EXHIBIT 10.6
___________, 2001
Pitney ▇▇▇▇▇ Office Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pitney ▇▇▇▇▇ of Canada Ltd./Pitney ▇▇▇▇▇ Office Systems, Inc. -
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Reseller Agreement
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Ladies and Gentlemen:
In connection with the distribution of the capital stock of Pitney ▇▇▇▇▇
Office Systems, Inc. ("Office Systems" or "you") by Pitney ▇▇▇▇▇ Inc. ("Pitney
▇▇▇▇▇") to its stockholders (the "Distribution"), Office Systems and Pitney
▇▇▇▇▇ of Canada Ltd., a wholly-owned subsidiary of Pitney ▇▇▇▇▇ ("PBC," "we" or
"us") hereby enter into this reseller agreement to provide for the purchase of
equipment by PBC from Office Systems (the "Reseller Agreement"). This letter
agreement together with the term sheet attached hereto as Exhibit A (the "Term
Sheet") constitute the Reseller Agreement. The terms set forth in the Term
Sheet are hereby incorporated by reference into this Reseller Agreement as if
they were set out herein in full. The entering into and purchasing under the
Reseller Agreement by the parties herein described and the other transactions
contemplated hereby, entered into and consummated in connection therewith are
herein referred to as the "Transactions".
Subject to the terms and conditions of this Reseller Agreement, we hereby
agree with you as follows:
1. Confidentiality. You agree that the confidentiality provisions of the
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Distribution Agreement dated as of [date] between Pitney ▇▇▇▇▇ and Office
Systems (the "Distribution Agreement") shall apply in all respects to any and
all confidential information related to, or provided under, this Reseller
Agreement.
2. Use of "Pitney ▇▇▇▇▇" brand. You agree that the terms of the
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Distribution Agreement and the Intellectual Property Agreement dated as of
[date] between Pitney ▇▇▇▇▇ and Office Systems (the "Intellectual Property
Agreement") regarding the use of the "Pitney ▇▇▇▇▇" brand shall apply in all
respects to use of the "Pitney ▇▇▇▇▇" brand as used in connection with
transaction under or related to this Reseller Agreement.
3. Non-compete. You agree that the terms of the Distribution Agreement
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and the Intellectual Property Agreement regarding non-competition, including the
provisions for termination thereof, shall apply in all respects to this Reseller
Agreement.
4. Dispute Resolution. You agree that all disputes arising between the
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parties under this Reseller Agreement shall be resolved pursuant to the terms of
the Transition Services Agreement dated as of _________ between Pitney ▇▇▇▇▇ and
Office Systems (the "Transition Services Agreement"), including submission of
all disputes to the Operating Committee (as such term is defined in the
Transition Services Agreement) for resolution, subject to Section 8 herein.
5. Assignment. The provisions of this Reseller Agreement shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that neither party may assign, delegate or
otherwise transfer any of its rights or obligations under this Reseller
Agreement without the consent of the other parties hereto. If any party or any
of its successors or assigns (1) shall consolidate with or merge into any other
Person (as such term is defined in the Distribution Agreement) and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger or (2) shall transfer all or substantially all of its properties and
assets to any Person, then, and in each such case, proper provisions shall be
made so that the successors and assigns of such party shall assume all of the
obligations of such party under this Reseller Agreement.
6. Notices. All notices and other communications to any party hereunder
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shall be in writing (including telecopy or similar writing) and shall be deemed
given when addressed as follows:
If to us, to:
Pitney ▇▇▇▇▇ of Canada Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attn: Chief Financial Officer
Tel.: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
2
with a copy to:
Pitney ▇▇▇▇▇ Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Title: Vice President and General Counsel
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to you, to:
Pitney ▇▇▇▇▇ Office Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (203) [ - ]
Attention: Chief Executive Officer
with a copy to:
Pitney ▇▇▇▇▇ Office Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
7. Governing Law and Waiver of Jury Trial. This Reseller Agreement
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shall be construed in accordance with and governed by the law of the State of
New York, without regard to the conflicts of laws rules thereof. Each of the
parties hereto waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) related to or
arising out of any of the Transactions or the other transactions contemplated
hereby, or the performance by either party of the services contemplated hereby.
8. Jurisdiction. Any action seeking to enforce any provision of, or
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based on any matter arising out of or in connection with, this Reseller
Agreement or the
3
transactions contemplated hereby may be brought in the United States District
Court for the Southern District of New York or any other New York State court
sitting in New York County, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient form. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 6
above shall be deemed effective service of process on such party.
