SERVICE and SUPPORT AGREEMENT
Exhibit
10.4
This
Service and Support Agreement is made effective as of March__, 2005 by and
between PC Products Inc., (“PCPI”) a wholly owned subsidiary of Com-Guard, Inc.
and Wintergreen Systems, a division of Market Development Specialists, Inc.,
an
Indiana corporation. Com-Guard is the Parent Company and as it pertains to
law,
is a party to this Agreement.
Under
the
terms of the Production Agreement, dated the same date as this Agreement, PCPI
has contracted with Wintergreen to assemble computer hardware for PCPI
(“Computer Systems”), using parts that PCPI either supplies to Wintergreen or
parts for which PCPI finances for purchase by Wintergreen (the “Production
Agreement”). In addition, Wintergreen will transfer certain of its sales
accounts to PCPI, for PCPI to act as the seller, under the terms of a Sales
and
Marketing Agreement dated the same date as this Agreement (“Sales and Marketing
Agreement”). This Agreement, the Sales and Marketing Agreement and the
Production Agreement (collectively, the “Transaction Agreements”) are each
inter-related, and the execution and ongoing performance of each is a portion
of
the consideration for Wintergreen to enter into each other of the Transaction
Agreements.
PCPI
and
Wintergreen now agrees as follows:
| 1. |
Hardware
Covered: Hardware
Support covers any hardware, excluding Com-Guard proprietary hardware
or
hardware proprietary to an affiliate of Com-Guard, which is factory
installed by Wintergreen on any Computer Systems (as defined in the
Production Agreement). Wintergreen will provide Hardware Support
and
Warranty for Computer Systems on a mail-in basis, on
terms and conditions identical to those currently provided to SYX
Distribution (the “Hardware Initial Period”).
|
| 2. |
Software
Covered: Software
Support covers the operating systems and applications which have
been
factory installed by Wintergreen, excluding any software provided
by
Com-Guard or any of its affiliates. Wintergreen will provide Sofware
Support and Warranty for Computer Systems on terms and conditions
identical to those currently provided to SYX Distribution (the
“Software Initial Period”).
During the Software Initial Period, Wintergreen will provide support
without charge to the end-user of all factory-installed applications,
excluding those identified above. After the Software Initial Period,
Wintergreen will offer enhanced fee-based support for factory-installed
applications paid by the end user and certain other applications
as
determined by Wintergreen in its sole
discretion.
|
| 3. |
Support
Services.
Wintergreen will provide telephone problem reporting from 7:00 AM
until
7:00 PM Eastern Standard Time, Monday through Friday, except for
Thanksgiving Day and Christmas Day. Wintergreen will staff the telephone
reporting lines with both user and technical support to assist in
diagnosing problems received by the reporting lines. Any report which
is
unable to be serviced during the telephone call shall be escalated
to a
technical support specialist within one business day.
|
| 4. |
Internet
Support.
Wintergreen may develop, in addition to the telephone based support
services, certain internet based support services.
|
| 5. |
Limits
of Support Services: THIS
AGREEMENT IS OF LIMITED DURATION AND COVERAGE. This Agreement applies
only
to Computer Systems, and exists only during the Initial Periods.
Repairs
necessitated by software problems, or as a result of alteration,
adjustment, or repair by anyone other than Wintergreen (or its
representatives) are not included. Wintergreen is not obligated to
repair
any Computer System component which has been damaged as a result
of: (i)
accident, misuse, or abuse of the System or components (such as,
but not
limited to, use of incorrect line voltages, use of incorrect fuses,
use of
incompatible devices or accessories, improper or insufficient ventilation,
or failure to follow operating instructions) by anyone other than
Wintergreen (or its representatives), (ii) an act of God such as,
but not
limited to, lightning, flooding, tornado, earthquakes, and hurricanes,
or
(iii) the moving of the Computer System from one geographic location
to
another or from one entity to another. With regard to any services
that
are not within the coverage of this Agreement, it will be within
Wintergreen’s discretion whether to perform the
services.
|
| 6. |
Third
Party Products . This
Agreement does not include warranty or repair service or any other
services for third party products. Wintergreen is not responsible
for the
performance of other vendors’ products and services. For computers
manufactured by other third parties and supplied by PCPI, Wintergreen
will
provide service and support if PCPI and Wintergreen can mutually
agree on
acceptable terms and conditions.
