EXHIBIT 10.17
ALLTEL SUPPLY
ALLTEL
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
000-000-0000
ALLTEL Supply
DISTRIBUTOR AGREEMENT
This Agreement is made as of this 20 day of January 1 1999, by and between
ALLTEL Supply, Inc., located at 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxx 00000 hereinafter referred to as "Distributor", and Carnegie
International Corp./Assignees, having its principal office at 00000 XxXxxxxxx
Xxxx, Xxxxx 000 1, E.P. III, Xxxx Xxxxxx, XX 00000 hereinafter referred to as
"Manufacturer/Supplier". This agreement shall be automatically renewed for
successive one year terms unless either party terminates as provided for herein.
In consideration of the mutual agreements and promises contained in this
Agreement, Distributor and Manufacturer/Supplier agree as follows:
1. APPOINTMENT OF DISTRIBUTOR:
Manufacturer/Supplier hereby appoints and designates the Distributor as
an authorized distributor of the Equipment described in the attached
Exhibit I "Equipment" and authorizes Distributor to market and sell the
Equipment, according to the terms and conditions of this Agreement.
Manufacturer/Supplier agrees to sell to Distributor, Equipment for
resale in the Territory. The Territory, in which Distributor may act as
authorized distributor of the Equipment, shall be the United States of
America.
2. THE DISTRIBUTOR AGREES:
A. To use its best efforts to promote, market and distribute the
Equipment of Manufacturer/Supplier in a manner reflecting
credit on the parties to this Agreement.
B. To provide customers with currently available catalogs and
promotional literature in reasonable quantities as deemed
appropriate by Distributor.
C. To provide and/or coordinate technical support for and
training in the proper use of the Equipment, for those
customers requesting same, through seminars and other programs
as deemed appropriate by Distributor.
D. To adhere to the payment and price terms prescribed in this
Agreement. (See Attachment "A")
3. MANUFACTURER/SUPPLIER AGREES:
A. To support the Distributor in its effort to promote the sale
of the Equipment.
B. To provide reasonable technical and/or sales training
assistance for the
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Distributor's customers at the Distributor's request.
C. To support the Distributor by providing it, upon request,
with all reasonable quantities of literature, catalogs,
advertisements, circulars, etc. at no charge.
D. To insure that the prices, terms and conditions of sale to
Distributor are no less favorable than those allowed other
Distributors of Manufacturer/Supplier's Equipment.
E. To support sales through Distributor and any requests for
Direct Sales shall be quoted at Manufacturer's suggested
list price. (See Attachment "B")
F. To extend to Distributor, at Distributor's discretion the
following options. Relevant only to the product purchased on
the agreed upon initial stocking orders, for any product
remaining in inventory six (6) months after delivery to
Distributor, the Distributor may elect to either return any
product in exchange for an equal value purchase of alternate
product, OR return the remaining product for a full cash
refund based upon the original purchase price.
G. To recognize that Distributor is the Purchasing entity for
all ALLTEL Corporation Affiliated companies and will make no
attempt to sell directly to them. Further any pricing
inquiries shall be referred back to the Distributor.
H. That their products will be produced, manufactured and
delivered in accordance with all applicable Federal, State,
and Local statutes. To hold ALLTEL Supply harmless from all
claims or judgments for bodily injury, personal injury,
advertising injury or property damage against ALLTEL Supply
by third parties, which injury or damage results from the
distribution of that product by ALLTEL Supply. To maintain
Commercial General Liability Insurance, including Products-
Completed Operations, in the minimum amount of $ 1,000,000
per occurrence / aggregate, endorsed to name ALLTEL Supply,
Inc. as additional insured. Upon request, Manufacturer/
Supplier agrees to provide a certificate evidencing such
coverage.
4. ADDITIONAL TERMS AND CONDITIONS:
A. Order Entry. All orders shall be placed using the standard
Purchase Order forms of ALLTEL Supply, Inc.
B. Pricing/Discounts. Distributor's cost for each item of the
Equipment shall be Manufacturer/Supplier's current list
price as published from time to time, less a discount, as
shown in Exhibit 2. Manufacturer/Supplier shall have the
right to change its prices upon sixty (60) days written
notice to Distributor, Prices are exclusive of federal,
state, and local taxes. In the event of a decrease in price,
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Manufacturer/Supplier will issue a credit to Distributor for
the difference between the original and new lower price on
products currently in Distributor's stock. In the event of a
price increase, orders placed prior to effective date will
be invoiced at the old prices. Ten (10) sets of pricing are
to be included with notification. Volume discount and/or
rebate programs may be included herein or accepted under
separate agreement or schedule.
C. Advertising/Marketing Allowances. In the event Vendor
Advertising/Co-op programs are available, it/they are
included herein as Exhibit 3.
D. Payment Terms. Payment shall be due, in full, thirty (30)
days from date of invoice. If paid within fifteen (15) days,
a two percent (2%) early payment discount will apply.
