EXHIBIT 5
QMS, INC.
---------
MASTER DISTRIBUTOR AGREEMENT
----------------------------
THIS MASTER DISTRIBUTOR AGREEMENT (the "Agreement") is made as of October
16th, 1995, between QMS, INC., a Delaware corporation ("QMS"), and QMS Europe
B.V., a corporation organized under the laws of The Netherlands ("QMS Europe"),
and QMS Australia PTY Ltd., a corporation organized under the laws of Victoria,
Australia.
RECITALS:
--------
QMS manufactures and sells QMS Products (as hereinafter defined).
QMS desires to appoint QMS Europe, its wholly-owned subsidiaries and QMS
Australia as distributors to sell, individually or as a component of another
product, printer and printer related products currently manufactured and sold by
QMS and such products as may be developed, manufactured and sold by QMS from
time to time during the term of this Agreement ("Distributor Products"), and QMS
Europe, on its own behalf and on behalf of its wholly-owned subsidiaries, and
QMS Australia, each desires to accept such appointment in accordance with the
terms and conditions contained herein.
In consideration of the above premises and the covenants hereinafter set
forth, the parties hereby agree:
1. APPOINTMENT AS DISTRIBUTOR
--------------------------
1.1 APPOINTMENT. QMS Europe, its wholly-owned subsidiaries and QMS
-----------
Australia are appointed as QMS' authorized distributors to resell Distributor
Products, either individually or as a component of another product ("QMS
Products") to customers located in Europe (including the United Kingdom), the
Middle East, Africa, Australia and New Zealand (the "Territory") and QMS Europe,
on its own behalf and on behalf of its wholly-owned subsidiaries, and QMS
Australia, each accepts such appointment and agrees to conduct its business as a
distributor of QMS Products and, in the case of QMS Europe, agrees to cause its
wholly-owned subsidiaries to conduct their respective businesses as distributors
of QMS Products, at all times during the term of such appointment in accordance
with the terms of this Agreement. QMS Europe, its wholly-owned subsidiaries and
QMS Australia are hereinafter referred to, collectively, as the "Distributor."
1.2 EXCLUSIVITY.
-----------
(a) Distributor shall be QMS' sole and exclusive distributor of QMS
Products in the Territory; provided, however, that (i) if following written
-------- -------
request by QMS, Distributor shall decline to market and resell a particular
QMS Product, QMS may, thirty (30) days following receipt of the initial
request by Distributor, sell such QMS Product in the Territory or appoint
authorized distributors for the resale of such QMS Product in the
Territory.
(b) If in any calendar year Distributor shall not comply with the
Minimum Resales Requirements (as hereinafter defined), after written notice
followed by a cure period of ninety (90) days during which period the
parties will attempt to negotiate in good faith a solution for the reasons
of the shortcomings, QMS may elect to terminate the exclusivity rights
granted herein and may sell Distributor Products or appoint additional
authorized distributors of QMS Products in the Territory in lieu of
exercising its right to terminate this Agreement pursuant to Section 5.1(b)
--------------
hereof. "Minimum Resales Requirements" shall mean $60,000,000 in sales of
QMS Products per full calendar year during the term of this Agreement.
1.3 PRODUCTS OF OTHERS. Distributor shall have the right to sell and
------------------
distribute the products of others within the Territory provided that such right
shall not conflict with the interest of QMS in maximizing sales of QMS Products
in the Territory. The existence of a conflict with the interest of QMS shall
include the selling of other products that are functionally equivalent to QMS
Products and includes the improper disclosure or use of proprietary information
of QMS made available to Distributor. Distributor shall promptly give notice to
QMS of new lines of products and firms at such times as Distributor undertakes
to distribute and sell such products and/or represent such companies.
2. PURCHASE OF QMS PRODUCTS
------------------------
2.1 PURCHASE OF QMS PRODUCTS. Distributor will purchase from QMS and QMS
------------------------
will sell to Distributor the Distributor Products in such quantities as
Distributor may determine from time to time during the term of this Agreement.
All purchases of Distributor Products by Distributor shall be made solely
pursuant to this Agreement; provided, however, that Distributor may purchase
engines, spare parts and keyed consumables directly from third parties.
