EXHIBIT 10.4
MITA DEALER HVC SALES
AGREEMENT
MITA COPYSTAR AMERICA, INC.
AND
IMTEK CORPORATION, d/b/a
IMTEK OFFICE SOLUTIONS
DATED: November 26, 1997
MITA DEALER HVC SALES
AGREEMENT
THIS AGREEMENT is made this 31st day of October 1997, by and between
MITA COPYSTAR AMERICA, INC., a California corporation, having its principal
place of business located at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Mita"), and Imtek Corporation, d/b/a Imtek Office
Solutions, having its principal office located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "Dealer").
SECTION I. APPOINTMENT.
(1) Mita hereby appoints Dealer as a nonexclusive dealer for certain
business equipment, and related accessories and supplies, specified in the
attached Schedule "A" (herein referred to as the "Products"), and Dealer accepts
such appointment in accordance with the terms, conditions and covenants set
forth in this Agreement. The appointment of Dealer to sell any other Mita
products not contained in Schedule "A" must be agreed upon, and acknowledged in
writing, by Mita.
(2) Dealer shall use its best efforts to promote and sell the Products
in the territory set forth in the attached Schedule "B" (herein referred to as
the "Area of Prime Responsibility"). Dealer shall not sell, lease, rent or
otherwise market the Products outside the Area of Prime Responsibility.
(3) Dealer shall not advertise or market the Products outside the Area
of Prime Responsibility. If Dealer advertises the Products along with other
merchandise in media of broader circulation, or by mailings that may reasonably
be expected to reach potential customers outside the Area of Prime
Responsibility, that advertising and those mailings must prominently state the
counties comprising the Area of Prime Responsibility, and that the Products are
sold, rented, or leased only in those counties.
(4) Dealer shall sell the Products only to retail end-users, and shall
not sell the Products to third parties for resale.
(5) If Mita intends to appoint any new dealers in the Area of Prime
Responsibility, Mita will notify Dealer of its intention, in writing, at least
thirty (30) days before any such appointments become official.
(6) Mita reserves the right to make modifications and improvements to
the Products at any time, and discontinue the manufacture and sale of any model
without incurring any liability to Dealer.
SECTION 2. MINIMUM SALES GOALS
(1) Within the Area of Prime Responsibility, Dealer will be required to
achieve certain minimum sales goals as indicated on the attached Schedule "C"
(herein referred to as "Minimum Sales Goals").
(2) The Minimum Sales Goals shall be established by Mita based upon its
evaluation of the sales potential of the Area of Prime Responsibility, taking
into consideration the Area's size and population, Dealer's previous sales
record, estimated total prior sales of copiers and Products in the Area, and
other economic and market factors pertaining to the Area. Mita shall review the
sales performance of Dealer periodically as the need arises. Mita will consult
with Dealer regarding all goals established by Mita under this Agreement, but
Mita shall have final authority in setting the Minimum Sales Goals. Any changes
in Dealer's Minimum Sales Goals shall be reflected in a new Schedule "C" sent to
Dealer by Mita.
SECTION 3. LOCATION OF DEALER.
(1) Once Dealer has established facilities in the Area of Prime
Responsibility at one or more locations mutually satisfactory to Mita and
Dealer. Dealer shall be designated as an Authorized Mita Dealer and shall
thereafter be authorized to sell the Products only at or from such locations.
(2) Dealer shall not move to or establish a new or different location
for the sale of the Products from those locations designated herein without the
prior written approval of Mita.
(3) If Dealer has branch offices located outside the Area of Prime
Responsibility, Dealer shall not show, sell, lease, rent, or otherwise market
any of the Mita Products from those branch locations or any other locations
outside its Area of Prime Responsibility.
SECTION 4. DEALER OPERATING MANUAL.
Mita shall provide Dealer with its current Mita Dealer Policy and
Procedures Manual (hereinafter referred to as the "Dealer Manual"). The
provisions of the Dealer Manual may be amended, changed, or revised by Mita,
from time to time, at its own discretion.
SECTION 5. PURCHASE.
Mita shall sell the Products to Dealer and Dealer shall purchase the
Products from Mita in accordance with the terms and conditions set forth herein
and in the Dealer Manual. Mita reserves the right to allocate the Products in a
manner deemed appropriate by Mita when such allocation may be necessary for any
reason whatsoever.
SECTION 6. PRICE.
Dealer shall pay to Mita the price for the Products set forth in Mita's
price schedule, issued from time to time, which is in effect at the time of the
acceptance of Dealer's order.
