TOSHIBA AMERICA INFORMATION SYSTEMS, INC. DIGITAL SOLUTIONS DEALER AGREEMENT
TOSHIBA
AMERICA INFORMATION SYSTEMS, INC.
An
AGREEMENT made as of _________________________________________________
by and
between the Digital Solutions Division of Toshiba America Information Systems,
Inc., (hereinafter "TAIS"), a California Corporation, and
DBA
IPTIMIZE, INC.
(Hereinafter
"DEALER"). TAIS and the DEALER, in consideration of the mutual promises made
below, hereby agree as follows:
| 1. |
GENERAL
This Agreement governs all transactions hereafter entered into between
TAIS and DEALER concerning TOSHIBA-brand equipment and accessories
marketed by TAIS's Digital Solutions
Division.
|
| 2. |
APPOINTMENT
Subject to the terms set forth herein, TAIS hereby appoints the DEALER,
and the DEALER accepts the appointment by TAIS, to be a non-exclusive,
independent DEALER of such Products (hereinafter referred to as AUTHORIZED
PRODUCTS) as are set forth on the attached Schedule "A" and/or Schedule
“E” (hereinafter referred to as the "AUTHORIZED PRODUCTS" list).
|
| 3. |
PRODUCT
DEVELOPMENT TAIS
reserves the right, in its sole and absolute discretion, to make
modifications, improvements or changes to AUTHORIZED PRODUCTS or
to
discontinue the sale or distribution of any AUTHORIZED PRODUCTS
unilaterally, at any time, and without incurring any liability whatsoever
to DEALER or others.
|
| 4. |
RETAIL
SALES
DEALER shall at all times, use its best efforts to promote, sell,
market,
install, service and maintain AUTHORIZED PRODUCTS to end users at
retail
only. DEALER may sell AUTHORIZED PRODUCTS to another authorized TAIS
Digital Solutions dealer only with the written consent in each case
by a
TAIS Sales Director. DEALER agrees not to sell AUTHORIZED PRODUCTS
to
wholesalers, non-TAIS dealers, or others who purchase for the purpose
of
resale.
|
| 5. |
TERRITORY
DEALER shall promote, sell, market and service AUTHORIZED PRODUCTS
to end
users located in the geographic area (the "TERRITORY") described
on
Schedule(s) "B" hereto, except as provided by section 21 below or
as
approved in advance in writing by TAIS's Vice President-Sales &
Marketing, Digital Solutions Division, in a particular
instance.
|
| 6. |
LOCATION
OF DEALER FACILITIES
The
principal place of business of DEALER, and such other locations as
are set
forth on Schedule(s) "B" hereto, shall be the only locations at or
from
which DEALER may promote, sell, market or service the AUTHORIZED
PRODUCTS.
DEALER shall not establish any new, different or additional sales
or
service locations for the AUTHORIZED PRODUCTS without the prior written
consent of the Vice President-Sales & Marketing of TAIS's Digital
Solutions, Division. Dealer specifically acknowledges that a violation
of
this section shall constitute a default under this
Agreement.
|
| 7. |
TAIS
DUTIES
In
addition to and subject to other provisions of the Agreement, TAIS
shall:
|
| (a) |
Provide
AUTHORIZED PRODUCTS to DEALER in response to orders by DEALER accepted
by
TAIS, subject to the terms and conditions of this
AGREEMENT;
|
| (b) |
Provide
DEALER with such marketing literature, technical literature, technical
advice and assistance and warranty literature as ▇▇▇▇ ▇▇▇▇▇ appropriate
for AUTHORIZED PRODUCTS;
|
| (c) |
Conduct
service training and sales and marketing training schools and programs
as
TAIS may establish from time to
time;
|
| (d) |
Provide
DEALER with customer leads, in such number and manner as TAIS in
its sole
discretion deems appropriate for the marketing of AUTHORIZED
PRODUCTS;
|
| (e) |
Establish
or provide for such repair facilities or methods as ▇▇▇▇ ▇▇▇▇▇ appropriate
for warranty and out-of-warranty maintenance of AUTHORIZED
PRODUCTS;
|
| (f) |
Engage
in advertising programs, which may include national, local or cooperative
advertising, of such type and nature as ▇▇▇▇ ▇▇▇▇▇ appropriate for
the
successful marketing of AUTHORIZED
PRODUCTS.
|
| (g) |
Subject
to the terms of this Agreement, charges, if any, for the foregoing,
shall
be as TAIS establishes from time to
time.
|
1
| 8. |
DEALER'S
DUTIES
In
addition to and subject to the other provisions of this Agreement,
DEALER
shall:
|
|
(a)
|
Actively
cooperate with TAIS to develop the maximum sales consistent with
the
potential of the TERRITORY and assist TAIS in the distribution of
promotional, advertising and display materials. DEALER shall purchase
new
AUTHORIZED PRODUCTS only from TAIS unless approved in advance by
the
Digital Solutions Divison’s Vice President Sales &
Marketing.
|
| (b) |
Ensure
that DEALER's personnel are properly trained in sales, installation
and
service, and have one (TAIS-trained) certified technician for each
AUTHORIZED PRODUCT line sold; and upon request from TAIS, provide
TAIS
with the name(s) of its TAIS-trained and certified technicians.
Technical
support pin numbers assigned to DEALER shall be used by DEALER
personnel
only. Use of DEALER's technical support pin numbers by unauthorized
personnel is a material breach of this
Agreement.
|
| (c) |
Provide
competent installation, service, and other maintenance and service
for all
AUTHORIZED PRODUCTS, use best efforts to provide service and maintenance
of other products when requested by TAIS, and properly store and
handle
all AUTHORIZED PRODUCTS;
|
| (d) |
Maintain
adequate inventories of AUTHORIZED PRODUCTS and comply with such
requirements as TAIS may establish with respect to minimum spare
parts
inventories for service purposes;
|
| (e) |
Provide
adequate end-user training to ensure proper operation of TAIS products
purchased;
|
| (f) |
Actively
participate in the resolution of customer complaints and comply with
all
sales, advertising, operations, credit, marketing, Internet, installation,
warranty, maintenance service, training, and other policies and procedures
set forth in this Agreement or which TAIS may establish from time
to time
for its authorized telecommunication dealers, and advise all end
users of
TAIS warranty policy.
