Agreement
This AGREEMENT, made as of the 15th day of February, 2000 by and between a
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Merlin Software corporation with principal offices at ("VENDOR") and Ebiz
Enterprizes, Inc. ("Ebiz") DBA "XxxXxxxxXxxxx.xxx".
WITNESSETH
WHEREAS, Ebiz desires to purchase certain Products from VENDOR from time to
time; and
WHEREAS, VENDOR desires to sell certain Products to Ebiz in accordance with the
terms and conditions set forth in this Agreement; and
WHEREAS, VENDOR desires to appoint Ebiz as its distributor to market, sell and
distribute the Products via the internet and direct sales force;
NOW, THEREFORE, by reason of the premises and in consideration of the mutual
covenants hereinafter set forth, and other good and valuable consideration, the
parties hereby agree as follows:
1. APPOINTMENT AND AUTHORITY OF DISTRIBUTOR
(a) Appointment. Subject to the terms and conditions set forth herein,
VENDOR hereby appoints Ebiz as an authorized (exclusive/non-exclusive)
Distributor for the Products, and Ebiz hereby accepts such appointment.
(b) Independent Contractors. The relationship of VENDOR and Ebiz
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to (I) give either party the
power to direct and control the day-to-day activities of the other, or (ii)
allow either party to create or assume any obligation on behalf of the other for
any purpose whatsoever.
2. TERMS OF PURCHASE OF PRODUCTS BY DISTRIBUTOR
(a) Terms and Conditions. All purchases of Products by Ebiz from
VENDOR during the term of this Agreement shall be subject to the terms and
conditions of this agreement, except as otherwise agreed to in writing signed by
the party against whom the enforcement thereof is sought.
(b) Prices. The purchase price to Ebiz for each of the Products
("Purchase Price") shall be as set forth in Exhibit "A" attached hereto or as
otherwise agreed upon by the parties, and may be confirmed at the time of order.
Ebiz shall not be bound by any of VENDOR's suggested prices.
(c) Most Favoured Pricing and Terms. VENDOR represents that the
pricing, terms and conditions set forth in Manufacturer's current price
represents VENDOR's most favorable pricing offered to any other parties
purchasing similar quantities of the Product.
VENDOR has the right at any time to revise the prices in Exhibit "A" with thirty
(30) days advance written notice to Ebiz; provided, however, that such adjusted
pricing will continue to represent the most favorable pricing available from
VENDOR for similar distributors. VENDOR further guarantees that Ebiz shall be
entitled to the best available net pricing of any VENDOR-sponsored price
discounts, promotional discounts or other special prices and programs for
similar distributors.
(d) Price Protection. VENDOR shall grant to Ebiz a retroactive price
credit for the full amount of any VENDOR price decrease on all Products
purchased within sixty (60) days of shipment, on order, in transit on the
effective date of such price decrease. Ebiz shall, within sixty (60) days after
receiving written notice of the effective date of the price decrease, provide a
list of all Products for which it claims a credit. VENDOR shall have the right
to a reasonable audit at VENDOR's expense unless such audit discloses a
discrepancy in Ebiz's favor, in which case Ebiz pays for the audit. All orders
scheduled for shipment or in transit to Ebiz at the time of notice of the price
decrease shall be adjusted to the decreased price.
(e) Price Increase. VENDOR shall have the right to increase prices from
time to time, upon written notice to Ebiz not less than sixty (60) days prior to
the effective date of such increase.
Payment. Except as otherwise set forth herein, any undisputed sum due to Vendor
pursuant to this Agreement shall be payable as follows: net thirty (30) days
after the invoice receipt. Interest will be charged at 18% per annum on
late payments. VENDOR shall invoice Ebiz no earlier than the applicable
shipping date for the Products covered by such invoice. The due date for
payment shall be extended during any time the parties have a bona fide dispute
concerning such payment. Notwithstanding anything herein to the contrary, for
the initial order only, payment terms shall be net 90 days and Ebiz may return
any of the initial order for full credit.