|
| 7. |
Pricing. PCPI
shall pay to Wintergreen ten (10) days after PCPI receives payment
from
the Account on the Computer System, the fee listed in the attached
Exhibit
“A” for warranty and technical support services (“Service Fee”).
|
| 8. |
DISCLAIMER
OF ALL WARRANTIES.
|
WINTERGREEN
MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF
ANY
HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, OR ANY EXPRESS OR IMPLIED
WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE
RESULTS OF ANY RECOMMENDATION WINTERGREEN MAY MAKE, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY,
NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES
OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION
WINTERGREEN MAY PROVIDE. NOTHING IN THIS AGREEMENT OR ANY OTHER WRITTEN
DOCUMENTATION OR ANY ORAL COMMUNICATIONS WITH CUSTOMER MAY ALTER THE TERMS
AND
CONDITIONS OF THIS PARAGRAPH. IN ADDITION, WINTERGREEN WILL NOT BE RESPONSIBLE
FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF COMPUTER SYSTEM OR
NETWORK SYSTEM.
| 9. |
Assumptions
By Wintergreen.
Where necessary, and when applicable PCPI shall procure all permissions
necessary by third party hardware and/or software vendors to allow
Wintergreen to perform the Services and Support Agreement contemplated
by
this Agreement on Computer Systems.
|
1
| 10. |
Limitation
of Liability. UNDER
NO CIRCUMSTANCES WILL WINTERGREEN OR ITS SUBCONTRACTORS BE LIABLE
FOR ANY
OF THE FOLLOWING; 1) THIRD PARTY CLAIMS FOR DAMAGES; 2) SPECIAL,
PUNITIVE,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING
BUT
NOT LIMITED TO PRODUCTS OR SYSTEMS BEING UNAVAILABLE FOR USE, LOST
PROFITS
OR SAVINGS OR LOST OR CORRUPTED DATA OR SOFTWARE, OR FOR ANY DAMAGES
FOR
PERSONAL INJURY, OR DEATH, WHETHER DIRECT, INDIRECT OR OTHERWISE,
ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, OR ARISING
OUT OF THE RESULTS OR OPERATION OF ANY SYSTEM RESULTING FROM
IMPLEMENTATION OF ANY RECOMMENDED PLAN OR DESIGN, EVEN IF WINTERGREEN
OR
ITS SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGE,
AND
EVEN IF PCPI OR THE END-USER ASSERTS OR ESTABLISHES A FAILURE OF
ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. UNDER NO
CIRCUMSTANCES WILL WINTERGREEN BE LIABLE TO PCPI OR ITS CUSTOMERS
FOR ANY
AMOUNT IN EXCESS OF THE FEES ACTUALLY RECEIVED BY WINTERGREEN FOR
THE
APPLICABLE COMPUTER SYSTEM. THIS LIMITATION OF LIABILITY APPLIES
TO ALL
TYPES OF LEGAL THEORIES, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE),
PROFESSIONAL LIABILITY, PRODUCT LIABILITY, WARRANTY, OR ANYTHING
ELSE.
THIS LIMIT ALSO APPLIES TO ANY WINTERGREEN SUBCONTRACTOR. IT IS THE
MAXIMUM AMOUNT FOR WHICH WINTERGREEN AND ITS SUBCONTRACTORS ARE
RESPONSIBLE.
|
| 11. |
Provisions
applicable to Com-Guard. Com-Guard
is the Parent Company and as it pertains to law is a party to this
Agreement. In addition, Com-Guard agrees to vote the stock of PCPI
such
that the directors of PCPI elect ▇▇▇▇ ▇▇▇▇, or such other individual(s)
as
identified by Wintergreen, to hold offices which constitute no less
than
one-half of the officers of PCPI, unless Wintergreen waives this
voting
requirement in writing. The officers of PCPI which are identified
by
Wintergreen shall have management and other responsibilities similar
to or
greater than those officers elected by PCPI which are not
identified.
|
| 12. |
Termination.
Wintergreen or PCPI may terminate this Agreement, in the
event:
|
| a. |
Insolvency
- the other party shall become insolvent or otherwise generally be
unable
to pay debts as they come due, or make a general assignment for the
benefit of creditors.
|
| b. |
Bankruptcy
- A petition under any bankruptcy act or similar statute is filed
by a
creditor of the other party or by the other party and is not vacated
within ten (10) days through court
order.
|
| c. |
Failure
to Perform - Wintergreen or PCPI fails to perform according to
the Transaction
Agreements as previously agreed upon. There shall be a 30 day notice
period in writing and a 30 day cure period for any
breach.
|
| d. |
Other
breach - Wintergreen or PCPI may terminate this Agreement if any
other
Transaction Agreement is terminated for any
reason.
|
| 13. |
Force
Majeure.
