DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement"), is entered into this 6th day of
March, 1997, by and between XXXXXX MICRO INC. ("Ingram"), a Delaware
corporation, having its principal place of business at 0000 X. Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000, and Net Objects, Inc. ("Vendor"), a Delaware
corporation, having its principal place of business at 0000 Xxxxxxxx Xxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000. The parties desire to and hereby do enter into
a distributor/supplier relationship, the governing terms and mutual promises of
which are set out in this Agreement.
1. DISTRIBUTION RIGHTS
1.1. TERRITORY. Vendor grants to Ingram, including its affiliates for
resale, and Ingram accepts, the non-exclusive right to distribute in North,
Central and South America all computer products produced and/or offered by
Vendor ("Product") during the term of this Agreement. Ingram shall have the
right to purchase, sell and ship to any reseller within the territory or to
Xxxxxx'x affiliate, or at Vendor's option Xxxxxx'x affiliate may purchase direct
from Vendor.
1.2. PRODUCT. Vendor agrees to make available and to sell to Ingram such
Product as Ingram shall order from Vendor at the prices and subject to the terms
set forth in this Agreement. Ingram shall not be required to purchase any
minimum amount or quantity to the Product.
2. TERM AND TERMINATION
2.1. TERM. The initial term of this Agreement is one (1) year. Thereafter
the Agreement will automatically renew for successive one (1) year terms, unless
it is earlier terminated.
2.2. TERMINATION.
(a) Either party may terminate this Agreement, with or without cause,
by giving thirty (30) days written notice to the other party.
(b) Either party may immediately terminate this Agreement with
written notice if the other party:
(i) materially breaches any term of this Agreement and such
breach continues for thirty (30) business days after written
notification thereof; or
(ii) ceases to conduct business in the normal course, becomes
insolvent, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a receiver for
its business or assets, or avails itself or becomes subject to
any proceeding under
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any Bankruptcy Act or any other federal or state statute relating
to insolvency or the protection of rights of creditors; or
(iii) attempts to assign or otherwise transfer its rights
hereunder unless both have agreed in writing to such assignment
or transfer.
3. INGRAM OBLIGATIONS
3.1. PRODUCT AVAILABILITY. Ingram will list Product in its catalog(s) as
appropriate and endeavor to make such Product available to customers.
3.2. ADVERTISING. Ingram will advertise and/or promote Product in a
commercially reasonable manner and will transmit as reasonably necessary Product
information and promotional materials to its customers.
3.3. SUPPORT. Ingram will make its facilities reasonably available for
Vendor and will assist in Product training and support. Ingram will provide
reasonable, general Product technical assistance to its customers, and will
direct all other technical directly to Vendor.
3.4. ADMINISTRATION.
(a) Upon request, Ingram will furnish Vendor with a valid tax
exemption certificate.
(b) Xxxxxx will provide Vendor within five (5) days after the end of
each calendar month, a printed and/or electronic file in a format acceptable to
Ingram and Vendor, a sales-out report and inventory report showing: current
inventory levels of each Vendor's Products (including items in transit), weekly
runrate snapshots, total sales to the channel for all of Xxxxxx'x shipping
locations. Reports shall include but are not limited to, the Vendor part
number, Ingram part number, Ingram cost, quantity sold and customer zip code.
(c) Xxxxxx may handle its customers' Product returns by batching them
for return to Vendor at regular intervals.
4. VENDOR OBLIGATIONS
4.1. SHIPPING EXPORT.
(a) Vendor shall ship Product pursuant to Ingram purchase order(s)
("P.O."). The terms and conditions of this Agreement shall apply to each order
accepted or shipped by Vendor hereunder. The provisions of Xxxxxx'x form of
purchase order or other business form shall not apply to any order
notwithstanding Vendor's acknowledgment or acceptance of such order except for
the following terms which Vendor shall accept with respect to each order
pursuant and subject to the provisions of this Agreement: (i) quantity and type
of Xxxxxx Products ordered; (ii)
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requested delivery dates and (iii) freight terms. Product shall be shipped
F.O.B. Xxxxxx'x designated warehouse with risk of loss or damage to pass to
Ingram upon delivery to the warehouse specified in Xxxxxx'x P.O.