SECTION 7. PAYMENT.
All payments shall be made in accordance with the procedures set forth
in the Dealer Manual.
SECTION 8. SECURITY INTEREST.
Dealer hereby grants Mita, as security for all amounts which it now
owes Mita and all amounts it may owe Mita in the future, a continuing security
interest in all of the Mita Products, now owned or hereafter acquired, and the
proceeds thereof, as may be granted under the Uniform Commercial Code in the
jurisdiction where Dealer is located. Dealer agrees to execute a standard
security agreement, financing statements, and any and all other documents
necessary to perfect Mita's security interest herein granted by Dealer.
SECTION 9. SHIPMENT.
All shipments shall be made pursuant to procedures set forth in the
Dealer Manual.
SECTION 10. SALES PROMOTION.
(1) Dealer shall use its best efforts to promote the sale, lease and
rental of the Products through marketing programs that include thoroughly
trained sales personnel who are familiar with the Products. Dealer shall conform
with and carry out the marketing programs and policies of Mita as announced by
Mita in writing from time to time.
(2) Dealer shall make no statement which contains representations with
respect to the Products which exceed the specifications approved in writing by
Mita. Dealer shall not make any false, misleading or deceptive representations
to anyone or engage in any unfair trade practices. Dealer shall be solely
responsible for the actions of its sales personnel and representatives. Dealer
shall indemnify and hold Mita harmless from any and all liability or damages
that may result from a breach of this Section.
SECTION 11. SERVICE OBLIGATION.
(1) The Dealer shall provide prompt, professional, willing, and
courteous service to the end-users of the Products in the Area of Prime
Responsibility. Dealer's service duties shall include after-sale inspection;
repairs; warranty and special service requirements; furnishing parts, supplies
and accessories; and providing operating and maintenance instructions to end-
users of the Product.
(2) The Dealer shall: a) establish and maintain a qualified service
staff trained for the Products; b) send its maintenance personnel to such
schools as Mita shall offer from time to time; c) maintain an adequate inventory
of Mita brand spare parts and supplies to perform its service obligation; d)
purchase Mita parts kits when Dealer makes its initial purchase of a copier
model; and e) not sell parts and supplies which do not work properly in the Mita
copiers or which fail to meet Mita's specifications. Dealer agrees to make
annual contract service available at industry--wide competitive rates for the
products sold by Dealer, Mita, or other Authorized Dealers for use within the
Area of Prime Responsibility.
(3) Dealer shall not alter or remove any serial numbers or labels from
the Products, and Dealer shall not alter any copy counter found in the Products.
SECTION 12. WARRANTIES.
(1) The Products, parts and accessories are warranted to Dealer and
end-users only to the extent of and in accordance with the conditions set forth
in any current applicable warranty statement which may be published by Mita with
respect to any particular model, unit or item as to Dealers and end-users. Mita
shall make its current applicable warranty statement available to Dealer in
connection with Dealer's purchase of the products. There are no warranties on
any Products, parts or accessories beyond those set forth in the current
applicable warranty statement published by Mita in the Dealer Manual.
(2) Dealer agrees to incorporate the Mita Limited Warranty packaged with
certain Products, in each of its agreements for sale to the end-user. As an
integral part of its obligation. Dealer will perform without charge to the
end-user or to Mita, such service as may be required to fulfill the provisions
of Mita's warranties. For performing such service. Mita will credit Dealer's
parts account for the parts returned which are covered under Mita's warranty in
accordance with the then existing warranty policies and procedures. Dealer's
labor and labor costs are expressly excluded. Further, Dealer will perform such
reasonable, mandatory or special service programs for the Products as Mita may
request from time to time.
(3) ANY CURRENT WARRANTY PUBLISHED BY MITA IS IN LIEU OF ANY AND ALL
OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, MITA
SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
IN CONNECTION WITH THE SALE OF ANY ITEM, TO DEALER, OR OTHERWISE.
(4) Mita's liability, if any, shall in all events be limited to repair
or replacement of any defective Products, parts or accessories, all to the
extent set forth in any current applicable warranty statement, and Dealer's
rights to obtain repair or replacement pursuant to any such warranty statement
shall be the Dealer's sole and exclusive remedy. Without limiting any of the
foregoing, Mita shall incur no liability to Dealer or any customer of Dealer
arising out of any contract or arrangement between Dealer and any of its
customers, unless Mita shall expressly and in writing agree to the contrary.
SECTION 13. INTERTERRITORIAL TRANSACTIONS.