2.2 PRICE, PAYMENT AND DELIVERY. The purchase prices for Distributor
---------------------------
Products shall be equal to the standard cost of production of such Distributor
Products as determined by the chief financial officer of QMS (including, but not
limited to, overhead costs, research and development costs and royalty payments
made by QMS) in accordance with United States Generally Accepted Accounting
Principles ("U.S. GAAP") consistently applied and QMS' accounting policies
("Standard Cost"). Distributor shall pay QMS the purchase price for Distributor
Products no later than thirty (30) days following the date of the invoice for
such Distributor Products. Distributor Products shall be sold hereunder F.O.B.,
QMS' facility in Mobile, Alabama. Delivery shall take place when Distributor
Products are placed in the possession of a common carrier, packed and ready for
shipment to Distributor, or when Distributor Products are stored at QMS'
facility in accordance with instructions from Distributor. The risk of loss or
damage with respect to the Distributor Products shall pass to Distributor when
the Distributor Products are duly delivered to the carrier or are stored at
Seller's facility in accordance with instructions from Distributor. In the
event of a loss subsequent to delivery, Distributor shall pay for the
Distributor Products so delivered and shall (notwithstanding the loss) assume
responsibility for promptly advising the carrier and insurer of the loss, for
filing a claim and for prosecuting the recovery of any sums owed by such parties
to QMS or to Distributor. QMS shall, upon request, cooperate with Distributor
in establishing any such claim. Any arrangement made and expenses incurred by
QMS for carriage or insurance of the Distributor Products after the Distributor
Products are tendered for delivery to Distributor shall be for the
2
account of Distributor and promptly paid or reimbursed to QMS by Distributor.
At least ten (10) days prior to the confirmed shipment date, Distributor shall
give QMS written instructions regarding the destination at which the Distributor
Products are to be shipped and the choice of carrier and type of conveyance. In
the absence of such instructions, QMS shall select the carrier and type of
conveyance in conformity with QMS' standard commercial practices for such
shipments. If no ship-to location is given, then QMS will ship the Distributor
Products to Distributor's office location. To the extent not inconsistent with
the terms hereof, the terms and conditions of the invoice used by QMS in
connection with the shipment of Distributor Products hereunder are incorporated
by reference herein and shall apply as if fully recited herein.
2.3 COMMISSION. Distributor will pay a commission to QMS on all sales of
----------
QMS Products (the "Commission") in an amount equal to twelve percent (12%) of
the sale price of QMS Products sold by Distributor as shown on Distributor's
invoices excluding value added tax, freight and related charges. The Commission
shall be payable quarterly in arrears, within thirty (30) days of the end of
each quarter.
Distributor guarantees to QMS average Commissions of at least $500,000 a
month in any calendar year commencing with calendar year 1996. If in any
particular calendar year the cumulative monthly average Commissions paid by
Distributor is less than $500,000, Distributor shall make a cash payment to QMS
in an amount which, when added to the cumulative Commissions paid year-to-date,
will result in a cumulative monthly average of $500,000 (the "Shortfall").
Shortfall payments shall be made by certified or bank check or by wire transfer
within thirty (30) days of the end of the calendar month in which the Shortfall
occurred. Distributor shall receive a credit for all Shortfall payments made to
QMS during a calendar year in the amount of such Shortfall payments (the
"Credit"). If the amount of the Commission owed to QMS for any month exceeds
$500,000, Distributor may offset the amount owed to QMS in excess of $500,000
against the Credit and the Credit shall be appropriately reduced. The Credit
may only be used to offset excess Commission owed in the calendar year in which
the Shortfall related to the Credit existed.
2.4 FAILURE OF DISTRIBUTOR TO MEET OBLIGATIONS. QMS will have the right
------------------------------------------
to refuse to supply Distributor with Distributor Products in the event that
Distributor fails to comply with any of its obligations under this Agreement, or
fails to pay QMS for any purchase of Distributor Products or to make any
Commission payments when such payments are due.
2.5 DISCONTINUATION OR MODIFICATION OF DISTRIBUTOR PRODUCTS. QMS reserves
-------------------------------------------------------
the right, upon sixty (60) days prior written notice to Distributor, to
discontinue any Distributor Product. QMS also reserves the right to add, adopt
or change any Distributor Product, any QMS trademark or trade name, and any
design or specification of any Distributor Product. QMS will notify Distributor
of any material addition, adoption or change as soon as reasonably practicable.