(b) Ingram requires concurrent with the execution of this Agreement
Export Administration Regulations product classification and supporting
documentation: Certificate of Origin (General Use and/or NAFTA), Export
Commodity Control Number's; (ECCN's), General License and/or Individual
Validated License information and Schedule "B"/Harmonized Numbers. This applies
when distribution rights granted under Section 1.1 are outside the United States
for the initial Product/s and when additions or changes to these Products
occurs.
4.2. INVOICING. For each Product shipment to Ingram, Vendor shall issue to
Ingram an invoice showing Xxxxxx'x order number, the Product part number,
description, price and any discount. Upon Xxxxxx'x request, Vendor shall
provide an aging report listing all invoices outstanding.
4.3. PRODUCT AVAILABILITY. Vendor agrees to maintain sufficient Product
inventory to fill Xxxxxx'x orders. If a shortage of any Product exists, Vendor
agrees to allocate its available inventory of such Product to Ingram in
proportion to Xxxxxx'x percentage of all Vendor's customer orders for such
Product during the previous sixty (60) days.
4.4. PRODUCT MARKING. Vendor will clearly xxxx each unit of Product with
the Product name and computer compatibility. Such packaging will also bear a
machine-readable bar code identifier scannable in standard Uniform Product Code
(UPC) format. The bar code must identify the Product as specified by the
Uniform Code Council (UCC). If the Vendor or Ingram customers' require serial
number tracking the serial number must be clearly marked and bar coded on the
outside of the individual selling unit. The bar code shall fully comply with
all conditions regarding standard product labeling set forth in Exhibit B in the
then-current Ingram GUIDE TO BAR CODE: THE PRODUCT LABEL. Vendor may be
assessed a reasonable per unit charge for all Product not in conformance
herewith.
4.5. PRODUCT NOTES. Vendor will either thirty (30) days provide product
note information in accordance with Xxxxxx'x specifications noted in Exhibit C
or instruct Ingram to do so in which case a charge per SKU will apply.
4.6. SUPPORT. At no charge to Ingram, Vendor shall support Product and any
reasonable Ingram efforts to sell Product. Vendor shall also provide to Ingram,
its employees, and its customers reasonable amounts of sales literature,
advertising materials, and training and support in Product sales.
4.7. NEW PRODUCT. Vendor shall endeavor to notify Ingram at least thirty
(30) days before the date any new Product is introduced. Vendor shall make such
Product
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available for distribution by Ingram no later than the date it is first offered
for sale in the marketplace.
4.8. INSURANCE. Vendor shall carry insurance coverage for product
liability/completed operations with minimum limits of three million
($3,000,000). Within ten (10) days of full execution of this Agreement, Vendor
shall provide Ingram with a Certificate of Insurance. This Certificate of
Insurance must include: (i) a broad form endorsement naming Ingram as an
additional insured, and (ii) a mandatory thirty (30) day notice to Ingram of
insurance cancellation.
4.9. WARRANTIES/CERTIFICATION.
(a) GENERAL WARRANTY. Vendor represents and warrants that (i) it has
good transferable title to the Products, (ii) the Product or its use does not
infringe any patents, copyrights, trademarks, trade secrets,, or any other
intellectual property rights, (iii) that there are no suits or proceedings
pending or threatened which allege any infringement of such proprietary rights,
and (iv) the Product sales to Ingram do not in any way constitute violations of
any law, ordinance, rule or regulation in the distribution territory.
(b) PRODUCT WARRANTY AND LIMITATION OF LIABILITY. EXCEPT FOR THE
EXPRESS WARRANTIES IN THE END USER LICENSE AGREEMENTS ACCOMPANYING THE VENDOR'S
PRODUCTS, VENDOR DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH
REGARD TO THE VENDOR PRODUCTS LICENSED HEREUNDER, INCLUDING ALL WARRANTIES OR
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT OR
THE LIKE. In no event shall Vendor be liable for any damages arising from
performance or nonperformance of any Vendor Products or for any lost profits or
other consequential damages even if Vendor has been advised the possibility of
such damages, nor shall Vendor be liable for any claim against Ingram or its
customers by any other party except as provided otherwise in the applicable End
User License Agreement. The warranty provided in the applicable End User
License Agreement is the only warranty made with respect to the Vendor Product
sand the remedy provided therein for breach of such warranty is Xxxxxx'x and its
customers' exclusive remedy therefor.
(c) WARRANTY. Vendor hereby represents and warrants that any Product
offered for distribution does not contain any obscene, defamatory or libelous
matter or violate any right of publicity or privacy.