|
| (g) |
Comply
with all applicable Federal, State and local laws, regulations and
licensing requirements, including, but not limited to, the United
States
Export Administration Act of 1979, as amended from time to time;
and
|
| (h) |
Upon
request by TAIS, provide TAIS with a record of DEALER's Authorized
product
sales and inventory levels for each month, in a manner acceptable
to TAIS,
for each office of record, and provide TAIS with a forecast of DEALER's
estimated future purchases for AUTHORIZED PRODUCTS within the DEALER's
designated territory.
|
| (i) |
Maintain
at each office of record, a properly functioning current TAIS telephone
system to be used as a demonstration unit for end-user prospects
and/or
have a TAIS Demo Kit available, as ▇▇▇▇ ▇▇▇▇▇
appropriate.
|
| (j) |
TAIS
conducts its business in accordance with the highest professional
and
ethical standards. TAIS policy prohibits the solicitation or acceptance
of
any bribe, kickback, or gratuity by any TAIS employee in the transaction
of its business. The payment of any bribe, kickback, or gratuity
is not a
condition for doing business with TAIS. Dealer shall report any
violation
of this policy to the Division Vice President, General Manager
and to the
President, Toshiba America Information Systems, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
|
| (k) |
Not
remove, replace, obliterate, alter, conceal, cover, or otherwise
destroy
all or any portion of any label, tag, plate, or other material
which
displays or contains the original manufacturer's serial number
for any
Authorized Products, and also not knowingly assist, aid, or abet
any other
person or business entity engaging in any of the activities referred
to in
this section 8(k).
|
| (l) |
Dealer
will have unlimited access to real-time and recorded training sessions
via
Toshiba T.U.T.O.R./Centra Distance Learning. Dealer will be billed
$250.00
quarterly for access to this service. Dealer will be allowed unlimited
number of accounts for access to the T.U.T.O.R. service. Dealer
will, upon
request from Toshiba, verify status of their employees accounts
in Toshiba
T.U.T.O.R.
|
| 9. |
PURCHASE
OBJECTIVES AND COMMITMENTS
Consistent with DEALER's obligations hereunder to aggressively promote
AUTHORIZED PRODUCTS and penetrate the market for AUTHORIZED PRODUCTS
in
the TERRITORY, DEALER acknowledges that TAIS may establish for DEALER,
from time to time, minimum purchase objectives for AUTHORIZED PRODUCTS.
Such objectives may be established by TAIS in its discretion taking
into
consideration such factors as the size of, population in and the
potential
of the TERRITORY; competition in the marketplace; the prior performance
of
DEALER or other dealers in the TERRITORY or other geographic areas;
projections of sales made by DEALER or TAIS staff; and such other
financial and market factors TAIS may deem pertinent. TAIS may consult
with DEALER concerning such objectives but TAIS will have the final
authority to establish them. DEALER's purchase objectives are set
forth on
Schedule "C" hereto, for the period(s) reflected thereon. Revised
purchase
objectives for future periods or for territorial revisions will be
set
forth in new Schedules "B" or "C", sent to Dealer and signed by TAIS
Vice
President-Sales & Marketing, Digital Solutions Division. In addition
to purchase objectives, TAIS and DEALER may also agree in writing
on
minimum purchase commitments on a yearly, quarterly or other
basis.
|
2
| 10. |
PURCHASES
DEALER shall order and purchase AUTHORIZED PRODUCTS from TAIS in
accordance with the terms and conditions of this Agreement and in
accordance with such other terms, conditions and procedures established
by
TAIS from time to time. Such other terms, conditions and procedures
may be
set forth by TAIS in written communication, such as dealer manuals,
bulletins, letters, or the like. Without limiting the generality
of the
foregoing, the following terms will be deemed incorporated in all
orders
by DEALER and TAIS's acceptance of such orders is expressly made
conditioned on the following:
|
| (a) |
All
list prices are subject to change by TAIS without notice, except
that TAIS
shall use its best efforts to give thirty (30) days prior notice
to DEALER
of price increases. All prices, unless otherwise specified shall
not
include any applicable Federal, state or local sales, excise, use
or
similar taxes, all of which shall be the responsibility of DEALER.
|
| (b) |
All
requests for credit due to pricing or discount disputes must be received
by TAIS’s Customer Service Department within sixty (60) days of the
invoice date, otherwise DEALER waives the right to receive any such
credit.
|
| (c) |
All
prices are F.O.B. point of shipment. TAIS shall be deemed to have
delivered all AUTHORIZED PRODUCTS and related goods at point of
shipment.
All risk of loss or damage shall pass to DEALER at the point of
shipment.
Dealer shall bear all costs of freight, freight insurance and associated
costs. Within thirty (30) days after receipt of any AUTHORIZED
PRODUCTS,
DEALER shall notify TAIS in writing of any shortage, damage or
defects in
such AUTHORIZED PRODUCTS and failure to do so shall be deemed conclusive
proof that such shortage, damage or defects are not attributable
to the
fault of TAIS and shall constitute a waiver of all claims against
TAIS
arising out of such shortage, damage or
defects.
|
| (d) |
The
"Fiscal Year Quota For Period" listed on Schedule "C" (discounts
for other
TAIS authorized products may be reflected on Schedule “E”) will be used to
determine DEALER's sales discount from the TAIS DEALER price list
for
AUTHORIZED PRODUCTS in accordance with TAIS standard sales discount
policy
as set forth in Schedule "C" hereto, but TAIS may, at its sole and
absolute discretion, adjust a DEALER’s initial sales discount based on the
DEALER’s past sales performance.
|
| (e) |
TAIS
will invoice the DEALER and the DEALER shall pay TAIS, in accordance
with
such payment and credit terms as are established for DEALER by TAIS
from
time to time in TAIS sole discretion. TAIS reserves the right to
revoke at
any time any credit extended to the DEALER because of the DEALER's
failure
to pay for any goods when due or for any other reason deemed good
and
sufficient by TAIS.
|
| (f) |
If
DEALER fails to pay TAIS in accordance with the payment and credit
terms
established for DEALER by TAIS, then such failure shall constitute
a
material default of this Agreement and TAIS may refuse to make any
further
deliveries of AUTHORIZED PRODUCTS, may at its option accelerate and
deem
immediately due all sums DEALER owes to TAIS and may assert any other
legal right against DEALER permitted by law or set forth in the payment
or
credit terms established by TAIS, including but not limited to the
payment
of interest to TAIS on past due invoices. DEALER shall indemnify
and hold
harmless TAIS against all interest and costs of collection, including,
but
not limited to, expenses and attorney
fees.