3. OBLIGATIONS OF DISTRIBUTOR
--------------------------
3.1 CONFIDENTIALITY. From time to time, QMS may make available to
---------------
Distributor certain information, including but not limited to, information set
forth in programming, operations and service manuals, engineering and technical
data, test and analysis data, marketing, application and customer information,
and will provide Distributor schematics for new Distributor Products pursuant
3
to Section 4.4 hereof. In the event this information is considered by QMS to be
-----------
proprietary and/or confidential ("Confidential Information"), it will be so
marked when transmitted to Distributor. All Confidential Information shall
remain the sole and exclusive property of QMS, and Distributor shall have no
right to use, practice or disclose the Confidential Information except for the
purpose for which it was disclosed to Distributor. Distributor agrees to
maintain the Confidential Information in confidence during the term of this
Agreement and for a period of three (3) years thereafter and further agrees not
to divulge the same to anyone except to directors, officers, employees or agents
who require access thereto to carry out the purpose for which the Confidential
Information was disclosed and who shall have been informed of the obligation of
confidentiality set forth herein. Distributor shall be responsible for any
breach of this provision by its directors, officers, employees or agents. Upon
termination or cancellation of this Agreement, all Confidential Information, and
any copies thereof, shall be immediately physically delivered to QMS at the
address set forth in Section 7.4 hereof.
-----------
3.2 FINANCIAL STATEMENTS.
--------------------
(a) Within ninety (90) days after the end of each fiscal year of
Distributor, Distributor shall furnish QMS with an audited balance sheet of
Distributor as of the end of such fiscal year and the related statements of
income, stockholders' equity and cash flows, prepared in accordance with
Dutch Generally Accepted Accounting Principles ("Dutch GAAP") and certified
by a firm of independent public accountants of recognized national standing
selected by the Board of Directors of Distributor.
(b) Within forty-five (45) days after the end of each fiscal quarter
of Distributor (other than the last quarter in each fiscal year),
Distributor shall furnish QMS with an unaudited balance sheet of
Distributor for such fiscal quarter and related statements of income,
stockholders' equity and cash flows, prepared in accordance with Dutch GAAP
and certified by Distributor's Managing Director.
3.3 INDEMNIFICATION FOR THIRD-PARTY CLAIMS. Distributor will indemnify,
--------------------------------------
defend and hold QMS harmless from and against all liabilities, losses, damages,
claims, actions, causes of action, costs and expenses (including without
limitation attorney's fees) ("Losses") arising out of or with respect to the
activities of Distributor in performing its obligations under this Agreement
claimed by third parties except for Losses arising out of product liability
claims.
4. OBLIGATIONS OF QMS
------------------
4.1 ADVERTISING MATERIALS. QMS will provide Distributor with a reasonable
---------------------
quantity of Distributor Product manuals, brochures and other materials in the
English language to assist Distributor in the promotion and sale of QMS
Products. QMS will make additional copies of these materials available to
Distributor at a reasonable cost. QMS shall not be responsible for any
translation expense or for providing Distributor Product manuals, brochures and
other materials in any language other than English.
4
4.2 TECHNICAL ASSISTANCE. QMS will provide Distributor with reasonable
--------------------
technical assistance and information regarding Distributor Products and keep
Distributor apprised of material information regarding Distributor Products.
4.3 PRODUCT CUSTOMIZATION. At the request of Distributor, QMS will
---------------------
provide Distributor with a price quote, based on normal hourly rates for product
customization services, to customize any of the Distributor Products. If
Distributor then wishes to have a QMS Product customized for the quoted price,
it shall request such customization in writing to QMS. QMS will submit to
Distributor a statement for customization services provided which will be
payable by Distributor within thirty (30) days of the date of statement.
4.4 SCHEMATICS. QMS will provide Distributor, without charge, schematics
----------
of all future Distributor Products and enhancements of current Distributor
Products sold by Distributor.
4.5 PRODUCT WARRANTIES.
------------------
(a) Each sale of Distributor Products to Distributor shall be
warranted to provide that if there exists a product failure due to a
specific defect in workmanship or materials of the same cause and in the
same part, repetitively occurring during ninety (90) days from delivery of
the Distributor Products to Distributor in more than five percent (5%) of a
shipment lot of the Distributor Products, such failure shall be deemed an
"Epidemic Failure." Distributor will advise QMS in writing if Distributor
believes an Epidemic Failure condition exists and shall provide evidence
satisfactory to QMS, including Distributor's service log. If both parties
agree an Epidemic Failure condition exists QMS shall, at its discretion,
repair or replace the defective QMS Products.