(d) END-USER WARRANTY. Vendor shall provide a warranty statement
with Product for end user benefit. This warranty shall commence upon Product
delivery to end-user.
(e) MADE IN AMERICA CERTIFICATION. Vendor by the execution of this
Agreement certifies that it will not label any of its products as being "Made in
America,"
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"Made in U.S.A.," or with similar wording, unless all components or elements of
such Product is in fact made in the United States of America. Vendor further
agrees to defend, indemnify and hold harmless from and against any and all
claims, demands, liabilities, penalties, damages, judgments or expenses
(including attorney's fees and court costs) arising out of or resulting in any
way from Product that does not conform to the Certification.
5. PRICING
5.1. INGRAM PRICING. The suggested retail price and any Ingram discount
for Product is set out in Exhibit D. Vendor may modify Exhibit D with a minimum
of thirty (30) days advance written notice to Ingram. All Ingram order Products
will be billed at the price in effect when the order is placed. Ingram shall
have sole discretion as to selling price of Product to its customers.
5.2. VENDOR PRICING. Vendor agrees that the prices and terms it offers to
Ingram are now and will continue to be the same as any other similar type of
customer as Ingram for the territory Ingram has distribution rights to. If
Vendor offers price discounts, promotional discounts or other special prices to
its other customers, Ingram shall also be entitled to participate in and receive
notice of the same no later than Vendor's other similar type of customer as
Ingram for the territory Ingram has distribution rights to.
5.3. INTERNATIONAL PRICING. If Vendor offers a better price outside the
U.S. and Ingram has distribution rights in that territory then the same price
shall be offered to Ingram for Product sales into that territory.
5.4. PRICE ADJUSTMENTS. If Vendor reduces any Product price, or offers
increased discounts to any other similar type of customer as Ingram for the
territory Ingram has distribution rights to, Vendor will promptly credit Ingram
for the difference between the original Product price and the reduce Product
price for Xxxxxx'x inventory, including: (i) any Customer Product in-transit
from/to Ingram, (ii) any unshipped orders, and (iii) orders in-transit to Ingram
on the price reduction or increased discount offer date. In the event that
Vendor shall raise the list price of a Product, all orders for such Product
placed prior to the effective date of the price increase shall be invoiced at
the lower price. Vendor shall provide Ingram with thirty (30) days advance
notice of any price increases.
5.5. PAYMENT TERMS. Xxxxxx'x initial order payment terms shall be net
sixty (60) days. Subsequent order payment terms shall be [***] percent
([***]%) fifteen (15) days, net thirty (30) days. Payment shall be deemed
made on the payment postmark date.
5.6. RIGHT TO WITHHOLD. Notwithstanding any other provision in this
Agreement to the contrary, Ingram shall not be deemed in default if it withholds
any specific amount
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406
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to Vendor because of a legitimate dispute between the parties as to that
specific amount pending the timely resolution of the disputed amount.
6. MARKETING
6.1. TRADEMARKS. Ingram may advertise and promote the Product and/or
Vendor, and may thereby use Vendor's trademarks, service marks and trade names.
Neither party shall acquire any rights in the trademarks, service marks or trade
names of the other.
6.2. MARKETING DEVELOPMENT FUNDS. Vendor agrees to provide allowances
for the reimbursement of Xxxxxx'x expenditures for advertising and market
development of Vendor's Products. Such allowances will accrue in an amount
equal to [***] percent ([***]%) of the total amount invoiced by Vendor to
Ingram (net of Product returns and similar deductions) for shipments of
Products but only if Ingram has provided to Vendor on a timely basis the
proof of performance. Vendor and Ingram will agree to the market development
expenditures in advance. Vendor may provide additional project based funds
for marketing development at Vendor's sole discretion. Vendor reserves the
right in its sole discretion to increase, decrease or terminate such
allowance for any reason upon forty-five (45) days advance written notice to
Ingram. Such allowance may only be used to reimburse Ingram for advertising
and market development which occurs in the six (6) month period following the
calendar month in which such allowance was accrued. To be eligible for such
allowance Ingram must provide Vendor with evidence of Xxxxxx'x expenditure on
which such claim for reimbursement is based on and such other information as
Vendor may reasonably request. Such reimbursement will take the form of a
credit on Xxxxxx'x account for future orders from Ingram under this Agreement
or as mutually agreed to, a deduction from Vendor's invoice to Ingram for
past orders from Vendor.
