INTERNATIONAL DISTRIBUTOR AGREEMENT
This Agreement entered into this 28th day of June, 1996 by and between
InfoImaging Technologies, Inc., (hereinafter called "COMPANY"), having its
principle place of business at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx X, Xxxx Xxxx, XX
00000, and Rexton Corporation having its principle place of business at Xxxx
Xxxx. 0X, X-Xxxxx 0-0 Xxxxxxxx, Xxxxx-Xx, Xxxxx (hereinafter called
"DISTRIBUTOR").
WITNESSETH
That THE PARTIES, in consideration of their respective promises set forth
below, agree as follows:
I. APPOINTMENT AND TERRITORY
DISTRIBUTOR accepts appointment as a exclusive DISTRIBUTOR in the country of
Japan for the purpose of marketing by way of sale or lease, or otherwise,
COMPANY'S products specified in Attachment "A", DISTRIBUTOR price list.
II. DATES OF COMING INTO FORCE AND NORMAL EXPIRATION OF THE CONTRACT
This Agreement shall become effective as of the date written above, and shall
remain in full force for a period of two (2) years unless terminated.
However, if at any time DISTRIBUTOR shall; (a) commit a breach of any material
obligation imposed upon it by this agreement, (b) default in making any
payment required hereunder, (c) become insolvent, be subject to a petition in
bankruptcy filed by or against committee or creditor, (d) assign or attempt to
assign this Agreement, (e) fail to meet minimum sales commitments as outlined
in Attachment "C", COMPANY may terminate this agreement by notifying
DISTRIBUTOR by certified mail or confirmed fax of the default. DISTRIBUTOR
shall have 30 days from this notice to cure said default(s). In the event
DISTRIBUTOR does not, termination shall take effect at the end of the thirty
(30) day period.
Such termination shall not prejudice any cause of action or claim or COMPANY
which COMPANY may have on account of any breach of this Agreement.
In the event of termination on grounds other than provisions (a) to (d) above,
DISTRIBUTOR will receive discounts, as appropriate, on all unfilled orders
placed prior to termination.
III. CONTRACTUAL PRICES
The prices at which COMPANY will sell its products to the DISTRIBUTOR are set
forth in Attachment "A". These prices are Ex COMPANY'S factory and is
exclusive of State and local taxes. COMPANY'S prices do not include sales,
use, excise, value-added or similar taxes. Consequently, in addition to the
price specified herein, DISTRIBUTOR shall pay, or reimburse COMPANY for the
gross amount of any present or future sales, use, excise, value-added or
similar tax applicable to the sale or furnishing of any services of Products
hereunder, or to their use by COMPANY with tax exemption evidence acceptable
to the tax authorities.
a. Increases
Prices are Ex COMPANY'S factory and may be changed by COMPANY by notification
in writing to the DISTRIBUTOR.
However, no price may be increased for Products purchased under a firm and
outstanding order in effect at the time of the price increase notification.
b. Reductions
If, during the term of this Agreement, COMPANY makes a general price reduction
in the prices of any of the Products, such newly established prices shall
apply
fur the duration of this Agreement or until such prices are further reduced.
IV. METHOD OF SHIPMENT
Shipment will be made Ex COMPANY'S factory. COMPANY reserves the right to
utilize any commercial mode of shipment unless otherwise specified by
DISTRIBUTOR at time of order.
V. RIGHTS AND OBLIGATIONS OF COMPANY
a. Acceptance of Orders
COMPANY agrees to accept orders placed for Products which are submitted in
compliance with this Agreement. Orders shall be considered accepted on the
mailing of their forma order acknowledgment. Shipment of all or part of the
goods ordered shall also be considered accepted on the same terms, but
shipment of an order shall not obligate COMPANY to make further shipments.
COMPANY shall have no obligation to ship unless the terms of payment are
satisfactory to COMPANY at its sole and absolute discretion, at the time of
shipment.
b. Excusable Delays
COMPANY shall not be liable for delays in delivery or performance, or for
failure to manufacture, deliver or perform, due to (1) causes beyond its
reasonable control, (2) acts of God, distributor, civil or military authority,
government priorities, strike or other labor disturbances, floods, epidemics,
war, riot, delays in transportation, (3) COMPANY'S inability to obtain
necessary materials, components, services, or facilities.
c. Marketing Support
COMPANY will supply reasonable quantities of marketing material and Product
support information to the DISTRIBUTOR at no charge for the term of this
Agreement. COMPANY will also support DISTRIBUTOR in a reasonable cooperative
advertising, exhibition and technical support programs mutually agreed upon by
both parties. COMPANY'S contribution for cooperative advertising, exhibition
and technical support will total a maximum of (*) ((*)) percent of
DISTRIBUTOR'S quarterly sales total. Allocated funds may be used at
DISTRIBUTOR'S discretion, but pre-approved by COMPANY executive.