(g) Cancellation and/or Reschedule of Orders. Ebiz may cancel and/or
reschedule any shipment of Product upon payment of Vendor's then standard
charges for such cancellation or rescheduling charge. Notwithstanding the
foregoing sentence, Ebiz may not after or cancel any Purchase Order for
Customized Products after such time as the Products have been altered to a point
where such Products are no longer capable of resale by VENDOR after reasonable
efforts.
(h) Product Allocation. VENDOR reserves the right to allocate its
inventory of Products in such a manner as it may determine, provided, however,
VENDOR agrees that it will use reasonable commercial efforts to provide Ebiz
with Product on a percentage equal to the same percentage as VENDOR's like
customers purchasing like volume of same Products.
3. DELIVERY AND ACCEPTANCE OF PRODUCTS
(a) Delivery. VENDOR shall use reasonable commercial efforts to deliver the
Products to Ebiz at the location shown and on the delivery date set forth in the
applicable
Purchase Order or as otherwise agreed upon by the patties. Charges for
transportation of the Products shall be paid by VENDOR.
(b) Title and Risk of Loss. FOB, Ebiz dock to include state and country
Title to Products shall pass to Ebiz at the time that the Products are delivered
to a Ebiz warehouse. All risk of loss or damage to the Products shall be borne
by VENDOR until delivery of such Products to the Ebiz warehouse. Title to the
Products remains with VENDOR until purchase price paid in full. Ebiz grants a
security interest in the Products and all proceeds to VENDOR to secure
fulfillment of Ebiz's obligations.
(c) Acceptance. Ebiz shall, within three business days of delivery,
accept each Product on the date (the "Acceptance Date") when such Products and
all necessary documentation are delivered to Ebiz in accordance with the
Purchase Order and the Product specifications. Any Products not ordered or not
otherwise in accordance with the Purchase Order, mis-shipments or over shipments
will be returned to VENDOR at VENDOR's expense (including without limitation
costs of shipment or storage) and shall promptly refund to Ebiz all monies
received by VENDOR in respect to such Products. Failure to advise VENDOR of any
such returns within such three day period, will be deemed to be accepted.
(d) Promotion and Advertising. Ebiz will participate in the
advertising and promotion of VENDOR's Products. Ebiz shall take all reasonable
and necessary action to satisfy the demand for Products and attempt to increase
the demand for Products by servicing customer accounts with reasonable
frequency, soliciting new customer accounts and cooperating in VENDOR's
advertising and sales promotional programs.
4. ADDITIONAL OBLIGATIONS OF VENDOR
(a) Materials. Upon the execution of this Agreement, at VENDOR's
expense, VENDOR shall provide Ebiz with up to 500 copies of its brochures,
instructional material, advertising literature, and other data for the Products.
A like quantity of said materials shall be provided to Ebiz, at VENDOR's
expense, for any new products added to the Products over the term of this
Agreement. Additional reasonable quantities of said materials shall be
available to Ebiz upon request.
(b) Training. VENDOR will not provide training but will provide
initial support to Ebiz and annual support to the end user.
(c) Market Development Funds/Cooperative Advertising. To assist Ebiz
in advertising and promoting the Products, VENDOR will accrue into a special
co-op advertising fund two (2%) percent of the net sales dollars received by
VENDOR from Ebiz each month. Amounts in such fund may be used by Ebiz in
connection with advertising and other promotional efforts approved b3, both
VENDOR and Ebiz.
Trade Shows. In the event of any national or regional trade show, VENDOR
shall allow reasonable access to Ebiz to VENDOR's trade booths and demonstration
stands for the purpose of promoting Ebiz's status as an authorized distributor
of VENDOR's Products. In addition, Ebiz shall have the tight to distribute, in
VENDOR's trade booths and demonstration stands at such trade shows, brochures,
pamphlets and like literature
identifying Ebiz as an authorized distributor of VENDOR's Products. Such
literature shall be submitted to VENDOR for prior approval.