6.3. QUARTERLY MINIMUMS, VOLUME CREDITS. Vendor agrees to provide Ingram
with Volume Incentive Rebate program which will be paid on net sales. Ingram
will receive a guaranteed [***] percent ([***]%) rebate and will be eligible to
receive additional rebates up to [***] percent ([***]%) based on the following
functional objectives: (1) Reseller breadth, (2) net sales (excluding site
management licenses) and (3) an additional function objective to be determined
quarterly. Prior to the beginning of each calendar quarter during the term of
this Agreement, Vendor will notify Ingram of all goals. Vendor will provide
Ingram a credit within thirty (30) days after the end of the quarter based on
the invoice amount or the quantity of Products that Ingram sold to Resellers
during such quarter if Ingram meets the goals established by Vendor in such
notice. Not withstanding any other provision of this Agreement, Ingram will not
be entitled to any credits for any quarter under this section if: (1) Vendor
has not given Ingram notice of Minimum Amount and Breadth goals and credits for
such quarter, (2) Ingram does not provide Vendor on a timely basis with all the
reports required by section 3.4b (the monthly sales and inventory reports) for
each month of such quarter. All credits under this section will apply to
outstanding invoices from Vendor under this
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406
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Agreement. If there are no outstanding invoices Vendor shall issue a check. In
the event that this Agreement is terminate, Vendor will, within thirty (30) days
after termination, pay Ingram all unused or unpaid credits which has accrued to
Xxxxxx'x account, less any amounts owed by Ingram to vendor. Upon request,
Ingram will provide documentation regarding Xxxxxx'x attainment of Breadth and
Minimum Amount goals.
6.4. SUPPORT PRODUCT. Vendor shall consign a reasonable amount of
demonstration Product to aid Ingram in its support and promotion of Product.
All such consigned Product will be returned to Vendor upon request.
7. RETURNS
7.1. STOCK BALANCING. For the purpose of inventory balancing, Ingram may
return Products once per calendar quarter provided Products are in their
original packaging for full credit of the Products' purchase price, plus all
freight charges for returned Product. The aggregate dollar amount of all
individual Ingram returns shall not exceed twenty-five percent (25%) of the
value of Xxxxxx'x net purchase of Products from Vendor during the three (3)
months immediately preceding such returns. Vendor agrees to consider in good
faith any Ingram requests on a cases by case basis for returns in excess of said
twenty-five percent (25%) amount.
7.2. POST-TERM/TERMINATION For one hundred eighty (180) days after the
expiration or earlier termination of this Agreement, Ingram may return to Vendor
any Product for credit against outstanding invoices, or if there are no
outstanding invoices for a cash refund. Any credit or refund due Ingram for
returned Product shall be equal to the Product purchase price plus all freight
charges incurred by Ingram in returning the Product.
7.3. PRODUCT DISCONTINUATION Vendor shall give Ingram thirty (30) days
advance written notice of Product discontinuation. Ingram may return all such
Product to Vendor within one hundred eighty (180) days following discontinuation
for full credit of Product purchase price plus all freight charges incurred by
Ingram in returning the Product.
7.4. DEFECTIVE PRODUCT
(a) Ingram may return any Product to Vendor that Ingram or its
customer finds defective during the warranty period. Vendor shall immediately
credit Ingram for the Product purchase price, plus all freight charges incurred
by Ingram in returning the defective Product.
(b) If any Product is recalled by Vendor because of defects,
revisions or upgrades, Ingram will, at Vendor's request, provide reasonable
assistance with the recall. Vendor will pay Xxxxxx'x expenses in connection
with such recall.
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8. INDEMNIFICATION
8.1. PRODUCT INDEMNITY Vendor shall defend, indemnify, and hold harmless
Ingram from and against any claims, demands, liabilities, or expenses (including
attorney's fees and costs), any personal or bodily injury or property damage,
arising out of or resulting in any way from any defect in Products. This duty
to indemnify Ingram shall be in addition to the warranty obligations of Vendor.
8.2. GENERAL INDEMNITY Each party shall indemnify, defend and hold the
other harmless from and against any and all claims, actions, damages, demands,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, resulting from any act or omission of the acting party or its
employees under this Agreement, that causes or results in property damage,
personal injury or death.