|
| (g) |
Delivery
dates given by TAIS for orders for AUTHORIZED PRODUCTS placed by
DEALER
shall be considered TAIS estimates only and TAIS shall not be deemed
to
have accepted any order until the AUTHORIZED PRODUCTS are shipped
by TAIS
to the DEALER. TAIS reserves the right to apportion AUTHORIZED PRODUCTS
among its customers in its sole discretion. In the event TAIS fails
to
deliver AUTHORIZED PRODUCTS in accordance with the agreed upon delivery
dates, DEALER may cancel the Purchase Order upon written notice to
TAIS,
provided that TAIS shall have five (5) business days from receipt
of such
notice to commence the delivery.
|
| (h) |
DEALER
is encouraged to order AUTHORIZED PRODUCTS using TAIS's FYI Order
Entry
System. DEALER acknowledges that the FYI system contains proprietary
information, such as, pricing, sales, technical and other data to
TAIS and
DEALER. DEALER will not divulge such data to third parties without
the
written consent of TAIS's Vice President, Operations. It is the DEALER's
Responsibility to notify TAIS of any personnel changes which may
involve
FYI Access Rights. DEALER will hold harmless TAIS for any breach
thereof.
|
| 11. |
SERVICE
RESPONSIBILITY
DEALER acknowledges that the AUTHORIZED PRODUCTS require installation,
warranty, and after-sale servicing and maintenance by a skilled,
TAIS-trained certified technician. DEALER agrees to provide professional,
prompt, and expert installation, service support, and end-user training
for all AUTHORIZED PRODUCTS sold in the TERRITORY. Without limiting
the
generality of the foregoing, DEALER
shall:
|
| (a) |
Strictly
adhere to all installation, service and parts inventory policies
and
guidelines established by TAIS from time to time for its
dealers.
|
| (b) |
Maintain
proper installation and servicing tools and
facilities.
|
| (c) |
Employ
a sufficient number of TAIS-trained and certified technicians for
each
TAIS AUTHORIZED PRODUCT line sold so as to ensure that each installation
and service call for an AUTHORIZED PRODUCT is personally handled
only by a
technician who has been properly trained for such AUTHORIZED PRODUCT
and
send its appropriate service technicians and other personnel, as
TAIS may
require, to service schools or
seminars.
|
3
| (d) |
Maintain
appropriate service history records for the AUTHORIZED PRODUCTS as
are
necessary and appropriate for the business of DEALER and as may be
required in accordance with standards established by TAIS from time
to
time.
|
| (e) |
Use
its best efforts to make available and provide competent maintenance
and
service support, in a commercially reasonable manner, to all end
users of
AUTHORIZED PRODUCTS (and other products as TAIS may request in
writing) in
the TERRITORY, irrespective of whether the AUTHORIZED PRODUCT was
sold to
the end user by DEALER.
|
WARRANTY
POLICY
| 12. |
INDEMNIFICATION
DEALER shall indemnify and hold harmless TAIS, including the payment
of
TAIS attorney fees and costs, in the event that DEALER makes any
warranty
or representation which is inconsistent with, different, or in addition
to
the TAIS warranty contained in the Agreement, or other warranty which
is
specifically authorized by TAIS in writing, including but not limited
to
the limited warranty for national accounts as defined in Section
21.
|
| (a) |
All
new AUTHORIZED PRODUCTS manufactured by Toshiba purchased by DEALER
are
presently subject to a twenty-four (24) month warranty given by TAIS
(all
used or refurbished products are sold "as is") except as otherwise
provided by TAIS in the TAIS warranty accompanying the AUTHORIZED
PRODUCT
and/or posted on TAIS Authorized website (FYI). AUTHORIZED PRODUCTS
which
are not manufactured by Toshiba but are purchased by DEALER will
be
subject to the warranty provisions provided by the equipment manufacturer,
unless TAIS notifies DEALER of any additional warranty provisions.
Notification shall be in writing and will be posted on FYI. The new
AUTHORIZED PRODUCT warranty, WHICH RUNS TO THE END USER, is as
follows:
|
TOSHIBA
AMERICA INFORMATION SYSTEMS, INC.
END-USER
LIMITED WARRANTY
Toshiba
America Information Systems, Inc. ("TAIS") warrants that the telephone equipment
manufactured by Toshiba (except for fuses, lamps and other consumables) will,
upon delivery by TAIS or an authorized TAIS dealer to a retail customer in
new
condition, be free from defects in material and workmanship for twenty-four
(24)
months after delivery except as otherwise provided by TAIS in the TAIS warranty
accompanying the AUTHORIZED PRODUCT and/or posted on TAIS’s website.. This
warranty is void if: (a) if the equipment is used under other than normal use
and maintenance conditions; (b) if the equipment is modified or altered, unless
the modification or alteration is expressly authorized by TAIS; (c) if the
equipment is subject to abuse, neglect, lightning, electrical fault, or
accident, (d) if the equipment is repaired by someone other than TAIS or an
authorized dealer, (e) if the serial number of the equipment is defaced or
missing; or (f) if the equipment is installed or used in combination or in
assembly with products not supplied by TAIS and which are not compatible or
of
inferior quality, design or performance.
The
sole
obligation of TAIS or Toshiba Corporation under this warranty, or under any
other legal obligation with respect to the equipment, is the repair or
replacement of such defective or missing parts as are causing the malfunction
by
TAIS or its AUTHORIZED DEALER, with new or refurbished parts (at their option).
If TAIS or one of its authorized dealers does not replace or repair such parts,
the retail customer's sole remedy will be refund of the price charged by TAIS
to
its dealers for such parts as are proven to be defective, and which are returned
to TAIS through one of its authorized dealers within the warranty period and
no
later than thirty (30) days after such malfunction, whichever first occurs.Under
no circumstances will the retail customer or any user or dealer or other person
be entitled to any direct, special, indirect, consequential or exemplary
damages, for breach of contract, tort, or otherwise. Under no circumstances
will
any such person be entitled to any sum greater than the purchase price paid
for
the item of equipment that is malfunctioning.
To
obtain
service under this warranty, the retail customer must bring the malfunction
of
the machine to the attention of one of TAIS authorized dealers within the
applicable warranty period and no later than thirty (30) days after such
malfunction, whichever first occurs. Failure to bring the malfunction to the
attention of an authorized TAIS dealer, within the prescribed time, results
in
the customer being not entitled to warranty service.