*** Confidential Portion Omitted
d. COMPANY'S Industrial Property Rights
The DISTRIBUTOR will promptly inform COMPANY of any infringement that may come
to his notice in the course of his work in respect to patent rights,
copyright, trademark, and the like, being the property of or used by COMPANY,
and assist COMPANY'S request in taking necessary steps to defend these rights.
The DISTRIBUTOR may use COMPANY'S trademark during the life of this Agreement
solely in conjunction with the sale of the product and, upon termination of
this Agreement shall discontinue all such uses and any representations which
make it appear that DISTRIBUTOR is still handing COMPANY'S Products; provided
that the DISTRIBUTOR shall be permitted to dispose of inventory after the
termination of this Agreement for any reason other than its breach of
Contract.
e. No Power to Enter into Binding Agreements
DISTRIBUTOR shall not sign any contract in the name of COMPANY in any way to
any obligation and shall not hold itself out or purport to act as COMPANY'S
legal partner or legally empowered agent or representative for any purpose
whatsoever.
f. No Capacity to Act in the Name of InfoImaging
The relationship between COMPANY and DISTRIBUTOR created hereby is intended to
be that of vendor and vendee and, with respect to sales by COMPANY to third
parties, that of an independent distributor and not that of principal or
agent. DISTRIBUTOR shall not, and is not authorized to, enter into any
commitment on behalf of COMPANY.
g. Confidential Information
The DISTRIBUTOR and COMPANY shall maintain in confidence and not use any
business and technical information marked "Confidential", which becomes
available to either party under or in connection with this Agreement, unless
written permission is obtained from the other party. This obligation shall
continue for two (2) years after the termination of this Agreement.
h. Compliance with Laws
The COMPANY'S parties' obligations hereunder shall be at all times subject to
the exports, imports, and other laws and regulations of countries.
VI. RIGHTS AND OBLIGATIONS OF THE DISTRIBUTOR
a. Maintaining an Adequate Sales Capability
DISTRIBUTOR and DISTRIBUTOR'S customers shall maintain a sales capability to
supply and service COMPANY'S Products.
DISTRIBUTOR and DISTRIBUTOR'S customers shall stock Product in inventory
sufficient to maintain and expand sales.
b. Sales Aid and Advertising Matter
DISTRIBUTOR and DISTRIBUTOR'S customers shall effectively advertise and
promote COMPANY'S Products utilizing advertising programs in keeping with good
business practices.
c. Product Warranties
The DISTRIBUTOR accepts COMPANY'S Warranty given in Attachment "B", and agrees
that such Warranty shall commence at the date of shipment of Products.
d. Limited Warranty
Neither party will be liable for any direct, indirect, incidental,
consequential, or special damages suffered by the other party, its customers,
or others arising out of or related to this agreement or the products even if
advised of the possibility of such damages.
e. Non-Assignment of Agreement Clause
DISTRIBUTOR shall not assign all or any part of its interest in this Agreement
without the prior written consent of COMPANY and shall give COMPANY thirty
(30) days prior written notice of any transaction affecting the majority
ownership of the DISTRIBUTOR which shall be considered an assignment under
this agreement. Any attempted assignment without COMPANY'S prior written
consent will be void.
VII. GOVERNING LAWS
The rights and obligations of the parties hereunder shall be determined in
accordance with the laws of the State of California, U.S.A. excluding the body
of laws known as conflicts of law.
VIII. NOTICES
All formal notices and communications hereunder shall be sent by certified
mail, or facsimile (fax), with a copy sent by ordinary mail. It shall be
deemed to have been given the date received in the case of certified mail, on
on the receipt of facsimile (fax). Understanding that either party may from
time-to-time change the address to which notices to it are to be sent, written
notice of such change is to be given to the other party.
IX. GENERAL CLAUSE
This Agreement embodies the entire Agreement of THE PARTIES with respect to
the subject matter hereof. Any previous understanding, correspondence or
Agreement, verbal or otherwise, between THE PARTIES is of no effect, for the
amendments or modifications shall be made only in writing, specifically
referring to this Agreement and signed by THE PARTIES. In the event of
dispute between THE PARTIES, THE PARTY prevailing shall recover from THE OTHER
PARTY reasonable attorney fees and costs.