9. Amendments. This Reseller Agreement is the only agreement between
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the parties hereto with respect to the matters contemplated hereby and thereby
and sets forth the entire understanding of the parties with respect thereto. The
parties hereby agree to be bound by the covenants and obligations set forth in
this Reseller Agreement. No amendment or waiver of any provision of this
Reseller Agreement shall be effective unless in writing and signed by the
parties hereto and then only in the specific instance and for the specific
purpose for which given. Each of the parties hereto waives all right to trial
by jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) related to or arising out of any of the Transactions or the
other transactions contemplated hereby, or the performance by either party of
the services contemplated hereby.
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to us the duplicate copy of this Agreement enclosed
herewith.
Very truly yours,
PITNEY ▇▇▇▇▇ OF CANADA LTD.
By: ____________________________
Name:
Title:
Accepted and agreed to as of
the date first written above:
PITNEY ▇▇▇▇▇ OFFICE SYSTEMS, INC.
By: _______________________________
Name:
Title:
▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ LTD.
PITNEY ▇▇▇▇▇ OFFICE SYSTEMS INC.
RESELLER AGREEMENT ("AGREEMENT") TERM SHEET
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I. Parties
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A. Purchaser: Pitney ▇▇▇▇▇ of Canada Ltd. ("PBC")
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B. Supplier: Pitney ▇▇▇▇▇ Office Systems, Inc. ("PBOS")
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II. Term and Renewals
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A. The term of the Agreement shall be for a period of two (2) years
commencing as of the date of the spin-off (the "Spin-Off Date"). The
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Agreement may be renewed by the parties for an additional year
provided that any such renewal is at arm's length and agreement as to
such renewal is reached by the parties no later than nine (9) months
prior to the end of the term.
B. One year prior to the end of the term, the parties shall meet to
discuss (i) whether or not the Agreement will be renewed for an
additional year and (ii) the terms and conditions upon which the
Agreement will be renewed.
C. PBOS and PBC shall have the right to terminate this Agreement upon the
occurrence of any of the following events of default:
i) A party fails to perform any material obligation under this
Agreement and such failure continues unremedied for a period of
thirty (30) days after the non-defaulting party provides written
notice as to the failure to perform;
ii) A proceeding is commenced by or against a party under any law
relating to bankruptcy, or a court assumes jurisdiction of a
party's assets under any law authorizing reorganization of its
debts, or a trustee or receiver shall be appointed for all or a
substantial portion of the party's assets;
iii) A party shall become insolvent or suspends its business for any
length of time; or
iv) A party shall make an assignment of its assets for the benefit
of its creditors.
III. Equipment Ordering and Administration
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A. Ordering: All PBC orders with PBOS will be placed by the Purchasing
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Department of PBC (PD) in the form of Exhibit A attached hereto;
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provided, however, that orders (1) with respect to New Equipment (as
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hereinafter defined) that request delivery outside of the standard
lead times as agreed to by the parties from time to time (2) with
respect to equipment other
than New Equipment (e.g. Used Equipment, Remanufactured Equipment and
Refurbished Equipment) and (3) with respect to equipment that has been
discontinued by the manufacturer will be subject to the prior approval
of PBOS, which shall be provided to PBC within 5 business days from
receipt of a PBC order.
All parts & supply orders will be placed by the PD with a Purchase Order
(PO) reference. All Order Agreements and parts & supply orders will be
processed by the PD, and no orders may be accepted from any other location.
All supply orders will note a PO number, which must be noted in the section
reserved for Purchase Order number on the PBOS invoice.
Once an order is accepted, PBOS will use reasonably commercial efforts to
ensure that the manufacturer delivers the product to PBC at the F.O.B.
point in a timely and marketable condition in accordance with applicable
deadlines, and will not be diverted for any reason. In the event that the
ship date is delayed for any reason by the manufacturer, PBOS shall pass on
to PBC the benefit of any remedies from the manufacturer in connection with
any such delay.
A single point of contact will be provided by PBOS for PBC to place orders.
B. Billing: The sole "▇▇▇▇ To" address for PBC is:
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Pitney ▇▇▇▇▇ of Canada Ltd.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇,
▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Accounts Payable
All invoices sent by PBOS to PBC shall be accompanied with a copy of the
manufacturer's invoice for such equipment. Invoices may not be sent to any
other location for any reason. All inquiries for billing and collection,
including aging statements and ▇▇▇▇▇▇▇ letters, will be directed to the PD
at the address shown above.