8.3. INTELLECTUAL PROPERTY RIGHTS INDEMNITY Vendor shall defend, indemnify
and hold Ingram, harmless from and against all damages and costs incurred by any
of them arising from the infringement of any U.S. patent, copyright, trademark,
trade secret or other proprietary right by reason of the manufacture, sale,
marketing, or use of Product.
8.4. PRODUCT INFRINGEMENT. Upon threat of claim of infringement, Vendor
may, at its expense and option (i) procure the right to continue using any part
of Product, (ii) replace the infringing Product with a non-infringing Product of
similar performance, or (iii) modify Product to make it non-infringing. If
Vendor does not so act within ninety (90) days after such claim, Ingram may
return Product to Vendor for a full credit against future purchases or for a
cash refund, at Xxxxxx'x option.
8.5. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR LOST PROFITS OF BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES,
WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE), AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION IS IN NO WAY MEANT TO LIMIT VENDOR'S LIABILITY FOR PERSONAL
INJURY OR DEATH AS A RESULT OF A DEFECT IN ANY PRODUCT IN THOSE JURISDICTIONS
WHERE THE LAW DOES NOT ALLOW THIS LIMITATION.
9. COMPLIANCE WITH FEDERAL LAWS AND REGULATIONS
9.1. EXECUTIVE ORDER 11246. Vendor agrees to include the Equal Employment
Opportunity Clause by reference in every contract, agreement and purchase order
entered into with subcontractors or suppliers as required by 41 CFR 60-1.4.
9.2. EMPLOYER INFORMATION REPORT EEO-1/ WRITTEN AFFIRMATIVE ACTION PROGRAM.
Vendor agrees that if the value of any contract or purchase order is fifty
thousand dollars ($50,000) or more and the Vendor has fifty (50) or more
employees, Vendor will
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(i) file an EEO-1 report (Standard Form 100) and comply with and file such other
compliance reports as may be required under Executive Order 11246, as amended,
and Rules and Regulations adopted thereunder and (ii) will develop a written
affirmative action compliance program for each of its establishments as required
by Title 41 CFR 60-1.40.
9.3. VETERANS EMPLOYMENT CLAUSE. Vendor agrees to abide by and comply with
the provisions of the Affirmative Action Clause, 41 CFR 60-250.4.
9.4. EMPLOYMENT OF HANDICAPPED PERSONS. Vendor agrees that it will abide
by and comply with the provisions of the Affirmative Action Clause, CFR
60-741.4.
9.5. SMALL BUSINESS CONCERNS AND SMALL BUSINESS CONCERNS OWNED AND
CONTROLLED BY SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS. Where a
government contract is expected to exceed five hundred thousand dollars
($500,000), Vendor agrees to comply with all requirements of P.L. 95-507 and
regulations promulgated thereunder. Vendor shall comply with instructions
contained in Exhibit F.
9.6. WOMEN-OWNED BUSINESS CONCERNS. Vendor shall comply with instructions
contained in Exhibit F. Where a government contract is expected to exceed five
hundred thousand dollars ($500,000), Vendor agrees to comply with all
requirements of Executive Order 12138 and all regulations promulgated
thereunder.
10. GOVERNMENT PROGRAM
10.1. PARTNERSHIP AMERICA. Vendor may, at its sole option, participate
in Xxxxxx'x government reseller program in which case the provisions of Exhibit
G, Partnership America, shall apply. A draft copy is provided solely for your
information and review.
11. GENERAL PROVISIONS
11.1. NOTICES. Any notice which either party may desire to give the
other party must be in writing and may be given by (i) personal delivery to an
officer of the party, (ii) by mailing the same by registered or certified mail,
return receipt requested, to the party to whom the party is directed at the
address of such party as set forth at the beginning of this Agreement, or such
other address as the parties may hereinafter designate, and (iii) by facsimile
or telex communication subsequently to be confirmed in writing pursuant to item
(ii) herein.
11.2. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, except that body of law
concerning conflicts of law. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
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11.3. COOPERATION. Each party agrees to execute and deliver such
further documents and to cooperate as may be necessary to implement and give
effect to the provisions contained herein.
11.4. FORCE MAJEURE. Neither party shall be liable to the other for
any delay or failure to perform which results from causes outside its reasonable
control.