THERE
ARE NO OTHER WARRANTIES FROM EITHER TOSHIBA AMERICA INFORMATION SYSTEMS, INC.
OR
TOSHIBA CORPORATION WHICH EXTEND BEYOND THE FACE OF THIS WARRANTY. ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND FITNESS FOR USE, ARE
EXCLUDED.
No
TAIS
dealer and no person other than an officer of TAIS may extend or modify this
warranty. No such modification or extension is effective, unless it is in
writing and signed by the Vice President, General Manager, Telecommunication
Systems Division.
| (b) |
TAIS
warrants to DEALER that each new AUTHORIZED PRODUCT manufactured
by
Toshiba will be free from defects in material and workmanship for
a period
of twenty-four months after the delivery of the AUTHORIZED PRODUCT
to
DEALER by TAIS or until sale by DEALER to an end user, whichever
occurs
first ”) except as otherwise provided by TAIS in the TAIS warranty
accompanying the AUTHORIZED PRODUCT. Installation
by DEALER of new AUTHORIZED PRODUCTS purchased from other than TAIS
shall
constitute a material breach of this Agreement unless approved in
advance
by the Vice President - National Sales.
DEALER'S
WARRANTY IS SUBJECT TO THE SAME LIMITATIONS AND EXCLUSIONS (INCLUDING
THOSE EXCLUDING MERCHANTABILITY) AS THE END USER'S LIMITED WARRANTY
(SEE
SECTION 12(a) ABOVE).
|
4
| (c) |
Neither
DEALER nor any other person may extend any TAIS warranty or modify
it in
any respect. No modification or extension of TAIS's warranty is effective
unless it is in a writing signed by TAIS Vice President, General
Manager,
Telecommunication Systems Division. DEALER shall notify TAIS of any
claimed defect in any AUTHORIZED PRODUCT within thirty (30) days
of its
occurrence, by the giving of a written report setting forth all pertinent
details including a description of the defect and the time and place
of
occurrence.
|
| (d) |
In
the event DEALER elects to give a warranty to an end user which is
in
addition to or greater than the TAIS warranty in section 12(a) above,
then
the DEALER shall be solely responsible for such warranty and shall
indemnify and hold harmless TAIS against any claims based upon or
arising
out of such warranty, including TAIS's attorney fees and costs. DEALER
shall communicate in writing to the end user that the DEALER's warranty
is
in addition to or different from the TAIS warranty and that TAIS
shall
bear no responsibility whatsoever for such warranty. DEALER's failure
to
communicate to the end user as required herein shall constitute a
material
default of this Agreement.
|
| (e) |
DEALER
shall make certain that its sales and service personnel do not make
representations about AUTHORIZED PRODUCTS unless those representations
are
made by TAIS's own literature. DEALER shall make certain that all
end
users are aware of the terms of the TAIS warranty prior to the sale
of an
AUTHORIZED PRODUCT to an end user. DEALER shall prepare or cause
an end
user to prepare and forward to TAIS any warranty registration materials
or
the like which TAIS may require.
|
| (f) |
DEALER
is responsible for insuring that every end user obtains whatever
warranty
service an end user (which purchased from DEALER) deserves under
the TAIS
warranty. TAIS sole responsibility shall be to repair AUTHORIZED
PRODUCTS
under warranty, in accordance with the procedures set forth in TAIS
warranty policy, which TAIS may establish from time to time. If requested
by TAIS in writing, DEALER shall also use best efforts to assist
in
providing warranty service for AUTHORIZED PRODUCTS or other products
in
the TERRITORY, sold or marketed by persons other than
DEALER.
|
| (g) |
Replacement
parts and repaired equipment out-of-warranty will carry a ninety
(90) day
warranty on the part, assembly or component that was replaced or
repaired
and shall be subject to the same limitations and exclusions as TAIS
new
product warranty.
|
| (h) |
TAIS
reserves the right at any time to amend or modify its warranty policy
for
end users or for DEALER, including any limitations or exclusions
applicable thereto, provided that such is done in a writing signed
by TAIS
Vice President, General Manager, Telecommunication Systems
Division.
|
| (i) |
If
DEALER does not follow TAIS warranty policy, DEALER shall be legally
responsible for any damages or expenses that arise beyond those expressly
owed by TAIS under its warranty
policy.
|
DURATION
AND TERMINATION
| 13. |
This
Agreement shall originally be for a term ending on the March 31st
which
follows the date of this Agreement, shall automatically renew for
successive one (1) year periods, unless TAIS gives notice of termination
at least thirty (30) days prior to the next March 31st of the then
current
Agreement period, and shall not be terminable by TAIS during such
period
except as provided in section 13(a) below. Such notice of termination
may
be given by TAIS for any reason, with or without cause, and, if given,
termination shall be effective March 31st of the then current Agreement
period. DEALER may terminate this Agreement at any time for any reason,
upon the giving of thirty (30) days prior written notice to TAIS.
In
consideration for entering into this Agreement, DEALER waives any
right to
claim any damages, whether direct, indirect, incidental, consequential,
special, exemplary, or punitive arising out of the termination of
the
Agreement in accordance with section 13 or section 13(a). In the
event
DEALER shall make any such allegation, then upon motion by TAIS,
such
allegation shall be dismissed.
|
| (a) |
Notwithstanding
anything to the contrary contained in this Agreement, TAIS may terminate
this Agreement by giving DEALER thirty (30) days prior written notice
in
the event of any default or failure by DEALER in the performance
of any of
its duties, obligations or responsibilities under this Agreement.