Invoice date shall be the date the Equipment is shipped or
later. In no event shall the invoice date precede the
shipping date.
E Stock Balancing. Distributor may request one (1) return
authorization in each calendar quarter without a restocking
charge, for slow moving inventory. Distributor may return
one (1) consolidated shipment from each distribution
location, freight prepaid, for stock adjustment.
F. Obsolescence. If the Manufacturer/Supplier introduces new
equipment, which substantially obsoletes equipment
previously purchased by the Distributor, the
Manufacturer/Supplier, shall after written request from the
Distributor, repurchase such equipment which was so rendered
obsolete at the purchase price, provided the Distributor
will issue an order to offset at equal value.
Manufacturer/Supplier will give sixty day (60) notification.
G. Freight. FOB Laurel, Maryland. Equipment will be shipped to
Distributor's specified delivery point FOB origin for
dropship orders, freight prepaid and added to the invoice
provided a copy of the actual freight invoice is included
for all shipments other than U.P.S. FOB destination freight
prepaid and allowed for stock shipments. Title and risk of
loss for Equipment shall pass to Distributor, upon delivery.
Manufacturer/Supplier will pack equipment purchased
hereunder for transport in accordance with commercial
standards and deliver Equipment to a carrier of the mode of
transportation selected by Distributor unless otherwise
agreed upon by the parties. If any unauthorized freight
carrier routing occurs which results in an increase to the
net cost of freight to the Distributor, the difference is
subject to xxxx back and will be deducted from the next
available invoice. All Bills of Lading shall indicate total
piece count. All shipments marked "SAID TO CONTAIN" are
subject to refusal and all charges applicable are
Manufacturer/Supplier's responsibility.
Manufacturer/Supplier will assist in asserting any claim
against the invoiced carrier for loss, damage, or
destruction of Equipment. Freight classifications must be
provided for all products upon acceptance of this Agreement.
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H. Packaging/Weights. Standard unit, master carton, pallet and
reel quantities are to be identified and provided with
corresponding weights prior to the acceptance of this
agreement. Unless instructed otherwise by Distributor,
Manufacturer/Supplier shall, for orders placed hereunder:
(1) ship to the destination designated in the order in
accordance with specific shipping instructions; (2) see that
all subordinate documents bear Distributor's order number;
(3) enclose a packing memorandum with each shipment and when
more than one package is shipped, identify the one
containing the memorandum and sequentially number all
cartons i.e. I of 4, 2 of 4, etc.; (4) xxxx Distributor's
order number on all packages and shipping papers; and (5)
render separate invoices for each shipment or order.
I. Manufacturing Origin. City, state, and country of origin are
to be identified for each product/product group.
Certificates of origin (where applicable) are to be included
with this agreement and provided as further development
occurs. All products are to be identified where CSA/DOC
approval has been granted.
J. Non-Assignability. The rights and obligations created
hereunder cannot be assigned by either party either
voluntarily or by operation of the law without the prior
written consent of the other party. Any unauthorized
transfer or attempt to transfer or assign automatically
terminate this Agreement.
K. Relationship of Parties. This Agreement does not in any way
create the relationship of joint venture, partnership, or
principal and agent between Manufacturer/Supplier and ALLTEL
Supply, Inc. and neither shall have the power or ability to
pledge the credit of the other, nor to bind the other, nor
to contract in the name of or create a liability against the
other in any way for any purpose.
L. Infringement. The Manufacturer will indemnify, defend, and
otherwise hold harmless the Distributor, its affiliates, and
its customers from all cost, loss, damage, or liability
arising from any proceeding or claim brought or asserted
against Distributor, its affiliates, or its customers for
any claim that the use of any Products in accordance with
this agreement infringes a third party's U.S. patent,
copyright, trade secret and/or other proprietary right in
the United States. The Manufacturer will pay any costs,
damages and attorney's fees finally awarded against
Distributor, for any such infringement, provided that:
o Distributor notifies the Manufacturer immediately
upon Distributor's receipt of such claim;
o Manufacturer has sole control of the defense of,
and all related settlement negotiations for, any
such claim, and;
o Distributor cooperates fully in the defense-of,
and furnishes all related evidence in its control
relating to, any such claim.
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If claim for infringement occurs and Distributor's use of a
product or any part thereof in accordance with this
agreement is enjoined as a result thereof, or in the
manufacturer's opinion is likely to occur, the Manufacturer
shall have the right, at its option and expense, to (1)
procure the right for Distributor to continue using such
product(s) in accordance with this agreement, (2) replace or
modify such product(s) so that it becomes non-infringing, or
(3) require the return to the Manufacturer all products to
which such claim(s) for infringement relate. In the event of
any such return of products, the Manufacturer agrees to
grant Distributor credit for such returned products, based
on the price paid.