11.5. ATTORNEYS FEES. In the event there is any dispute concerning the
terms of this Agreement or the performance of any party hereto pursuant to the
terms of this Agreement, and any party hereto retains counsel for the purpose of
enforcing any of the provisions of this Agreement or asserting the terms of this
Agreement in defense of any suit filed against said party, each party shall be
solely responsible for its own costs and attorney's fees incurred in connection
with the dispute irrespective of whether or not a lawsuit is actually commenced
or prosecuted to conclusion.
11.6. EXPORT REGULATIONS. Ingram agrees by the purchase or Products to
conform to, and abide by, the export laws and regulations of the United States,
including but not limited to, the Export Administration Act of 1979 as amended
and its implementing regulations. Ingram shall include a statement in it's
standard sales terms and conditions that any shipment of Product outside the
United States will require a valid export license. Ingram further agrees to
distribute Product in accordance with the territory as defined in Section 1.1.
Whenever a EU country is specified as Territory under Section 1.1, Territory
shall include all EU countries.
12. AGREEMENT
12.1. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.2. SECTION HEADINGS. Section headings in this Agreement are for
convenience only, and shall not be used in construing the Agreement.
12.3. INCORPORATION OF ALL EXHIBITS. Each and every exhibit referred
to hereinabove herein by reference as if set forth herein in full.
12.4. SEVERABILITY. A judicial determination that any provision of
this Agreement is invalid in whole or in part shall not affect the
enforceability of those provisions found to be valid.
12.5. NO IMPLIED WAIVERS. If either party fails to require performance
of any duty hereunder by the other party, such failure shall not affect its
right to require performance of that or any other duty thereafter. The waiver
by either party of a breach of any provision of this Agreement shall not be a
waiver of the provision itself or a waiver of any breach thereafter, or a waiver
of any other provision herein.
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12.6. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and their respective
representatives, successors and permitted assigns. This Agreement shall not be
assignable by Vendor, without the express written consent of Ingram, which
consent shall not be unreasonably withheld, including to a Person in which it
has merged or which has otherwise succeeded to all or substantially all of such
party's business and assets to which this Agreement pertains and which has
assumed in writing or by operation of law its obligations under this Agreement.
Any attempted assignment in violation of this provision will be void.
12.7. SURVIVAL. Sections 5.5 (Payment Terms), 5.6 (Right to Withhold),
7.2 (Post-Term Termination) and 8, (Indemnification) shall survive the
expiration or earlier termination of this Agreement.
12.8. ENTIRETY. This Agreement constitute the entire agreement between
the parties regarding its subject matter. This Agreement supersedes any and all
previous proposals, representations or statements, oral or written. Any
previous agreements between the parties pertaining to the subject matter of this
Agreement are expressly terminated. The terms and conditions of each party's
purchase orders, invoices, acknowledgments/confirmations or similar documents
shall not apply to any order under this Agreement, and any such terms and
conditions on any such document are objected to without need of further notice
or objection. Any modifications to this Agreement must be in writing and singed
by authorized representatives of both parties.
12.9. AUTHORIZED REPRESENTATIVE. Either party's authorized
representative for execution of this Agreement or any amendment hereto shall be
president, a partner, or a duly authorized vice-president of their respective
party. The parties executing this Agreement warrant that they have the
requisite authority to do so.
IN WITNESS WHEREOF, the parties hereunto have executed this Agreement.
"Ingram" "Vendor"
Xxxxxx Micro Inc. NetObjects, Inc.
0000 X. Xx. Xxxxxx Xxxxx 0000 Xxxxxxxx Xxxx
Xxxxx Xxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxx, Xxxxxxxxxx 00000
By: /s/ X X Xxxxxx By: /s/ Xxxx Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxx Xxxxxx
------------------------------- ----------------------------------
Title: Sr. Vice President Purchasing Title: V.P. Sales & Corp. Marketing
------------------------------ ---------------------------------
Date: 5-30-97 Date: 5/22/97
------------------------------- ----------------------------------
*AGREEMENT MUST BE SIGNED BY PRESIDENT OR BY A DULY AUTHORIZED VICE PRESIDENT OR
PARTNER.
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EXHIBITS:
A - Vendor Routing Guide
B - Guide to Bar Code: The Product Label
C - Product Notes
D - Product Price List
E - "IMAGINE" Program
F - Small And Disadvantaged Business Certification
G - Partnership America
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