVERY
4.1 Shipping and Freight. Vendor shall ship Product pursuant to Reseller
purchase order(s) ("P.O.") PO's shall be shipped F.O.B. Reseller's designated
warehouse with risk of loss or damage to pass to Reseller upon delivery to the
U.S. based warehouse specified in Reseller's P.O. Vendor is responsible for all
costs of freight including insurance, duties, and COD charges. All shortages
shall be deducted from the invoice.
4.2 Delivery. All shipments shall arrive at Reseller's designated warehouse
within 24 hours of the promised delivery time on the P.O. or Reseller shall
receive a 2% discount on the invoice price. Reseller reserves the right to
cancel any purchase order, in whole or in part, prior to shipment.
4.3 Product Information. Vendor shall provide Reseller and subsequent
timely update, all relevant information with regard to product shipping weight,
exact dimensions, and case quantity and size.
4.4 Packaging. Vendor agrees to provide to Reseller, at no cost,
replacement packaging for all items damaged in shipping to reseller's U.S. based
warehouse. In addition, Vendor will ship product in compliance with the
following applications: Only one type, model and configuration of product shall
be shipped on a single pallet; Each unique part number will be shipped with the
same unique UPC code (i.e. the same part number will not be shipped bearing two
or more different UPC codes). Each product shall be clearly marked on the
outside of the box with its configuration and serial number. All boxes in which
product is shipped shall be constructed of at least 200 burst cardboard box
material. Vendor shall provide a packing list for each shipment showing each
purchase order and invoice included in that shipment.
5.0 ADDITIONAL TERMS
5.1 General Indemnity. Vendor shall defend, indemnify and hold harmless the
reseller from and against any loss, damage or expense, including without
limitation reasonable attorney's fees, arising from any claim, suit, judgment or
proceeding brought or asserted any third party, or any nature, arising in any
manner from, relative to or in conjunction with Vendor's acts of failure to act.
FCC Compliance - In addition to any other warranties, express or implied, Vendor
also warrants that all of its Products provided to Reseller are in full
compliance with all applicable Federal Communication Commission requirements.
Reseller shall defend, indemnify and hold harmless the reseller from and against
any loss, damage or expense, including without limitation reasonable attorney's
fees, arising from any claim, suit, judgment or proceeding brought or asserted
any third party, or any nature, arising in any manner from, relative to or in
conjunction with Reseller's acts or failure to act. FCC Compliance - In
addition to any other warranties, express or implied.
5.2 Intellectual Property Warranty, Indemnity and Authorization. Vendor
represents and warrants that it owns or is the authorized licensee of all right,
title and interest in and to any trademarks, service marks, trade , trade names,
logos, designs, copyright, patents and any other proprietary rights (the "IP
Rights") that appear on Vendor's Products, are used in connection with the
advertising or function of Vendor's Products or otherwise are associated with
Vendor's Products. Vendor shall defend, indemnify and hold harmless Reseller
from final judgments for damages by courts of competent jurisdiction, arising in
any manner from, relative to or in connection with Vendor's IP Rights. Reseller
shall have the right to participate in the defense of any claim or suit brought
against Reseller and/or Vendor related to Vendor's IP right at Reseller's sole
expense and through counsel of Reseller's choosing. Vendor hereby authorizes
Reseller to use Vendor's IP Right in Reseller's advertising, sale and
distribution of Vendor's products with Vendor's reasonable guidelines on such
use. Limitations on liability to valid U.S. patents issued as of the date of
this Agreement. Any indemnity is conditional to Reseller promptly advising
Vendor of any claim, cooperating or not, agreeing to settle or compromise the
claim without Vendor approval.
5.3 Termination. This Agreement will remain in effect until terminated by
either party without cause on 30 days notice in writing to the other party.
This Agreement may be terminated for cause within 24 hours notice in writing to
the other party. Any notice of cancellation of this Agreement shall be given in
person or via confirmed fed-ex notification.
5.4 Entire Agreement/Conflicts. This Agreement is the entire contract
between the parties, and supersedes all prior negotiation, understanding or
agreements, written or oral. The Creative computer Advertising Agreement may
supplement this Agreement, but this Agreement controls over any conflicting
terms in the Advertising Agreement, this Agreement controls. To the extent that
any term in a form or document used or prepared by Vendor differs or conflicts
with this Agreement, this Agreement controls.
5.5 Modifications. Any and all changes and additions to the above must be
agreed to in writing by both parties.
5.6 Governing Law, Jurisdiction and Venue. This Agreement is entered in
California and the substantive laws of the state of California (and not the law
regarding conflicts of law) shall govern any disputes. Any dispute arising from
this Agreement or the Advertising Agreement shall be resolved in state or
federal court in Los Angeles County, California and the parties hereby submit to
jurisdiction and venue in such courts.
5.7 Statement on Y2K Compliancy. Vendor expressly warrants and represents
that all products sold to Reseller under this Agreement will not produce
operational, logical or arithmetic inconsistencies or otherwise fail to properly
function when dealing with dates beyond 1999, the so-called Year 2000 Bug.
Vendor understands that Reseller is relying upon this warranty and
representation in purchasing product from Vendor and that but for this warranty
and representation Reseller would not purchase and resell such products. Vendor
further agrees to defend and indemnify Reseller from and against all successful
claims, demands, suits or actions against Reseller or any of its affiliated or
subsidiary companies arising out of or related to the failure of products
purchased hereunder by Reseller to properly deal with the dates beyond 1999 as
described herein. Any indemnification is conditional upon Reseller promptly
notifying cooperating in the defence thereof and not compromising or agreeing to
settlement of such claim without Vendor's consent. No liability to the extent
that failure is due to interaction with third party products, or product
customized to Resellers or End-Users specifications, or if failure is due to
modifications to products by any party other than Vendor.
/s/X. Xxxxxxxxxx V.P. Sales April 4, 2000 /s/Xxxxx Xxxx April 5th, 2000
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Vendor Representative Name/Title xXxxxx.xxx Representative Title
Vendor Representative Signature Date
Xxxxx Xxxx, Director of Marketing
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xXxxxx.xxx Signature Date