This
AGREEMENT shall automatically terminate if the DEALER makes an assignment
or otherwise changes ownership in violation of Section 14
hereof.
|
| (b) |
Upon
termination of this Agreement, DEALER shall pay to TAIS any debit
balance
it has with TAIS and, should DEALER's account be debited by TAIS
thereafter in accordance with this Agreement, DEALER shall promptly
pay
such debts in full.
|
| (c) |
Upon
termination of this Agreement for whatever reason, DEALER shall remain
obligated and responsible to provide warranty and other necessary
service
and maintenance to all end users to whom DEALER sold or otherwise
marketed
AUTHORIZED PRODUCTS. In case of a government, national, rental or
major
account covered by a program implemented by TAIS pursuant to section
21 of
this agreement, DEALER shall, if required by TAIS in writing, transfer
the
service arrangements for such (and any prorated prepayments received
by
DEALER for unexpired service and maintenance) to such other persons
as
TAIS may designate.
|
| (d) |
Upon
termination of this Agreement, DEALER becomes a "Maintenance Only"
Dealer
with TAIS under the terms of which DEALER is allowed to purchase,
at list
price, replacement parts, spares and additions (but not enhancements)
for
AUTHORIZED PRODUCTS in accordance with terms to be mutually agreed
upon
between the parties but, this "MAINTENANCE ONLY" arrangement may
be
revoked by TAIS, at its sole discretion at any time. The acceptance
by
TAIS of any purchase order from the DEALER or the sale of any Toshiba
AUTHORIZED PRODUCTS by TAIS to DEALER after the termination of this
AGREEMENT shall not be construed as a renewal or an extension, or
as a
waiver of termination of this AGREEMENT, but in the absence of a
new
written Agreement, all such transactions shall be governed by the
provisions of this Agreement.
|
| 14. |
ASSIGNMENT
AND OWNERSHIP
DEALER may not assign this Agreement or its rights hereunder, or
enter
into any subdealer or joint venture arrangements concerning AUTHORIZED
PRODUCTS, or cause or suffer any change in DEALER's senior management,
control or principal ownership, without the prior written consent
of TAIS
Vice President, General Manager, Digital Solutions Division. TAIS,
on
thirty (30) days notice to DEALER may assign this Agreement or TAIS
rights
hereunder to a TAIS affiliate
company.
|
5
| 15. |
SECURITY
INTEREST DEALER
hereby grants to TAIS a security interest in all AUTHORIZED PRODUCTS,
now
owned by DEALER or hereafter acquired by DEALER (the "collateral")
and in
the proceeds of and products of such collateral (including but not
limited
to all accounts receivable and the proceeds of any insurance covering
the
collateral, credits, and commissions). This security interest shall
secure
the payment by DEALER of all monies now due or which hereafter become
due
to TAIS and shall secure to TAIS the full performance by DEALER of
its
obligations under this Agreement. Any failure by DEALER to make any
payment and/or failure to fully perform any of its obligations under
this
Agreement shall constitute a default for purposes of any law pertaining
to
TAIS's rights as a secured party. DEALER hereby authorizes TAIS to
sign on
behalf of DEALER and file in any jurisdiction, with or without the
signature of DEALER, financing statements with respect to this security
interest.
|
| 16. |
FINANCIAL
STATEMENTS
DEALER shall furnish yearly to TAIS, on request, a full and accurate
detailed written statement of DEALER's financial condition, including
DEALER's then current balance sheet, profit and loss statement, and
such
interim statements as TAIS may request. DEALER certifies that the
statements are an accurate representation of its financial condition
and
are certified by DEALER's certified public accountant or its chief
financial officer. TAIS shall not disclose any financial data received
from DEALER to persons outside Toshiba America Information Systems,
Inc.
without DEALER's prior authorization, except to such financial
institutions providing leasing or financing to
DEALER.
|
TRADEMARKS,
TRADE NAMES AND GOODWILL
| 17. |
DEALER
hereby acknowledges the validity of the trademarks TOSHIBAâ,
STRATA,â
PERCEPTIONâ,
STRATAGY’,
INTOUCH, and other marks and trade names now or hereafter affixed
to
AUTHORIZED PRODUCTS used in connection with TAIS's business, and
DEALER
agrees that such are exclusively owned by TAIS or its parent corporation
and that DEALER shall not contest same. DEALER agrees not to remove
such
marks or names from PRODUCTS, or alter or deface same.
|
| (a) |
DEALER
is hereby granted a non-exclusive right to use in the TERRITORY in
connection with AUTHORIZED PRODUCTS, such trademarks or names as
TAIS uses
in connection with such PRODUCTS and refer to itself as an Authorized
Toshiba Telecommunication DEALER, in connection with the promotion,
sale,
marketing or service of AUTHORIZED PRODUCTS in the TERRITORY, but
all such
rights shall cease immediately upon the termination of this
Agreement.
|
| (b) |
Notwithstanding
the foregoing, DEALER shall not use, and is strictly prohibited from
using, any such trademarks or trade names as part of DEALER's trademarks
or names or in any manner which TAIS concludes, in its sole judgment,
is
unfair, confusing or misleading to the public or which otherwise
adversely
reflects upon the good name and reputation of TAIS or its parent
corporation.
|
| (c) |
The
parties acknowledge that the goodwill associated with the marketing
of
AUTHORIZED PRODUCTS belongs to TAIS and that DEALER shall have no
vested
or proprietary rights thereto.
|
| 18. |
SOFTWARE,
COPYRIGHTS, AND OTHER INTELLECTUAL PROPERTY
DEALER hereby acknowledges the validity of all copyrights registered
by or
in favor of Toshiba America Information Systems, Inc. or Toshiba
Corporation in respect of software and any other works which may
be
copyrighted. DEALER agrees that it will comply with any licensing,
sublicensing or other program which TAIS may from time to time implement
with respect to software used in connection with AUTHORIZED PRODUCTS.
DEALER shall not enhance or in any way alter any such software. Any
alteration to any software also voids any warranty given by TAIS
with
respect thereto.
DEALER
shall treat as confidential all non-public technical, Marketing,
price and
other information supplied by TAIS, and shall not publish, display,
distribute or otherwise use for its own benefit (including via The
Internet of other electronic transmissions) any such TAIS information,
without the express written consent of the Vice President, General
Manager
of TAIS.
|
| 19. |
INDEPENDENT
CONTRACTOR RELATIONSHIP
DEALER specifically acknowledges and agrees that: (a) it is an independent
contractor; (b) neither the DEALER, nor any of the DEALER's employees,
are
employees of TAIS under the meaning or application of any law; (c)
this
Agreement shall not be construed as a franchise and DEALER shall
not be
deemed a franchisee, under any circumstance whatsoever; (d) DEALER
shall
not hold itself out as an agent of TAIS; (e) DEALER shall not commit
TAIS
to any contractual obligation nor make any warranties or statements
ostensibly on behalf of or approved by TAIS with respect to AUTHORIZED
PRODUCTS other than those set forth in TAIS advertising and warranty
literature; (f) DEALER shall not engage in any conduct in violation
of
Federal, state, or local laws or regulations with respect to the
performance of this Agreement; and (g) any breach of the terms of
this
section 19 shall be deemed a material default of this
Agreement.