5. REPLACEMENTS AND RETURNS
(b) Discontinued or Obsolete Products. VENDOR reserves the tight to
discontinue the manufacture or sale of or otherwise tender or treat as obsolete
any or all of the Products coveted by this Agreement upon at least thirty (30)
days prior notice. Ebiz may, in its discretion, within twenty (20) business
days following receipt of such notice, notify VENDOR in writing of its intention
to return any or all Products so discontinued or rendered obsolete which remain
in Ebiz's inventory, and shall receive a credit for such Products equal to the
purchase price paid by Ebiz for the same less an amount equal to 15% of the
original price paid as VENDOR's restocking charge, provided that said Products
are returned within sixty (60) days of the date of Ebiz's receipt of VENDOR's
Return Material Authorization. Ebiz shall pay all freight, shipping and
insurance charges for all such returns.
(c) Introduction of New Products. VENDOR shall give Ebiz at least
ninety (90) days prior notice of the introduction of any new Products including,
but not limited to replacement Products, new releases, enhancements or versions
of existing Products that preclude or materially limit Ebiz from selling any
Products in its inventory. VENDOR shall make such Product available to Ebiz for
distribution no later than the date it is first introduced in the marketplace to
its similar distributors.
(d) Defective Product- In the event any Products are received in a
defective condition or not in accordance with VENDOR's published specifications
or the documentation relating to such Products, Ebiz may return the Products for
full Credit. Product shall be deemed defective if the Product, or any portion
of the Product, fails to operate properly on initial "burn in", boot, or use as
applicable. Ebiz shall have the tight to return any such Products that are
returned to Ebiz from its Customers or End-Users within sixty (60) days from the
Product's initial delivery date to the End User.
Return Material Authorization/Credit Memorandums. A return material
authorization shall be issued by VENDOR within forty-eight (48) hours of any
request for the same by Ebiz when required in connection with any return under
this Agreement. VENDOR shall issue credit memos to Ebiz within thirty (30) days
upon receipt of documentation evidencing DOA/RMA returns, defective Product
returns, price protection, advertising credits or other charges due Ebiz. Ebiz
reserves the tight to set-off or charge VENDOR for the full amount due in the
event VENDOR fails to issue the credit memo within such thirty (30) day period.
6. WARRANTY
(a) Warranty. VENDOR hereby represents and warrants that the Products
conform in all respects to the express product warranties provided to the end
user. VENDOR shall extend to Ebiz and each Customer of Ebiz the same warranties
and indemnifications with respect to Products purchased and resold hereunder as
VENDOR extends to its own end
user customers. The term of warranties and indemnities extended by VENDOR to an
End User shall commence upon delivery of the Product to the End User.
(b) No Other Warranty. VENDOR has made expressed warranties in this
Agreement and in documentation, promotional and advertising materials. EXCEPT
AS SET FORTH HEREIN OR THEREIN, VENDOR DISCLAIMS ALL EXPRESS OR IMPLIED
WARRANTIES AND CONDITIONS WITH REGARD TO THE PRODUCTS, INCLUDING, WITHOUT
LIMITATION ALL IMPLIED WARRANTIES AND CONDITIONS OF DURABILITY, MERCHANTABILITY
AND FITNESS FOR PURPOSE.