(b) THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE MADE IN LIEU OF AND
TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
5. TERM AND TERMINATION
--------------------
5.1 TERM. The initial term of this Agreement will commence on the
----
effective date hereof and end on December 31, 2000, and will be automatically
renewed for separate but successive one-year terms, unless terminated by the
parties hereto as follows:
(a) At the end of the initial term or any subsequent one-year term
hereof by either party upon written notice to the other party received not
less than six (6) months prior to the expiration of any such term; or
(b) By either party at any time after the occurrence of any one or
more of the following events of default: (i) failure of the other party to
perform any material obligation or covenant of the other party under this
Agreement; (ii) the material breach of any warranty or representation made
by the other party in this Agreement that is not remedied as provided
herein; (iii) the entering into or filing by or against the other party of
a petition, arrangement
5
or proceeding seeking an order for relief under the bankruptcy laws of the
United States, a receivership for any of the assets of the other party, a
composition with or assignment for the benefit of its creditors, a
readjustment of debt, or the dissolution or liquidation of the other party;
or (iv) the insolvency of the other party; or
(c) By QMS, in the event of (i) the conveyance by Distributor of a
substantial portion of its assets without the prior written consent of QMS,
or (ii) a stock transfer or combination of stock transfers which result in
Jalak Investments B.V., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ and QMS collectively owning,
directly or indirectly, less than 51% of the aggregate voting power of all
outstanding voting securities of either QMS Europe or QMS Australia; or
(d) By QMS in the event Distributor does not meet the Minimum Resales
Requirements set forth in Section 1.2 hereof by written notice given within
-----------
ninety (90) days after the expiration of a ninety (90) days cure period set
forth in Section 1.2 hereof.
-----------
5.2 EFFECT OF TERMINATION.
---------------------
(a) Upon termination of this Agreement, all rights granted under this
Agreement will immediately cease and terminate. Further, Distributor will
cease all sales and distribution of QMS Products and remove from each of
its location(s) and return to QMS or destroy all promotional and other
material identifying Distributor as an authorized distributor of QMS
Products; provided, however, that Distributor will have the right to sell
-------- -------
its remaining inventory of QMS Products in accordance with the terms and
conditions of this Agreement, unless QMS will exercise its option by
written notice to Distributor on or before the effective date of such
termination, to repurchase Distributor's remaining inventory at the
price(s) paid by Distributor to QMS for such inventory (it being understood
that no Commission will be payable by Distributor on repurchases of
inventory by QMS under this Section 5.2).
-----------
(b) Upon termination of this Agreement, QMS Europe, QMS Australia and
any subsidiary of QMS Europe that has a corporate name containing the term
"QMS" shall, as soon as is reasonably practicable, take all necessary
steps, including without limitation making any necessary filings and
registrations with the appropriate governmental authorities, to change
their corporate names to remove the term "QMS," and shall choose new
corporate names which do not contain an acronym which is confusingly
similar to "QMS."
5.3 LIABILITY UPON TERMINATION. Neither party hereto will be liable to
--------------------------
the other party hereto for damages, losses, costs or expenses of any kind or
character whatsoever arising from the termination or expiration of this
Agreement, whether such damages, losses, costs or expenses arise from the loss
of prospective sales or expenses incurred or investments made in connection with
the establishment, development or maintenance of Distributor's business, or any
other reason whatsoever; provided, however, that such termination or expiration
-------- -------
will not affect any claim, demand, liability or right of either party hereto
arising pursuant to this Agreement prior to the termination or expiration, or
arising after termination or expiration in connection with sale by Distributor
of its remaining inventory of QMS Products or Distributor's obligations under
Section 3.1 of this Agreement.
-----------
6
6. DISPUTE RESOLUTION
------------------
6.1 DISPUTES RELATING TO COST OF QMS PRODUCTS.
-----------------------------------------
(a) QMS shall provide Distributor, within forty-five (45) days of the
end of each fiscal quarter, a statement signed by its Chief Financial
Officer (the "Cost Statement") detailing the calculation of the Standard
Cost of Distributor Products as charged by QMS to Distributor during the
most recent fiscal quarter.
(b) Distributor shall have the right, upon written notice to QMS
within fifteen (15) days of receipt of the Cost Statement, to request a
review of the Cost Statement. The Cost Statement shall be reviewed by an
accounting firm that is nationally recognized in the United States and that
is not affiliated with either party ("Cost Auditor"). The Cost Auditor
shall be chosen by agreement of the parties hereto. If the parties hereto
cannot agree on a Cost Auditor in a 15-day period following Distributor's
request for review, each party shall designate a U.S. nationally recognized
accounting firm, and the two firms shall, jointly, designate the Cost
Auditor.