Neither PCPI nor Wintergreen shall be liable to the other for any
delay in
or failure of performance of their respective obligations hereunder
if
such performance is rendered impossible or impracticable by reason
of
fire, explosion, earthquake, drought, embargo, war, riot, act of
God or of
public enemy, an act of governmental authority, agency or entity,
or any
other similar contingency, delay, failure or cause, beyond the reasonable
control of the party whose performance is affected, irrespective
of
whether such contingency is specified herein or is presently occurring
or
anticipated by either party. In the event either party is prevented
from
fulfilling its obligations under this Agreement because of such a
force
majeure as described herein, both Wintergreen and PCPI shall make
every
effort to continue to maintain as much as possible the supplier-customer
relationship established under this Agreement. However, if PCPI or
Wintergreen is unable to meet its obligations hereunder because of
the
conditions described above, then this Agreement shall be extended
by such
time period as such conditions exist. As an example, if a condition
of
force majeure exists for 10 weeks, this Agreement shall be extended
by ten
weeks and all applicable dates in this Agreement shall be extended
by ten
weeks. No provision of this Section shall be construed to excuse
PCPI from
payment of amounts owed Wintergreen under this Agreement.
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| 14. |
Assignment.
This Agreement is not assignable without the written consent of the
other
party.
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| 15. |
Entire
Agreement.
This Agreement and the terms and conditions referenced in any purchase
order issued by PCPI in connection with this Agreement (to the extent
not
inconsistent in whole or in part with this Agreement) constitute
the
entire agreement and understanding between the parties with respect
to the
subject matters herein and therein, and supersede and replace any
and all
prior agreements and understandings, whether oral or written, between
them
with respect to such matters. Both parties agree that the terms and
conditions of any Wintergreen or PCPI quotation, offer, acknowledgment
or
similar document, however designated, shall not
apply.
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| 16. |
Waiver.
The provisions of this Agreement may be waived, altered, amended,
or
repealed in whole or in part only upon the written consent of PCPI
and
Wintergreen. The waiver by either party of any breach of this Agreement
shall not be deemed or construed as a waiver of any other breach,
whether
prior, subsequent or contemporaneous, of this
Agreement.
|
| 17. |
Severability.
Invalidation of any of the provisions contained herein, or the application
of such invalidation thereof to any person, by legislation, judgment
or
court order shall in no way affect any of the other provisions hereof
or
the application thereof to any other person, and the same shall remain
in
full force and effect, unless enforcement as so modified would be
unreasonable or grossly inequitable under all the circumstances or
would
frustrate the purposes hereof.
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| 18. |
Counterparts.
Section headings contained herein are for ease of reference only
and shall
not be given substantive effect. This Agreement may be signed in
one or
more counterparts, each to be effective as an
original.
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| 19. |
Arbitration.
In
the event of a dispute arising under this Agreement, such dispute
shall be
resolved by binding arbitration through submission of the issue to
a
member of the American Arbitration Association who is chosen by mutual
agreement of the parties. If mutual agreement cannot be reached,
then each
party shall select an arbitrator, and those arbitrators shall select
another arbitrator to act as arbitrator for the dispute. Arbitration
shall
be held in a mutually agreed upon location;
if no location shall be agreed upon, then arbitration shall be in
the
venue where the wronging party resides. Expenses
of the Arbitration shall be paid as
decided
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| 20. |
Term.
The initial term of this Agreement shall be five (5) years from the
signing of the Transaction Agreements.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by
their duly authorized representatives as of the date first set forth
above.
| PC Products, Inc. | Wintergreen Systems, by its parent, Market Development Specialists, Inc. |
| ("PCPI") | ("Wintergreen") |
| By: | By: |
| Name: | Name: |
| Title: | Title: |
EXHIBIT
A
Gross
Profit- for purpose of this Agreement and the Transaction Agreements, Gross
Profit will be defined as the difference between Sales Price and the ▇▇▇▇ of
Material cost of the product (inclusive of freight, insurance , financing fees
and license fees) without any other cost added.
Wintergreen
shall receive 10% of the Gross profit for the Sales and Marketing portion of
the
Transaction Agreements.
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