C. Payment: Payment on all invoices will be due to PBOS upon invoice
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receipt; provided, however that in no event shall payment on an
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invoice(s) exceed the amount of the related purchase order(s) except if
due to currency fluctuations (excluding yield sharing arrangements).
Payment method will be made by wire transfer of immediately available
funds to such account as PBOS shall advise from time to time.
D. Invoice Adjustments. PBC shall have 30 days from the date it
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receives a shipment to (1) notify PBOS with respect to any discrepancies
between the invoices received in respect of such shipment and the
shipment actually received and (2) request adjustments with respect to
any such discrepancies. Any such adjustments will be billed or credited
to PBC in a separate invoice within 10 days after receipt of notification
by PBOS.
E. Product Delivery: PBOS and PBC will agree to standard delivery lead-times
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for different type of purchases including but not limited to those set forth
below:
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i) Used Equipment - Subject to order approval by PBOS based on the
availability of such equipment.
For purposes of this Agreement, "Used Equipment" shall mean
equipment that has been operated and sold to PBC by PBOS "as is"
in the configuration agreed upon by the parties.
ii) Refurbished/Remanufactured Equipment - Subject to order approval by
PBOS (based on availability of such equipment in light of quantity and
excess in stock and whether such excess is reserved), which approval
shall be notified to PBC within two (2) business days of receipt by
PBOS of a request for same by PBC via email or facsimile.
For purposes of this Agreement, "Refurbished/Remanufactured
Equipment" shall mean used units of equipment that are
disassembled and their parts cleaned and reconditioned. The
units are reassembled from new, used, and reprocessed parts
meeting component specifications. The units are then retested to
ensure that they meet model specifications.
iii) Emergency Parts - PBC shall be entitled to submit a maximum of 1 order
per week with 3 line items per order and 3 pieces per line item. The
foregoing limitations shall not apply with respect to epidemic failures
where 5% or more of the population of product fails in a 12 month
period as a result of the same cause (excluding products under
warranty). To the extent that PBOS cannot provide Emergency Parts to
PBC, it shall notify PBC immediately of same.
PBC shall pay to PBOS a premium of $100 per order for each order
for Emergency Parts.
If PBC is not able to obtain Emergency Parts from PBOS due to the
fact that it has exceeded the above noted limitation or PBOS
cannot provide such Emergency Parts, PBC may obtain such parts
from any other supplier and such Emergency Parts shall not be
included for purposes of determining PBC's total sourcing
requirements when determining PBC's compliance with Section
VII.A.; provided, however, that if PBC requires Emergency Parts
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in excess of the above noted limitation it shall first request
same from PBOS and PBOS shall immediately notify PBC whether it
will provide such additional Emergency Parts.
For purposes of this Agreement, "Emergency Parts" shall mean any
part PBC requires to meet an urgent customer request.
FOB point shall be (1) with respect to New Equipment, FOB point of
origin, and with respect to equipment other than New Equipment as
negotiated by the parties.
IV. Equipment and Pricing
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A. All New Equipment, Parts, Emergency Parts, and Supplies prices shall
be calculated as follows:
i) For those provided to PBC from PBOS' inventory at the request
of PBC, the price shall be PBOS' standard cost plus ten
percent (10%).
ii) For those provided to PBC directly from a third party vendor,
the price shall be calculated at 10% over the price paid by
PBOS for such equipment, net of all rebates, volume discounts
or other reductions in the price of such equipment.
iii) PBC shall pay all costs of shipping said items, including
freight, duty and insurance, from either PBOS or the third
party vendor to PBC, as applicable, provided that PBC has
approved such costs in advance.
iv) Emergency Parts shall additionally include the fee set forth
in Section III. E. (iii).
v) If PBOS at its own discretion chooses to fill a standard order
(excluding Emergency Parts) from PBOS' inventory, PBC will pay
the lower of (x) the price as calculated pursuant to clause
(ii) above and (y) the price as calculated pursuant to (i)
above.
vi) Refurbished/Remanufactured and Used Equipment shall be priced
as quoted by PBOS at the time of such request for same.
B. Prices will be quoted in the currency of the vendor agreement. PBOS
will ▇▇▇▇ in US$ but will not accept the currency risk for equipment
sourced in foreign currency. The conversion rate from Yen to US
dollars will be the rate published in the Wall Street Journal the
day before the invoice date. Purchaser will be party to any currency
sharing agreements. These must be fully disclosed in advance and the
details provided.