(c) The Cost Auditor shall review the Cost Statement and shall issue a
report with respect to the calculation of Standard Cost of Distributor
Products under U.S. GAAP consistently applied and QMS' accounting policies
and the applicable provisions of this Agreement.
(d) If the Cost Auditor's report determines that the prices charged by
QMS to Distributor for Distributor Products sold to Distributor during the
quarterly period under examination were, in the aggregate, greater than
103% of the aggregate Standard Cost of such Distributor Products as
determined by the Cost Auditor, then QMS (i) shall within forty-five (45)
days of Cost Auditor's final report, repay the actual amount of the
overcharge, and (ii) shall pay all costs and expenses of selecting the Cost
Auditor and all costs and expenses and other fees charged by the Cost
Auditor in connection with it review and the issuance of its report (the
"Cost Audit Expenses"). Distributor shall pay the Cost Audit Expenses in
all other circumstances.
(e) The Cost Auditor's determination shall be final, non-appealable
and binding upon the parties hereof.
6.2 DISPUTES RELATING TO SALES OF QMS PRODUCTS.
------------------------------------------
(a) Distributor shall provide QMS, within forty-five (45) days of the
end of each fiscal quarter, a statement signed by its managing director
(the "Sales Statement") detailing the calculation of the unit volume and
dollar value of sales of QMS Products made by Distributor during the most
recent quarterly period.
(b) QMS shall have the right upon written notice to Distributor within
fifteen (15) days of receipt of the Sales Statement to request a review of
the Sales Statement. The Sales Statement shall be reviewed by an
accounting firm that is nationally recognized in The
7
Netherlands and that is not affiliated with either party ("Sales Auditor").
The Sales Auditor shall be chosen by agreement of the parties hereto. If
the parties hereto cannot agree on a Sales Auditor in a 15-day period
following QMS' request for review, each party shall designate a Dutch
nationally recognized accounting firm which shall, jointly, designate the
Sales Auditor.
(c) The Sales Auditor shall review the Sales Statement and shall issue
a report with respect to the calculation of Commissions paid on sales of
QMS Products during the fiscal quarter under the terms of this Agreement.
(d) If the Sales Auditor's report determines that the Commissions paid
by Distributor for QMS Products sold during the quarterly period under
examination were, in the aggregate, less than 97% of the aggregate
Commissions payable as determined by the Sales Auditor, then Distributor
(i) shall, within forty-five (45) days of Sales Auditor's final report, pay
the additional Commissions, and (ii) shall pay all costs and expenses of
selecting the Sales Auditor and certain expenses and other fees charged by
the Sales Auditor in connection with the Sales Audit (the "Sales Audit
Expenses"); QMS shall pay the Sales Audit Expenses in all other
circumstances.
(e) The Sales Auditor's determination shall be final, non-appealable
and binding upon the parties hereof.
6.3 ARBITRATION.
-----------
(a) All disputes under this Agreement other than those under Section
-------
6.1 and Section 6.2 hereof shall be settled by arbitration in Atlanta, Georgia,
--- -----------
U.S.A. pursuant to the American Arbitration Association Commercial Arbitration
Rules which rules are deemed to be incorporated by reference herein, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
(b) The number of arbitrators shall be three (3), each of whom shall
be disinterested in the dispute or controversy, shall have no connection with
any party hereto and shall be a person experienced in international trade and
business matters. Each party shall nominate one arbitrator and the two
arbitrators so appointed shall select a third arbitrator.
(c) Arbitration may be commenced at any time by either QMS or
Distributor giving written notice to the other that such dispute has been
referred to arbitration under this Section 6.3. Any award rendered by the
-----------
arbitrators, shall be final, conclusive, non-appealable and binding upon the
parties hereto and shall be accompanied by a written opinion of the arbitrators
giving the reasons for the awards; provided, however, that the arbitrators shall
-------- -------
have no authority to award any special indirect, incidental, consequential,
punitive or other damages not measured by the prevailing party's actual damages
and the arbitrators may not make any ruling, finding or award that does not
conform with the terms and conditions of this Agreement. Each party shall pay
its own expenses of arbitration and the expenses of the arbitrators shall be
equally shared; provided, however, that the arbitrators may assess, as part of
-------- -------
their award, all or any part of the arbitration
8
expenses of the other party (including reasonable attorneys' fees) and of the
arbitrators against the party raising such unreasonable claim, defense or
objection.
6.4 SPECIFIC PERFORMANCE. The provisions for review of Cost Statements,
--------------------
Sales Statements and arbitration shall be specifically enforceable by the
parties.