|
| 20. |
EXCUSE
OF PERFORMANCE
TAIS shall not be liable for failure to deliver, delays in delivery or
failures to perform under this Agreement occasioned, in whole or
in part,
by strikes, lockouts, embargoes, war or other outbreak of hostilities,
inability to obtain materials or shipping space, inability or refusal
to
pay for or obtain Bid or Performance Bonds, machinery breakdown,
delays of
carriers or suppliers, governmental acts and regulations, acts of
God,
receipt of orders in excess of TAIS inventory or then scheduled delivery
capacity or any unforeseen circumstances or causes beyond TAIS's
reasonable control.
|
| 21. |
GOVERNMENT,
NATIONAL AND MAJOR ACCOUNTS
TAIS and DEALER acknowledge that, in order to maximize market penetration
for AUTHORIZED PRODUCTS, it is appropriate for DEALER, other authorized
TAIS dealers, or TAIS directly, to sell or otherwise market AUTHORIZED
PRODUCTS to major end user accounts, including national accounts
(which
are defined as multi-location end-user companies that centrally select,
standardize, and procure their telecommunications equipment for their
own
use) and federal, state, and local government accounts, some of whom
may
have multiple end user locations in different geographic areas, including
areas within or outside the TERRITORY. In such instances, it may
be
necessary for TAIS, DEALER or other authorized TAIS dealers to make
arrangements with each other, to ensure proper installation, warranty
and
regular service and maintenance. DEALER
shall:
|
| (a) |
Abide
by the terms and conditions of the TAIS National Account Program
and the
National Account Maintenance and Service Programs as established
by TAIS
from time to time and more fully defined in the National Accounts
Policy
and Procedures Manual (NAP Manual).
|
| (b) |
Act
as an independent contractor without any authority to bind or obligate
TAIS as in accordance with Section 19 of the Telecommunication DEALER
Agreement. TAIS shall be bound or obligated in a National Account
transaction only after the necessary approval documents are executed
by
the appropriate TAIS employee.
|
6
| (c) |
Sell
AUTHORIZED PRODUCTS within the scope, and under the Terms and Conditions
of the National Accounts Program to customers who purchase or are
headquartered within their Territory as defined in Schedule(s) B.
An
Originating Dealer is defined as a Dealer approved by TAIS that is
the
"selling" Dealer. The Originating Dealer establishes a "selling"
relationship with a National Account by filing a Request For Originating
Dealer status form (ROD) with the TAIS National Account Program
Coordinator's office and with the approval of the National Account
Program
Sales Manager for the DEALER.
|
| (d) |
Only
quote TAIS standard equipment purchase, installation, service rates
and/or
maintenance prices, as TAIS may establish from time to time, to a
National
Account, unless otherwise authorized in writing by the TAIS National
Account Sales Manager. A National Account sale is completed after
a TAIS
Master Pricing Agreement is executed by the National Account, the
Originating Dealer, and TAIS. The Originating Dealer will procure
orders
from the National Account Customer and submit the orders on the TAIS
National Account Purchase Agreement form. Upon receipt by TAIS of
a
properly executed Delivery and Acceptance letter, TAIS will (a) invoice
the National Account and (b) issue all appropriate credits for
commissions, installation, service and maintenance fees to both the
Originating and Installing and Maintenance Dealers (TAIS will be
responsible for all invoicing, credit and collections to/from the
National
Account customer).
|
| (e) |
Assume
the entire responsibility and liability for losses, expenses, demands
and
claims in connection with or arising out of any injury, including
death,
to any person, or damage, or alleged damage, to any property of the
National Account Customer, or others, sustained in connection with,
or
alleged to have arisen out of, or resulting from the performance
of the
work by the DEALER, its agents, and employees, including losses,
expenses
or damages sustained by the National Account Customer. DEALER agrees
to
indemnify and hold harmless the National Account Customer, the Originating
and/or Installing Dealer, and TAIS, their agents, and employees from
any
and all such losses, expenses, damages, demands and claims, including
attorney fees and costs, and agrees to defend any suit or action
brought
against them or any of them, based on any such alleged injury or
damage,
and further agrees to pay all damages, costs, and expenses in connection
therewith or resulting therefrom. DEALER is liable for its sole negligence
and/or willful misconduct, and shall not be liable for the negligence
or
willful misconduct of others.
|
| (f) |
Obtain
General Liability Insurance in the amount of $1.0 Million and a
Certificate of Insurance naming TAIS as an additional insured party.
The
insurance shall be maintained with an approved insurance carrier
of at
least an AAA rating, and shall cover the obligations of the DEALER
set
forth in Section 21(e). DEALER warrants that it shall provide proof
of
said insurance to TAIS prior to participating in the National Accounts
Program.
|
| (g) |
Use
its best efforts to cooperate with and assist TAIS and other authorized
TAIS dealers. DEALER agrees to accept assignments from TAIS for system
additions, service and/or maintenance and agrees to perform the work
in
the time frames TAIS has committed to and at the rates published
in the
NAP Manual or otherwise contracted for by
TAIS.
|
| (h) |
Comply,
if asked, to perform a TAIS National Account or TAIS Government System
Site Survey within its prescribed geographical area as stated on
Schedule
B(s) hereto.
|
| (i) |
Honor
the established relationship that exists between the TAIS prospective
or
existing National Account and the Originating Dealer or TAIS and
the
prospective or existing Government
Agency.
|
| (j) |
Provide
TAIS with substantiation of sales to government or to non-profit
organizations in a form satisfactory to TAIS. DEALER warrants that
all
AUTHORIZED PRODUCTS ordered from TAIS for government system or non-profit
organizations installations; shall be installed at the government
agency
or non-profit organization sites. DEALER shall not transfer such
AUTHORIZED PRODUCTS to a non-government agency installation or other
installation site. Violation of this provision shall constitute just
cause
for termination.
|
| (k) |
Honor
the National Account Program Requirements and relationships as defined
in
section 21(i) of this Telecommunication Dealer Agreement. TAIS is
the sole
arbitrator in any conflicts or disputes arising from the National
Account
Program.
|
| 22. |
ENTIRE
AGREEMENT
This Agreement, including any attached schedules or addenda, constitutes
the entire Agreement of the parties with respect to its subject matter.