7. INTELLECRUAL PROPERTY INDEMNITY
VENDOR agrees, TO INDEMNIFY Ebiz for any damage and costs awarded by a
competent court with appropriate jurisdiction in a final, non-appealable
judgement as a result of a successful claim that the software, under normal use,
infringes a valid patent issued prior to the date of this Agreement, or
infringes a valid copyright, trademark, or trade secret obligation of VENDOR,
provided that VENDOR is promptly notified of any such claim, given reasonable
assistance from Ebiz and permitted the exclusive control of the defense. VENDOR
shall have no liability for settlements incurred without its consent. Should
Ebiz's use of any such Products or any part thereof as contemplated herein be
enjoined, or in the event that VENDOR desires to minimize its liability
hereunder, VENDOR will, at its option and expense, either (i) substitute
equivalent non-infringing Products for the infringing item, (ii) modify the
infringing item so that it no longer infringes but remains equivalent, or (iii)
obtain for Ebiz the tight to continue using such item. If none of the foregoing
is feasible, VENDOR will refund to Ebiz the purchase price, plus shipping costs
paid by Ebiz for the infringing Products. The foregoing indemnity shall not
apply if and to the extent that an alleged infringement arises from the
combination of any Product with products or equipment not supplied by VENDOR, or
the alteration or modification of the Product is made by other than VENDOR.
8. PROPRIETARY RIGHTS
(a) Confidential Information. VENDOR and Ebiz each agree with the
other that it shall not use in any way or disclose to any other person or entity
any information relating to the business, customers, financial affairs or
condition of business methods of the other which shall become discernible or
available to it in any way by virtue of the dealings between the parties whether
or not specifically identified as being secret or confidential. All information
about the Products that is not in the public domain is confidential information
of VENDOR. Neither xxxxx shall use or disclose such information during the term
of this Agreement other than in the performance of its duties Hereunder and
shall not make any use of or disclose such information after termination of this
Agreement. Each party shall have the right, without the necessity of posting a
bond, to have injunctive relief against any actual or threatened breach by
either party of this Section 12. During the term of this Agreement, VENDOR
agrees not to solicit or hire any of Ebiz's employees within one (1) year after
the employee has left the employ of Ebiz and, Ebiz agrees not to solicit or
hire any of the VENDOR's employees within one (1) year after the employee has
left the employ of the VENDOR. On termination, all confidential information
will be returned.
9. TERM AND TERMINATION
(a) Term. This Agreement shall be deemed effective upon the date
hereof and shall continue for a period of one (1) year. Thereafter, this
Agreement shall renew automatically for successive one year additional terms
unless either party elects, by written notice to the other no less than ninety
(90) days prior to the expiration date of the then current term, to permit this
Agreement to expire.
**Section (b) is contradictory. I have underlined and used italics the
contradictions, and request that you explain this section.
(b) Termination for Convenience. Anything to the contrary in this
Agreement notwithstanding, this Agreement may be canceled without penalty by
either party for any reason or no reason, by giving the other party prior
written notice thirty (30) days in advance. Any such written notice shall
specifically detail the "material breach of any provision of this Agreement and
allow the defaulting party to cure such breach within thirty (30) days of
receipt-of said written notice.
(c) Termination for Insolvency or Bankruptcy. Either party may
immediately terminate this Agreement and any purchase order by giving written
notice to the other party in the event of (i) the liquidation or insolvency of
the other xxxxx, (ii) the appointment of a receiver or similar officer for the
other xxxxx, (iii) an assignment by the other party for the benefit of an or
substantially all of its credits, (iv) entry by the other party into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, or (v) the filing of a meritorious
petition in bankruptcy by or against the other party 'Under any bankruptcy or
debtor's law for its relief or reorganization.
(d) Return of Materials. All trademarks, trade names, patents,
copyrights, designs, drawings, formulas or other data, photographs, samples,
literature and sales aids of every kind shall remain the property of VENDOR,
within thirty (30) days after the termination of the Agreement, Ebiz shall
prepare all such items in its possession for shipment, as VENDOR may direct, at
VENDOR's expense. Effective upon the termination of this Agreement, Ebiz shall
cease to use all trademarks, marks, and trade-names of VENDOR; provided,
however, that Ebiz shall have the tight to use all trademarks, marks and trade
names of the VENDOR in connection with those Products in Ebiz's inventory on the
effective date of termination and which VENDOR has not repurchased pursuant to
the provisions of Section 9(e) below.