In the Event that Dealer enters into an agreement in the Area of Prime
Responsibility for the sale, lease or rental of Products for use outside the
Area of Prime Responsibility, Dealer shall immediately make appropriate
arrangements to have installation and warranty service provided by another
Authorized dealer. Dealer shall pay such other dealer an interterritorial
allowance as set forth in the Dealer Manual. This allowance is designated to
give the recipient dealer reasonable compensation for services to be performed.
SECTION 14. NATIONAL AND GOVERNMENT ACCOUNTS.
If Mita requests, Dealer will service Mita's National and Government
Accounts located in the Area of Prime Responsibility, and Mita agrees to
compensate Dealer for such service, and Dealer accepts the compensation and
terms and conditions of Mita's National Account Representative Program, as
amended from time to time. Further, Mita in its sole discretion reserves the
right to add or remove Dealer's name from Mita Dealer Service Locations listed
in Mita's Federal Supply Schedule with the General Services Administration
Federal Supply Service (GSA Schedule).
SECTION 15. TRADEMARK LICENSE.
(1) Mita grants to Dealer, during the term of this Agreement, a
non-exclusive license to use the trademarks "Mita" and the "MITA" logo and the
words "Authorized Mita Dealer." Dealer shall not use Mita's trademarks as part
of its corporate, trade, or other business name; or in any manner not approved
or authorized by Mita: or in any manner in which Mita concludes, in its sole
judgment, is confusing or misleading, or reflects negatively on the quality or
goodwill associated with the trademarks or Mita.
(2) Dealer acknowledges the validity of the Mita trademarks and other
trade names affixed to the Products and that such trademarks and trade names are
exclusively owned by Mita or its parent company. Dealer further acknowledges
that considerable time and money have been expended to create the goodwill
associated with the Mita trademarks and that such goodwill belongs to Mita.
Nothing contained herein shall give Dealer any interest or right in the
trademarks or other trade names affixed to the Products except as is expressly
granted herein.
(3) Dealer shall not alter or remove the Mita trademarks from any of the
Products or affix any other name or marks to the Products.
SECTION 16. SCOPE OF AUTHORITY.
(1) Dealer shall not assume obligations in the name of or on account of
Mita or accept payment for any part of an obligation due to Mita, except such as
are expressly authorized by Mita. Dealer shall indemnify and hold Mita harmless
from and against any and all liabilities or obligations not authorized by Mita.
(2) It is expressly understood that the sole relationship of the parties
hereto is that of principal and independent contractor, and that Dealer has not
been granted a franchise.
SECTION 17. COMMENCEMENT.
The term of this Agreement shall commence on the execution of this
Agreement as indicated above.
SECTION 18. TERMINATION.
(1) Dealer may terminate this Agreement at any time by giving Mita not
less than thirty (30) days prior written notice.
(2) Notwithstanding anything herein to the contrary, this Agreement may
be terminated by Mita for any of the following reasons upon giving Dealer not
less than thirty (30) days prior written notice:
(a) Failure of Dealer to fulfill or perform any one or more of its
convenants obligations, duties,or responsibilities described
in this Agreement or in the Dealer Manual.
(b) Any substantial change in the operating management of Dealer, or
any sale, transfer or relinquishment of any substantial interest
in the direct or indirect ownership of Dealer or its business.
(3) This Agreement shall automatically terminate in the event Dealer
shall suffer or assume any bankruptcy, arrangement, reorganization or
insolvency proceeding or make a general assignment for the benefit of creditors;
or Dealer shall fail in making payments when due to Mita, or Dealer shall
attempt any transfer in violation of Section 22 hereof.
(4) Termination of this Agreement shall not relieve Dealer from its
obligations which shall have accrued pursuant to the provisions of this
Agreement, or release the parties hereto from any obligations which may have
been incurred as a result of operations conducted under this Agreement.
(5) Upon termination of this Agreement, if Dealer's account with Mita
is current, Mita is current, Mita will continue to sell to Dealer parts and
supplies for the Products for three years from date of Dealer's last purchase of
the copier model the parts and supplies are related to, at Dealer prices in
effect at the time of the order.
(6) Upon termination of this Agreement, Dealer, at its expense shall
immediately discontinue the use of, and remove from its business locations
vehicles, stationery, advertisements, etc., any Mita trademarks licensed under
this Agreement.
SECTION 19. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or
breach thereof shall be settled by arbitration in Bergen County, New Jersey, in
accordance with the Rules of the American Arbitration Association, and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction.