IN WITNESS WHEREOF THE PARTIES hereto have caused this Agreement to be
executed as of the date first written above, by their duly authorized officers
or representatives.
DISTRIBUTOR INFOIMAGING
"Xxxxxxx Xxxx" "Xxxxxxx Leysek"
------------------------- -------------------------
Xxxxxxx Xxxx Xxxxxxx Leysek
President President
07/06/96 07/06/96
ATTACHMENT A
CONFIDENTIAL
INTERNATIONAL DISTRIBUTOR PRICING
PRODUCT PRICE
3D Fax Professional $(*) Without User's Manual $(*)
3D Fax Standard $(*) Without User's Manual $(*)
3D Fax Personal $(*) Without User's Manual $(*)
3D Fax Basic $(*) Without Packaging $(*)
3D Fax Freeware $(*) Without Packaging $(*)
3D FaxPal $(*)
Smart Code Quoted per application
All prices are in U.S. Dollars, Ex COMPANY'S factory, Palo Alto, California,
USA.
Payment terms are Irrevocable Letter of Credit or Cash Wire Transfer.
*** Confidential Information Omitted
ATTACHMENT B
LIMITED WARRANTY
ITI warrants only (a) that the media on which the product is furnished and
protection device will be free from defects in materials and workmanship under
normal use for a period of 90 days from the date of delivery to you and (b)
that the product will operate substantially as described in the user manual
during that 90 day period.
YOU MUST ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO
ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE
PRODUCT AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE PRODUCT. ITI
DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET YOUR
REQUIREMENTS, THAT THE PROGRAM IS FIT FOR ANY PARTICULAR PURPOSE OR THAT THE
OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED, ERROR FREE OR VIRUS FREE.
Should you discover a defect in the recording medium or an error in the
product within the 90 day warranty period, then return the defective item to
ITI. Include a copy of your receipt or other proof that the warranty period
has not expired. ITI will, upon verification of the defect or error, either
repair or replace the defective item or refund the amount paid.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR
WRITTEN, ANY IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.
ATTACHMENT C
EXCLUSIVE DISTRIBUTORSHIP
TERMS, CONDITIONS AND PERFORMANCE COMMITMENTS
BETWEEN
INFOIMAGING TECHNOLOGIES, INC.
AND
REXTON CORPORATION
1. PAYMENTS AS ADVANCES ON SALES
A. No later than June 28th, 1996 Rexton will pay to the Company $(*)
((*)) U.S. dollars as an advance on sales under this agreement.
B. No later than July 22nd, 1996 Rexton will pay to the Company an additional
$(*) ((*)) U.S. dollars as an advance on sales.
C. During the term of this agreement each order, placed by Distributor and
shipped by Company, in excess of $(*), will be discounted by (*)% until the
aggregate discounts equal the total of $(*) of advances on sales
Distributor paid to Company. After such time Company will process and ship
Distributors orders at full face value.
2. ORDERS
A. Distributor will place orders for (*) ea. Business and (*) ea. Personal
versions of Japanese 3DFAX Software for delivery in June 1996.
B. Distributor will place orders for (*) ea. Business and (*) ea. Personal
versions of Japanese 3DFAX Software for delivery in July 1996.
C. Distributor agrees to do their best effort to place orders for (*)
FAXPALS for delivery in July 1996. In any event Distributor will place an
order for a minimum of (*) FAXPALS for delivery in July 1996. Product must
meet Japanese Regulatories.
*** Confidential Portion Omitted
ATTACHMENT C
3. EXCLUSIVITY AND SALES PERFORMANCE
A. Distributor sales commitments for the term of this agreement are as
follows:
July 1, 1996 - December 31, 1996 = (*)
January 1, 1997 - June 30, 1997 = (*)
July 1, 1997 - December 31, 1997 = (*)
January 1, 1998 - June 30, 1998 = (*)
July 1, 1998 - December 31, 1998 = (*)
January 1, 1999 - June 30, 1999 = (*)
B. If the first twelve month goal is met by Distributor, Company will grant
an automatic extension for a third year.
C. If Distributor fails to meet sales commitment within any six month period,
it will have the following six month period to cumulatively meet that 12 month
period commitment. Failure to do so establishes the right by the Company to
terminate the exclusive portion of this agreement under the terms of Paragraph
II.
*** Confidential Portion Omitted