(e) Return of Inventory/Refund of MDF/Cooperative Advertising Funds
(i) Upon termination or expiration of this Agreement, by either xxxxx,
VENDOR may, at option, repurchase from Ebiz within thirty (30) days after the
effective date of termination all Products in Ebiz's inventory at Ebiz's
original purchase price. VENDOR shall pay all freight and shipping charges in
connection with such repurchases.
(ii) Notwithstanding the foregoing, VENDOR shall be required to accept. only
those Products displayed for Purposes of demonstration, Product with a return
merchandise authorization number issued by VENDOR and those Products which are
in their original factory sealed packages.
(iii) Payment of the repurchase price as hereinabove provided shall be made
by VENDOR to Ebiz either by: (a) issuance to the Ebiz of a credit corresponding
to the repurchase price to be applied to the reduction of any indebtedness of
the Ebiz to VENDOR or (b) if the repurchase price and refund shall exceed the
then current indebtedness of the Ebiz to VENDOR, by Payment of such excess to
the Ebiz within ten (10) days after the delivery of said Products to VENDOR.
Special order or Customized Products shall not be eligible for repurchase
pursuant to this section.
10. GENERAL PROVISIONS
(a) Governing Law and Jurisdiction. This Agreement shall be governed
by and construed under the laws of the State of Arizona and the Courts of
Arizona shall have nonexclusive jurisdiction and venue to adjudicate any dispute
arising out of this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter herein and
merges all prior discussions between them. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, shall be
effective unless in writing signed by the party to be charged.
(c) Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be sent by prepaid registered or certified mail, return
receipt requested, and receipt thereof shall be deemed to be two (2) days from
date postmarked.
(d) Force Majeure. Non-performance of either party shall be excused to the
extent that performance is rendered impossible by strike, fire, flood, or any
other reason excluding the lack of financial resources of the non-performing
parties where failure to perform is beyond the reasonable control of and is not
caused by the negligence of the non-performing party.
(e) Assignment. Neither party may transfer or assign their rights or
obligations under this Agreement without the prior written consent of the other
party. Such consent shall not be unreasonably withheld. Subject to the
foregoing restrictions, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
(f) Severability. If any provision of this Agreement is held invalid
by any law, sale, order or regulation of any government, or by the final
determination of any state or federal court, such invalidity shall not affect
the enforceability of any other provisions not held to be invalid.
(g) Legal/Expenses. The prevailing party in any legal action brought
by one party against the other and arising out of the remedies it may have, to
reimbursement for its expenses, including court costs and reasonable attorneys'
fees.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument. This Agreement may be executed and
forwarded via telefacsimile.
(i) Remedies. All remedies set forth in this Agreement shall be cumulative
and in addition to an not in lieu of any other remedies available to either
party at law in equity or otherwise, and may be enforced concurrently or from
time to time.
(j) Time of Performance. Time is hereby expressly made of the essence
with respect to each and every term and provision of this Agreement.
(k) Survival of Terms. Termination or expiration of this Agreement for
any reason shall not release either party from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed shall
survive any such termination or expiration, or (ii) remain to be performed or by
their nature would be intended to be applicable following any such termination
or expiration.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be signed and
delivered by its duly authorized officer or representative as of the Effective
Date.
The Linux Store EBIZ ENTERPRISES, INC
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(VENDOR)
By: /s/ Xxxxxxx X. Xxxxxx By:
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Xxxxxxx X. Xxxxxx
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(Print Name) (Print Name)
Title: President Title:
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Date: 2/14/2000 Date:
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Schedule A
Software PerfectBACKUP+ 6.2 and the following versions released during the
term of this Agreement.
Term 12 months with automatic renewal
Ebiz cost per Product 50% from Vendor's retail price. Vendor's current
retail price is $89US + $15 shipping & handling
Training Fees N/A
Technical Support Vendor will provide Support to all purchasers of the
Product