C. In the case of large deals (defined as 1500 or more units to a
single account), PBOS will use its best efforts to obtain special
pricing from its suppliers and will pass these onto PBC using the
formula in IV A. above.
D. PBC agrees that it shall not develop any direct relationship with
any current PBOS supplier, unless (1) PBOS chooses not to supply
equipment to PBC for any reason (unless such failure to supply is
due to a circumstance outside the reasonable control of PBOS) after
PBC has presented it with a request for same, (2) this Agreement has
been terminated or is no longer in effect, (3) either party has
provided the other party of its intention to not renew this
Agreement or (4) notice of termination of the covenant not to
compete has been given pursuant to Section 8.12(b) of the
Distribution Agreement. For the avoidance of doubt, any equipment,
parts or supplies purchased from a supplier other than PBOS for the
foregoing reasons shall not be included for purposes of determining
PBC's total sourcing requirements when determining PBC's compliance
with Section VII.A.
In addition, PBC shall be free to contact any vendor/supplier in
Canada, or any other vendor outside of Canada who is not a then
current vendor of PBOS (1) for purposes of obtaining the 10% of its
sourcing requirements that are not subject to Section VII.A hereof
and (2) with respect to equipment purchases with respect to which
PBOS fails to satisfy the terms of Section VII.A., clauses (i), (ii)
or (iii).
V. Warranty
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For each PBOS product purchased by PBC, PBOS shall transfer to PBC all
warranties and indemnifications that it holds from the equipment
manufacturer. If any warranty and/or indemnification is not transferable,
PBOS will covenant to provide PBC with the practical benefits of such
warranty and/or indemnification. PBOS will provide a list of all warranties
and indemnifications provided to PBOS by the equipment manufacturer with
respect to existing equipment, supplies and parts.
PBOS shall obtain any normal product certifications (e.g. United Lab "small
c", international access standards, etc.) to meet local law requirements,
including, without limitation, those relating to safety and language;
provided, however, that to the extent that there are incremental costs
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associated with obtaining any certifications, PBC shall bear the costs and
expenses relating to same. PBOS shall use its best efforts to get
additional features at the lowest possible price from its suppliers to
satisfy local requirements.
VI. Audit Rights
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A. PBC, at its sole cost and expense, shall have the right to an annual
audit of PBOS books and records (including agreements and modifications
to same) by an independent accountant from an internationally
recognized firm) to verify pricing and warranties.
B. PBOS, at its sole cost and expense, shall have the right to an annual
audit of PBC's books and records by an independent accountant from an
internationally recognized firm) to verify PBC's compliance with
Section VII.A. hereof.
VII. Nonexclusivity
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A. Subject to clauses (i), (ii), (iii) of this paragraph VII.A. and
paragraphs VII.B., VII.C., VII.D. and VII.E. below, PBOS shall be the
exclusive provider of PBC with respect to at least 90% of PBC's total
sourcing requirements relating to copiers and facsimile machines,
supplies, peripherals and all associated parts; provided, however,
that the equipment to be provided by PBOS (i) meets the specifications
and requirements (including legal, language, and safety requirements
required under Canadian Federal and Provincial regulations) for its
intended use, (ii) is priced competitively with similar equipment that
may be purchased in Canada (e.g. to the extent that similar equipment
can be purchased in Canada at a lower price, PBC will not be obligated
to purchase same from PBOS) and (iii) is available to meet PBC's
delivery requirements.
Equipment that will be subject to the provisions of paragraph VII.A.
will be as agreed to by the parties from time to time.
In the event PBC requests equipment falling outside of such
list in terms of features or functionality, paragraph VII.B. shall
govern.
B. During the term of the Agreement, as and when PBC wishes to source
product outside of PBOS' then current portfolio of products for
distribution in connection with individual tenders, requests for
proposals (RFP's) and individual customer requests, it may provide
PBOS as soon as it has knowledge of same with reasonable written
notice (which shall in no event be less than ten (10) days) of the
type and quantity of machine(s) it desires, together with the required
level of product functionality and requested delivery schedule. If
PBOS responds to PBC prior to the end of such ten (10) day period that
it is willing to provide products meeting PBC's requirements
(including delivery requirements), PBOS shall be granted the order on
the specified terms, provided that PBOS's price is competitive with
pricing of comparable equipment that may be purchased in Canada. If
PBOS fails to timely respond to or affirmatively rejects PBC's notice,
PBC shall be permitted to pursue other vendors with respect to the
particular order on an unencumbered basis. In no event, however, shall
PBOS' failure to respond favorably to a particular order prejudice its
ability to fulfill the future sourcing needs of PBC on a preferred
basis provided that PBOS meets the provisions outlined above with
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respect to those future orders.