SECTION 20. COMPLIANCE WITH LAWS.
Dealer shall conduct and maintain, at all times, its activities and
business operation in strict compliance with all federal and state laws and
regulations, count and city ordinances and regulations, or ordinances applicable
thereto. Dealer shall be responsible for and shall pay promptly when due any and
all taxes, levies, and assessments upon any Products in Dealer's inventory,
whether paid for or not.
SECTION 21. NONDISCLOSURE.
During the period of this Agreement, Dealer agrees not to divulge the
names of any customers of Mita or any trade secrets which Mita has disclosed to
Dealer. Within thirty (30) days after the termination of this Agreement. Dealer
shall deliver to Mita all documents, materials and samples Mita may have
furnished to Dealer relating to its business; provided, that Dealer may retain
technical bulletins and service manuals for as long as Dealer is providing
service to persons who have purchased the products from Dealer in a manner that
is satisfactory to Mita.
SECTION 22. ASSIGNMENT.
This Agreement shall not be assignable or transferrable in any manner
whatsoever without the consent in writing of Mita.
SECTION 23. FORCE MAJEURE.
Mita shall not be liable for any failure to perform any part of this
Agreement arising out of compliance with any law, ordinance, regulation,
ruling, orders or other governmental action or arising out of acts of God,
fire, flood, war, sabotage, accidents, labor disputes, shortage, or failure of
supply of materials or equipment, interruption of or delay in transportation,
or any other circumstances of like nature beyond its control.
SECTION 24. NOTICES.
All notices required or permitted to be given or made under this
Agreement may be effected by personal delivery in writing or by registered or
certified mail, postage prepaid, return receipt requested and shall be deemed
communicated three (3) days from the mailing thereof. Mailed notices shall be
addressed to the parties as their addresses appear above, but each party may
change his address by written notice in accordance with this paragraph.
SECTION 25. NONWAIVER OF RIGHTS.
Failure of either party hereto to enforce any of the provisions of this
Agreement or any rights with respect thereto or failure to exercise any
election provided for herein shall in no way be considered to be a waiver of
such provisions rights or elections or in any way affect the validity of this
Agreement.
SECTION 26. ENTIRE AGREEMENT.
This Agreement supersedes any and all other agreements, either oral or
written, between the parties hereto with respect to the Products and contains
all of the convenants and agreements between the parties with respect to said
matter. This Agreement may not be altered, amended, or modified, except by
written instrument signed by the parties hereto.
SECTION 27. MISCELLANEOUS.
(1) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(2) If any term, provision, covenants, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remainder of the provisions shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
(3) This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their respective permitted successors in interest and permitted
assigns.
(4) In the event any action is necessary to enforce any of the terms
and conditions of this Agreement. Dealer shall pay to Mita all costs and fees
incurred, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
MITA COPYSTAR AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive V.P. of Sales
---------------------------------
Imtek Corporation
---------------------------------------
"Dealer"
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Title: President, COO
---------------------------------
SCHEDULE "A"
The Products to be sold by Dealer are listed below.
DC-5585 DC-6090
DC-5685 DC-6590
DC-5690 DC-7085
DC-5590 DC-7090
(related toners and developers)
SCHEDULE "B"
The Area of Prime Responsibility for the Dealer shall be the area designated
below:
COUNTIES IN THE STATE OF DELAWARE:
Kent
New Castle
Sussex
COUNTIES IN THE STATE OF MARYLAND:
▇▇▇▇▇▇▇▇ Somerset
Dorchester ▇▇▇▇▇▇
▇▇▇▇ Wicomico
Queen Anne's Worcester
COUNTIES IN THE STATE OF NORTH CAROLINA:
Camden
Currituck
Dare
Pasquotank
COUNTIES IN THE STATE OF VIRGINIA:
Accomack New ▇▇▇▇
▇▇▇▇▇▇▇ City Norfolk
Essex Northampton
Gloucester Northumberland
Isle of Wight Rappahannock
▇▇▇▇▇ City Richmond
King and Queen Surry
Lancaster Sussex
▇▇▇▇▇▇▇ York
Middlesex
BRANCH OFFICE LOCATION:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE "C"
The minimum sales goals for the Dealer in the Area of
Prime Responsibility are listed below.
DEALERSHIP: IMTEK CORPORATION, d/b/a IMTEK OFFICE SOLUTIONS
6 MONTH QUOTAS:
--------------
HVC Copiers & Accessories: $192,486
HVC Parts, Suppliers &
Other Related Products: $180,841