Manufacturer shall have no obligation or liability to
Distributor for any claim and/or injunction for infringement
based upon (1) the combination, operation or use of any
product(s) with equipment, data, or software not supplied by
Manufacturer, (2) alteration or modification of any
product(s) not authorized or performed by Manufacturer, or
which are made or authorized by Manufacturer in compliance
with Distributor's or end user's designs, specifications or
instructions.
M. Warranty. Standard policy to be included with current price
schedule provided initially and periodically hereafter.
Optional policies or programs as available.
Multi-Century Clause: Multi-Century Compliance Not
withstanding any provision of this agreement to the
contrary, the manufacturer/supplier represents and warrants
that its own internal systems and each item of hardware,
software, and firmware created, modified, upgraded, revised,
developed, or delivered hereunder shall accurately process
date data (including without limitation calculating,
comparing, and sequencing), within, from, into, and between
centuries, (including without limitation the twentieth and
twenty-first centuries), including leap year calculations.
The design of said hardware, software, and firmware to
insure compliance with the foregoing warranty shall include,
without limitation, date data century recognition,
calculations that accommodate same century and multi-century
formulae and dated values, date data interface values
reflect the century. In the event of breach of this
warranty, ALLTEL shall be entitled to repair or replacement
of any non-compliant item, at no cost to ALLTEL, within
sixty (60) days after notice of breach from ALLTEL to
manufacturer/supplier, in addition to the warranties
expressed, implied , or arising by operation of law. It is
understood that the warranties created by this agreement,
whether express, implied, or arising by operation of law
that affect ALLTEL's rights under this agreement are
cumulative and should be considered in a manner consistent
with one another.
N. Hazardous Material Compliance. In accordance with "Right to
Know" legislation, MSDS documentation is to be provided for
all products initially and hereafter with each shipment.
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0. Trademarks. Products and licensed materials purchased under
this Agreement may bear trade names, trademarks, logos or to
symbols of Manufacturer/Supplier. Manufacturer/Supplier
hereby grants to Distributor permission to use such symbols
in Distributor's marketing and advertising of
Manufacturer/Supplier products, provided such use conforms
to standards and guidelines relating thereto which
Manufacturer/Supplier may furnish from time to time. Use of
trademarks and symbols by Distributor may be subject to pre-
publication or pre-use review and approval by
Manufacturer/Supplier. If, in Manufacturer/Supplier
judgment, any use by Distributor is deemed detrimental to
Manufacturer/Supplier or is deemed undesirable,
Manufacturer/Supplier may withdraw permission without
liability as result thereof.
P. Force Majeure. Neither party shall be responsible for delays
or failures in performance resulting from acts of God, labor
strikes, acts of war or civil disruption, government
regulations imposed after the fact, public utility failures,
or natural disasters.
Q Termination. The Distributorship hereby created may be
terminated only; (a) by an agreement in writing duly signed
by the parties hereto; (b) by either party at will, with or
without cause, upon not less than ninety (90) days notice in
writing given by certified mail, return receipt requested,
to the other party; (c) by either party if the other party
either ceases to function as a going concern or to conduct
its operations in the normal course of business, a receiver
is appointed or applied for by the party, a petition under
the Federal Bankruptcy Reform Act if filed by or against
either party, or either party make an assignment for the
benefits of creditors.
Upon termination, Manufacturer/Supplier shall purchase from
Distributor and Distributor shall sell to
Manufacturer/Supplier any and all products remaining in
Distributor's inventory at the price paid originally by
Distributor. Material to be returned to
Manufacturer/Supplier for full cash refund, freight paid by
the Distributor.
R. Governing Law. This Agreement shall be governed by the laws
of the State of Georgia.
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S. Notices. All notices required or contemplated under this
Agreement shall be by first class mail, except as stated in
Paragraph 4 (1) hereof, addressed to the parties as follows:
TO MANUFACTURER/SUPPLIER Carnegie International Corp. / Assignees
11350 XxXxxxxxx Xx.,Suite 1001 EP III
Xxxx Xxxxxx, XX, 00000
TO DISTRIBUTOR ALLTEL Supply, Inc.
0000 Xxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
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5. This Agreement shall be binding upon and ensure to the benefit of the
parties hereof, and their successors and assigns.
MANUFACTURER/SUPPLIER
/s/ Carnegie International Corp.
--------------------------------
(Manufacturer/Supplier)
By: /s/ Xxxxxx Xxxxxx
--------------------------
(Authorized Signature)
Name: Xxxxxx Xxxxxx
Title: President
Date: 12/23/98
Attest:
/s/ Xxxxx Xxxxx
--------------------
(Signature)
Name: Xxxxx Xxxxx
Title: Secretary
ALLTEL Supply, Inc.
By: /s/ X.X. Xxxxxx, Xx.
--------------------------
(Authorized Signature)
Name: X.X. Xxxxxx Xx.
Title: Senior Vice President,
Operations
Date: January 20, 1999
Attest:
/s/ X.X. Xxxxxxxxxxxx
----------------------
(Signature)
Name: X.X. Xxxxxxxxxxxx
Title:Executive Secretary
c76365.634