To the extent that PBC acquires a dealership that distributes
equipment in Canada that is competitive with the equipment to be
supplied by PBOS to PBC under this Agreement, PBC shall use its best
efforts to transition out such portion of competitive products as soon
as reasonably possible in order to honor the exclusivity provisions
set forth in paragraph VII.A. above.
C. For purposes of obtaining the benefit of pricing set forth in
Section IV. of this Agreement, PBC shall have no minimum volume
purchase requirements with PBOS except as provided in paragraph VII.A.
above.
D. The provisions of Section VII.A. above shall cease to apply upon (1)
notice by any party of termination of the covenant not to compete
pursuant to Section 8.12(b) of the Distribution Agreement and (2) the
termination of this Agreement..
E. Upon notice by either party of its intention to not renew this
Agreement, the 90% requirement pursuant to Section VII.A. shall be
reduced by 50% of the declining percentage for each remaining quarter
until the termination date of the Agreement.
VIII. Indemnification
A. PBOS shall indemnify, defend and hold harmless PBC, its affiliates,
directors, officers, and employees, from and against any losses,
claims of losses, damages and expenses (including without limitation
court costs and attorneys' fees) caused by:
i) Defective Equipment to the extent provided by the equipment
manufacturers to PBOS;
ii) Copyright or other intellectual property right infringements as
set forth in Section VIII.E. below; and
iii) any other matters with respect to which PBOS has obtained
indemnities and/or defense from its vendors/suppliers or third
parties.
B. PBC shall promptly notify PBOS of any indemnification claims. PBOS
shall have the right to control the defense of such claim including
the right, with the consent of PBC, to compromise or settle such
claim. PBC shall participate in such defense if request by PBOS and
shall be reimbursed for the expenses incurred as a result of such
participation.
C. As previously agreed, PBOS will transfer warranties and
indeminifcations it receives from its suppliers for the equipment
purchased by PBC hereunder. If any such warranties and/or
indemnifications are not transferable, PBOS hereby covenants to
provide to PBC the practical benefits of such warranties and/or
indemnifications. PBOS hereby waives all warranties (express or
implied), other than the indemnities or warranties referred to in this
Agreement. Further, PBOS will not be providing maintenance service on
equipment sold to PBC.
D. PBOS shall provide PBC with notice prior to changing any provisions in
any supplier/vendor contract relating to indemnities, warranties or
any other provisions with respect to which PBOS has agreed to pass on
the benefits to PBC.
E. PBOS will, at its sole expense, indemnify, defend, and hold harmless
PBC, its parent, directors, officers and employees from and against
all liability as a result of a claim or action asserted by any third
party based upon PBC's or its customer's use and/or possession of
modifications to, or designs of equipment requested or completed by
PBOS, which equipment has then been supplied to PBC by PBOS pursuant
to this Agreement ("Infringing Equipment") infringing any patent,
copyright, trade secret, trademark or other intellectual property
right or interest of any third party ("Infringement") or any
customer claim against PBC relating to any Infringement, and PBOS
will pay damages, costs, expenses, settlement amounts and judgments
finally awarded against PBC or PBC's customers relating thereto
(including court costs and attorneys' fees). PBC agrees to promptly
notify PBOS in writing of any matters in respect to which the
foregoing indemnity may apply. PBOS shall have the exclusive right
to control and conduct the defense and settlement of all such claims
or actions. PBC agrees to provide such assistance at PBOS' expense
that may be reasonably required by PBOS in connection with such
settlement or defense. If final judgment shall be obtained against
PBC's or its customer's use or operation of the equipment supplied
by PBOS to PBC pursuant to this Agreement, or any part thereof, by
reason of such Infringement, or if in PBOS's opinion, such equipment
is likely to become subject to a claim of Infringement, PBOS shall,
at its sole expense and option, either (a) modify the Infringing
Equipment so that it becomes non-infringing without materially
altering its capacity or performance; (b) procure for PBC or PBC's
customer the right to continue to use the Infringing Equipment; or
(c) substitute for the Infringing Equipment other equipment having a
capability equivalent to that of the Infringing Equipment. If
neither (a) through (c) above is available to PBOS, then PBOS shall
refund to PBC the purchase price of such unit of Infringing
Equipment paid, pro ratable, based upon a thirty-six (36) month
useful life and shall remove the Infringing Equipment at its sole
cost and expense. PBOS shall have no liability with respect to any
such claim or action to the extent caused by the combination,
operation or use of the Infringing Equipment with any equipment,
device, or alteration to the Infringing Equipment not made or
authorized in writing by PBOS. The foregoing states the entire
liability of PBOS to PBC for Infringement.