There are no other Agreements pertaining to the subject matter hereof,
either oral or written. No contrary, different or additional terms
will
apply to transactions contemplated by this Agreement, even if such
terms
are contained on DEALER's purchase order forms or on other documents
sent
to TAIS by DEALER. DEALER agrees that all prior written or oral
communications with TAIS regarding this Agreement are superseded
by the
terms of this Agreement. DEALER acknowledges that it has had an
opportunity to review this Agreement independently and with counsel
prior
to signing, and that it has not relied upon any prior written or
oral
representations by TAIS in signing this Agreement. DEALER states
that it
was not induced into signing this Agreement, and hereby waives any
right
to claim fraudulent inducement in the execution hereof. In other
words,
the only contract or Agreement regarding the subject matter hereof
is
contained in the Agreement without
exception.
|
| 23. |
POST-EXECUTION
MODIFICATIONS AND WAIVER
With the exception of Schedules A, B, C, E, and Section 24 (b), which
may
be modified or amended unilaterally by TAIS at any time upon thirty
(30)
days written notice to dealer, once this Agreement is executed by
TAIS and
DEALER, this Agreement may not be modified or amended except in a
writing
signed by DEALER and by TAIS Vice President, General Manager Digital
Solutions Division. Either party may waive, in writing, a provision
in
this Agreement which is for its benefit, but such provision shall
not
otherwise be deemed waived. A waiver of any provision in any one
instance
shall not be deemed a waiver of any provision in any other
instance.
|
| 24. |
EXPORT
AND STATEMENT OF ASSURANCE
|
| (a) |
This
Agreement involves products and/or technical data that may be controlled
under the U.S. Export Administration Regulations, and may be subject
to
the approval of the U.S. Department of Commerce prior to export.
Any
export, directly or indirectly, in contravention of the U.S. Export
Administration Regulations is strictly
prohibited.
|
| (b) |
Dealer
agrees to comply with the TAIS Statement of Assurance which reads
as
follows with Dealer as “We” and TAIS as “you”:
We
receive from you commodities, software, and technical data that
are
governed by the provisions of the U.S. Export Administration Regulations
and other U.S. export control laws referred to therein (“EAR”). We
therefore agree to comply with said U.S. Export Administration
Regulations
as they pertain to exports. We hereby certify that, unless authorized
by
U.S. law (either by regulation or specific written authorization),
we
shall not knowingly export or reexport, directly or indirectly,
any of
these products, or the direct product thereof, to any of the following
nations or nationals thereof, as the same may be amended in the
U.S.
Export Administration Regulations from time to
time:
|
▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Cambodia,China (PRC), Cuba, Estonia,
Georgia, Iran, Iraq, Kazakhstan,North Korea, Kyrgyzstan, Laos, Latvia, Libya,
Lithuania, Macau, Moldova,Mongolia, Romania, Russia, Sudan, Syria, Tajikstan,
Turkmenistan,Ukraine, Uzbekistan, Vietnam
We
also
acknowledge that it is unlawful to export or reexport (without U.S. Government
permission) Toshiba products, technology or software if we know that they are
(a) destined for any missile technology project listed in the footnote to
Country Group D:4 (Supplement No. 1 to EAR Part 740); (b) will be used in the
design, development, production, or use of missiles in or by a country listed
in
Country Group D:4 (Supplement No. 1 to EAR Part 740) whether or not that use
involves a listed project; (c) will be used in the design, development,
production, stockpiling, or use of chemical or biological weapons in or by
a
country listed in Country Group D:3 (Supplement No. 1 to EAR Part 740); or
(d)
will be used in any destination except those listed in Supplement No. 3 to
EAR
Part 744 for sensitive nuclear end-uses; or if we are informed by the U.S.
Government that a validated license is required to export to this consignee
because it may apply to such end-uses.
MISCELLANEOUS
PROVISIONS
| 25. |
This
Agreement shall be construed and governed in accordance with the
laws of
the State of California.
|
| 26. |
Should
any provisions of this Agreement be held invalid or unenforceable,
the
remaining provisions shall nevertheless be given full force and effect.
In
any judicial proceeding related to or arising out of or in connection
with
this Agreement, or the conduct of the parties with respect to the
goods
covered by this Agreement, or the breach of this Agreement or of
any law
applicable to the conduct of the parties, the matter shall be tried
and
determined by a judge alone, without a
jury.
|
| 27. |
Wherever
in this Agreement the consent or authorization of TAIS by a TAIS
employee
of specific corporate position is required, only such person or a
TAIS
employee of higher corporate position may bind
TAIS.
|
| 28. |
This
Agreement shall not be binding upon TAIS until it has been executed
by
TAIS Vice President, General Manager, Digital Solutions
Division.
|
| 29. |
If
this Agreement is executed in duplicate, each copy will be considered
an
original, but both taken together shall constitute but one
Agreement.
|
| 30. |
The
person executing this Agreement on behalf of DEALER represents and
warrants that he is duly authorized to bind DEALER and the DEALER
has
authorized him to execute this Agreement on behalf of
DEALER.
|
| 31. |
All
notices required to be given hereunder shall be in writing and may
be sent
to the other party at its office indicated below, or to DEALER at
its
primary office or record, or as such party may later change by notice
in
writing. Notices sent by mail shall be deemed given when deposited
in the
mail and notices given by other means shall be deemed given when
received
by the party to whom such notice is addressed; provided, however,
that for
purposes of sections 10(c), 10(g), 12(c) 13, and 13(a) of this Agreement,
notice shall be given either by mail requiring a return receipt or
overnight express carrier.
|
| 32. |
Section
headings used in this Agreement are for convenience only and shall
not be
deemed to affect in any way the interpretation or meaning of the
provisions of this Agreement.
|
END
OF AGREEMENT
-
Signatures and schedules appear on the following pages.
8
IN
WITNESS
WHEREOF, the parties have executed this Agreement as of the date in the heading
on the first page of this Agreement.
| Date: | ||||||
|
(Full
Legal Name of DEALER)
|
||||||
| By | Accepted by: | |||||
|
(Signature)
|
Toshiba America Information Systems, Inc. | |||||
| Digital Solutions Division | ||||||
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. | ||||||
| ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ | ||||||
|
Printed
Name of Person Signing for DEALER
|
||||||
| By | ||||||
|
Title
of Person Signing for DEALER
|
Vice
President, General Manager
|
|||||
|
Digital
Solutions Division
|
||||||
|
Revised
2/2005
|
||||||
|
Legal
Status of DEALER
(Sole-Proprietorship,
Partnership, Corporation)
|
||||||
|
State
in Which Formed
|
||||||
|
Address
of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
|
||||||
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ INFORMATION SYSTEMS, INC.
TELECOMMUNICATION
DEALER AGREEMENT
SCHEDULE
A
DBA
IPTIMIZE, INC.