7. MISCELLANEOUS PROVISIONS
------------------------
7.1 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Exhibits
----------------------------
attached hereto constitute the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersede all prior oral or written
agreements. This Agreement may not be amended or modified, except by a further
written agreement signed by the parties hereto.
7.2 WAIVER. No failure or delay on the part of a party hereto in
------
exercising any right or remedy hereunder will operate as a waiver thereof; nor
will any single or partial exercise of any such right or remedy preclude any
other or further exercise thereof or of any other right or remedy. No provision
of this Agreement may be waived except in a writing signed by the party granting
such waiver.
7.3 ASSIGNMENT.
----------
(a) In the event of a sale or transfer by QMS of its business (by
merger, sale of stock, sale of substantially all of its assets or
otherwise)("Sale of Business"), QMS may, without the consent of
Distributor, assign its rights and obligations under this Agreement to the
ultimate successor in interest to the business of QMS (the "Successor"),
provided that the Successor agrees, in writing, to abide by the terms of
this Agreement. Failure of QMS to assign its rights and obligations under
this Agreement to the Successor in the case of a Sale of the Business, or
failure to obtain a written agreement from the Successor to such an
assignment shall constitute a breach of this Agreement.
(b) Except as set forth in paragraph (a) above, neither QMS nor
Distributor shall have the right to assign its rights and obligations under
this Agreement without the prior written consent of the other.
7.4 NOTICE. Except as otherwise specified herein, all notices,
------
communications and reports required or permitted pursuant to this Agreement will
be in writing and will be mailed, telecopied, or delivered to the other party at
the address shown below (or at such other address as may be specified hereafter
in writing by either party hereto to the other party in accordance with this
Section 7.4) and will be effective and deemed received upon the earlier of (i)
delivery or (ii) fifteen (15) days after placed in the mail.
If to QMS: QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA ▇▇▇▇▇-▇▇▇▇
Attn: Legal Department
9
with a required Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
copy to: Sixteenth Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to Distributor: Jalak Investments B.V. i.o.
c/o QMS Europe B.V.
Reactorweg 160
3542 AD Utrecht
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
The Netherlands
Attn: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
with a required Meijer c.s.
copy to: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ 's - Gravenhage
The Netherlands
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
7.5 SEVERABILITY. In the event that any one or more of the provisions, or
------------
parts of any provisions, contained in this Agreement will for any reason be held
to be invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, the same will not invalidate or otherwise affect any other
provision hereof, and this Agreement will be construed as if such invalid,
illegal or unenforceable provision, or part of any provision, had never been
contained herein.
7.6 FORCE MAJEURE. Except for the obligation of Distributor to pay for
-------------
any and all QMS Products purchased pursuant to this Agreement, neither party
hereto shall be liable for the failure to perform any of its obligations under
this Agreement if such failure is caused by the occurrence of any contingency
beyond the reasonable control of such party, including without limitation, fire,
flood, strikes and other industrial disturbances, failure of raw material
suppliers, failure of transport, accidents, wars, riots, insurrections, acts of
God or orders of governmental agencies. In the event that any such contingency
occurs which affects QMS's performance, QMS may allocate production and delivery
among its customers as it sees fit in its sole discretion and without liability
to Distributor.
7.7 GOVERNING LAW. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of Georgia.
7.8 GOVERNING LANGUAGE. Regardless of whether a copy of this Agreement is
------------------
translated into another language, the official version hereof shall be the
English version, which shall prevail in all cases. All correspondence and
communication between the parties, all reports, orders, instructions,
literature, records and other written materials pertaining to this Agreement
shall be maintained and delivered in the English language. All monetary amounts
shall be in U.S. Dollars.
10
7.9 INDEPENDENT CONTRACTOR. This Agreement does not constitute or appoint
----------------------
Distributor as an agent of QMS. Distributor is an independent contractor
hereunder, and QMS will not be liable for the debts, accounts, obligations or
other liabilities of Distributor or of its agents, employees or independent
contractors, including without limitation any costs for salaries, overhead,
transportation or communication.
The parties hereto have executed this Agreement, effective as of the day
and year first above written.
QMS: DISTRIBUTOR:
QMS, INC. QMS Europe B.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ P.P. van Schaick
------------------ ---------------------
Title: President Title: M.D.
--------------- ------------------
QMS Australia Pty Ltd.
By: /s/ P.P. van Schaick
----------------------
Title: M.D.
--------------------
11