IX. Service Level Agreements
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PBOS will provide the following to PBC at no charge:
A. Marketing & Sales Support
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i) Monthly updates of new products.
ii) PBOS Creative for all brochures (electronically)
iii) A PBOS product launch binder for each product
iv) One time "train the trainer" session training on new
products, provided that PBC is responsible for the cost of
travel and lodging of its personnel participating in such
training
v) A master copy on a per product basis of training materials to
be used for training the sales force
vi) Ability for PBC to participate in events (Seminars, Trade
Shows, etc.)
B. Technical & Service Support
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i) Quality assurance testing, engineering and R&D
ii) One technical training (train the Trainer program) class per new
product introduction including all new product/feature
introductions, as well as iLearning. PBC may elect at their
discretion to arrange technical training at a Canadian facility of
their choice. PBC will pay the travel and living expenses of the
trainer provided that PBC has approved such costs in advance.
iii) Service bulletins and updates, trouble database, including access
to all web related information and problem resolution procedures
currently available.
iv) Technical & engineering bulletins
v) Patches & interface kits (including software updates for existing
products) provided that they are free to PBOS; PBC shall pay any
incremental costs specific to PBC with respect to the foregoing
provided that PBC has approved such costs in advance
vi) Hotline support for technical issues (third level only; i.e., after
their customer engineer and technical support people have failed)
vii) Diagnostic tools (software based) provided that they are free to
PBOS; PBC shall pay any incremental costs specific to PBC with
respect to the foregoing provided that PBC has approved such costs
in advance
PBOS will provide the following at a mutually agreed upon reasonable
price:
. Customization to products - Parties to include a co-development
policy to meet Canadian requirements, including agreement delivery
timetable, pre and post sales support, intellectual property rights
etc.
. On-Site assistance
. Coordination of third party engineering support for unique
engineering requirements
The Parties will work in good faith to mutually agree to the following
within 90 days of the execution of the Agreement:
. On-site assistance procedure
. High profile event procedure
. Complaint procedure
. Standardized fault resolution process
. Contacts for technical product information
. Problem resolution process (including emergency, out of hours
coverage etc.)
. Monthly reporting and review of service level measures
. Process for dealing with epidemic failure of components
X. Cross Border Transactions
-------------------------
A. With respect to cross border transactions, regardless of whether PBOS or
any of its employees, associates, agents, distributors, affiliates or
subsidiaries or PBC or any of its employees, associates, agents,
distributors, affiliates or subsidiaries, other than PBMS, initiates the
transactions, all revenue from sales or service and the associated costs
shall belong to the company in the territory where installation of the
equipment occurs.
Each party may contract directly with the customer for the sale, rental
or service in its home country or, if the customer requires a single
point of contact, the parties shall enter into a subcontract arrangement
with the party in the country in which the customer's applicable
purchasing office is located serving as the prime contractor. Each party
shall decide the price and terms to be charged within its respective
country, provided, however, that with respect to large transactions,
-------- -------
each party's Contact for Cross Border Transactions shall meet to decide
the pricing to be charged to the customer.
B. Each of PBOS and PBC shall appoint a single contact person to handle any
such cross border transactions ("Contact for Cross Border
------------------------
Transactions"). As of the date of this Agreement, the primary Contact
------------
for Cross Border Transactions for each of PBOS and PBC is set forth
below:
For PBC: ▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇
For PBOS: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇
Each of the above shall be responsible for appointing a deputy to act
on his behalf in his absence.
C. PBOS and PBC shall schedule periodic meetings for its sales people
involved in cross border transaction to ensure open communications
between PBC and PBOS with respect to same.
XI. Product Sourcing
----------------
PBOS, through its product sourcing, will use its best efforts to ensure
that Canadian product requirements are being met. The parties agree to
meet at least twice per year to obtain PBC input in the types and qualities
of products required to allow PBC to remain competitive in the Canadian
market place.