(Full
Legal Name of Dealer)
In
accordance with sections 5 and 6 of the Toshiba America Information Systems,
Inc. Telecommunication DEALER Agreement, the following is the list of the
AUTHORIZED PRODUCTS, TERRITORY and AUTHORIZED LOCATIONS from which the DEALER
may promote, sell, market and service AUTHORIZED PRODUCTS to end
users.
AUTHORIZED
PRODUCTS LIST
| Strata CTX100 | Strata CIX670 | MCS Products |
| Strata CTX100s | Stratagy Voice Processing Systems | SMIS Products |
| Strata CTX670 | Strata Wireless Products | Strata CS |
| Strata CIX 200 | Insight DK |
Additional
Authorized Products:
None
SCHEDULE
B
AUTHORIZED
TERRITORY AND LOCATIONS
Authorized
Location 00582400 (▇▇▇)
▇▇▇-▇▇▇▇
(303)
268-3639
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Authorized
Counties:
;
▇▇▇▇▇,
CO; Arapahoe, CO; Boulder, CO; Denver, CO; ▇▇▇▇▇▇▇, CO; El Paso, CO; Fremont,
CO; ▇▇▇▇▇▇, CO; Grand, CO; ▇▇▇▇▇▇▇, CO; Jefferson, CO; Larimer, CO; ▇▇▇▇▇▇,
CO;
Park, CO; Summit, CO; Teller, CO; Weld, CO
Authorized
States:
Additional
Selling Territories
| Agreed: | ||||
| Date: | ||||
|
TOSHIBA
AMERICA INFORMATION SYSTEMS, INC.
|
||||
| By: | By: | |||
|
(Signature)
|
Vice
President, General Manager
Digital
Solutions Division
|
|||
|
Printed
Name of Person Signing for DEALER
|
||||
|
Title
of Person Signing for DEALER
|
||||
| Revised 2/05 | ||||
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INFORMATION SYSTEMS, INC.
TELECOMMUNICATION
DEALER AGREEMENT
SCHEDULE
C
PURCHASE
OBJECTIVES & SALES DISCOUNT POLICY
DBA
IPTIMIZE, INC.
(Full
Legal Name of Dealer)
In
accordance with sections 8, 9 and 10 of the Toshiba America Information Systems,
Inc. Telecommunication DEALER Agreement, the
following are
the minimum purchase objectives for AUTHORIZED PRODUCTS, established by Toshiba
America Information Systems, Inc. for DEALER for the
periods indicated:
|
MMINIMUM
PURCHASE OBJECTIVES
|
|||||||
|
APR’05-SEP’05
|
+
|
OCT’05-MAR'06
|
=
|
FISCAL
YEAR ‘05
|
INITIAL
SALES
DISCOUNT
|
||
|
*QUOTA
FOR PERIOD
|
$105,000.00
|
$150,000.00
|
$255,000.00
|
Based
on Prior Qtr Sales
|
|||
*INCLUDES
KEY SYSTEMS, VOICE PROCESSING SYSTEMS, NATIONAL ACCOUNTS, GOVERNMENT PURCHASES
AT NET INVOICED PRICE.
The
discount structure and policy is as follows:
|
*FISCAL
YEAR
|
INITIAL
|
*FISCAL
YEAR
|
INITIAL
|
*FISCAL
YEAR
|
INITIAL
|
|||||
|
*QUOTA
FOR PERIOD
|
DISCOUNT
|
*QUOTA
FOR PERIOD
|
DISCOUNT
|
*QUOTA
FOR PERIOD
|
DISCOUNT
|
|||||
|
(Net
Purchases)
|
LEVEL
|
(Net
Purchases)
|
LEVEL
|
(Net
Purchases)
|
LEVEL
|
|||||
|
$1 - 60,000
|
15.0%
|
420,001 - 780,000
|
27.5%
|
2,280,001
- 5,000,000
|
35.0%
|
|||||
|
60,001 - 180,000
|
20.0%
|
780,001 - 1,440,000
|
30.0%
|
5,000,001
- 6,000,000
|
37.5%
|
|||||
|
180,001
- 420,000
|
25.0%
|
1,440,001
- 2,280,000
|
32.5%
|
$6,000,001
+
|
40.0%
|
A
"NON-PROFIT ORGANIZATION" & "GOVERNMENT STATE & LOCAL" sales discount of
35.0% is available to all DEALERS regardless of their assigned "discount
level"
and are
subject to the provisions stated in Sections 21, 21(I) and 21(J) of the
Agreement provided that such orders are identified as such when received by
TAIS; otherwise the "NON-PROFIT
ORGANIZATION" & "GOVERNMENT STATE & LOCAL"
sales
discounts will be denied. A "GOVERNMENT
STATE & LOCAL SALE"
is
defined as a sale to a DEALER of AUTHORIZED PRODUCTS which will be installed
at
a Local or State government office. A "NON-PROFIT
ORGANIZATION"
is
defined as an organization which satisfies the requirements of the Internal
Revenue Service for non-profit organizations.
*
TAIS FISCAL YEAR is April 1 - March 31
All
purchases of AUTHORIZED PRODUCTS, net of returns, count toward the DEALER's
quota for the period for earned discount.
If
DEALER
does not purchase enough AUTHORIZED PRODUCT to qualify for the assigned discount
level during a given fiscal quarter, TAIS will calculate the appropriate
discount which corresponds to the volume of AUTHORIZED PRODUCTS purchased during
the fiscal quarter and will adjust DEALER’S discount to the earned discount
level for the next quarter. If DEALER qualifies for a discount higher than
the
assigned discount level during a given fiscal quarter, TAIS will calculate
the
appropriate discount which corresponds to the volume of AUTHORIZED PRODUCT
purchased during the fiscal quarter and will increase DEALER’S discount to the
higher level accordingly.
TAIS
will
track DEALER's net purchases each fiscal quarter and will use its best efforts
to notify DEALER if DEALER's net purchases are insufficient to qualify DEALER
for the current discount level.
| Agreed: | ||||
| Date: | ||||
|
TOSHIBA
AMERICA INFORMATION SYSTEMS, INC.
|
||||
| By: | By: | |||
|
(Signature)
|
Vice
President, General Manager
Digital
Solutions Division
|
|||
|
Printed
Name of Person Signing for DEALER
|
Revised
2/05
|
|||
|
Title
of Person Signing for DEALER
|
||||
11