PC CONNECTION VENDOR AGREEMENT
This Agreement made January 5, 2001 by and between Merrimack Services
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Corporation d/b/a PC Connection Services, a Delaware corporation with offices at
000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Reseller") and its affiliates, and
LinuxWizardry Systems, Inc., a Canadian corporation with offices at 000-00000
Xxxxxxxxxxx Xxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 Xxxxxx, ("Vendor"). In
consideration of the mutual covenants herein contained, the Parties agree as
follows:
1. AUTHORIZED RESELLER.
(a) Vendor hereby appoints Reseller as a nonexclusive Authorized
Reseller for its Products. Reseller may promote and sell Vendor's Products (or
pass through software licenses, if applicable) through its affiliates at retail,
including mail order, and electronic order, without geographic restrictions. The
parties remain independent contractors; no agency, joint venture or other
relationship is hereby created.
(b) Vendor retains all proprietary and intellectual property rights
(patents, copyrights, trade secrets, and trademarks) in the Products, except for
the medium on which it is stored, and Vendor licenses Reseller to use its
trademarks for advertising and marketing purposes in connection with the
Products.
2. PURCHASE OF PRODUCTS/PRICE.
(a) Reseller shall pay an amount equal to 20% off the retail (list)
price, which Vendor stipulates is the lowest price (whether calculated by
discount, rebates, free products or otherwise) available to any customer and
Vendor shall provide Reseller with the lowest price available throughout the
term of this Agreement, consistent with law. Reseller and its affiliates shall
at all times have the exclusive right to determine and set the price at which it
will sell Products to its customers.
(b) Reseller agrees to purchase a minimum of 10 units of Products as
consideration for this Agreement; thereafter Reseller may purchase Products to
the extent it deems appropriate and may maintain its inventory of Products at
levels it deems appropriate.
(c) Reseller may order Products via mail, telephone, or facsimile,
provided that if orders are placed via telephone, written confirmation shall
follow as soon as practical. Orders are deemed accepted by Vendor upon receipt,
subject to Vendor's credit criteria.
(d) Terms of payment are net 30 days upon receipt of invoice,
provided Product is delivered, or better if better terms are available. Reseller
may deduct from invoices any credits past due Reseller and any catalogs or web
advertising charges incurred by Vendor.
(e) Products purchased under this Agreement are for resale and,
therefore, not subject to sales taxes. Reseller shall not be liable for handling
or customs charges.
(f) Vendor may increase or decrease the retail/list price of Products
at any time, but agrees to provide Reseller with written notice at least sixty
(60) days prior to the effective date.
(g) Vendor shall give Reseller price protection on all inventory and
orders placed. In the event Vendor reduces the retail price of Products, it
shall upon the effective date of such price change issue credit to Reseller for
the difference between the old and new price for all Reseller's inventory of
such Product, all Product ordered but not delivered, and Products sold to end
user customers within 10 days of the effective date.
3. SHIPPING TERMS. Shipping terms: F.O.B. Destination. Vendor shall use best
efforts to meet delivery schedules. Products shall be shipped in appropriate
packages to Reseller's Distribution Center: PC Connection Services, 0000 Xxx
Xxxxx Xxxxx 00, Xxxxxxxxxx, XX 00000. Reseller shall inform Vendor of any
discrepancies in the shipments as soon as may be practical.
4. Warranty.
(a) Vendor warrants Products to be free from defects in materials and
workmanship, and to operate in conformity to Vendor's specifications, as set
forth in its written end-user warranty.
(b) Vendor warrants that it has full title and rights to the Products,
and that it has proper authority to sell or license the Products to Reseller.
(c) Vendor warrants that all Products are Year 2000 compliant, meaning
Products are designed to recognize and do in fact recognize and accurately
process all dates properly, including all dates after December 31, 1999, and
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display dates by the correct century.
(d) VENDOR DISCLAIMS ALL OTHER WARRANTIES, INCLUDING MERCHANTABILITY
AND USE FOR A PARTICULAR PURPOSE.
5. PRODUCT INFORMATION.
(a) Vendor shall provide Reseller with copies of its end-user
warranties for the Products.
(b) Vendor represents and warrants that all regulated Products have
applicable government clearances and licenses, including FCC Class B licenses
for computer products.
6. LIMITATION OF LIABILITY. IN NO EVENT SHALL VENDOR OR RESELLER BE LIABLE
FOR SPECIAL AND INDIRECT CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS
OF PROFIT. THIS LIMITATION OF LIABILITY SHALL NOT AFFECT VENDOR'S OBLIGATION TO
INDEMNIFY RESELLER UNDER SECTIONS 7 AND 8 OF THIS AGREEMENT.
7. PROPRIETARY RIGHTS INDEMNIFICATION.
(a) Vendor shall defend at its expense and hold Reseller and its
affiliates harmless from any actions, claims, damages and judgments brought
against Reseller to the extent based on claims that a Product sold or
distributed by Reseller infringes another's copyright, patent, trademark or
trade secret enforceable in the United States. Reseller shall notify Vendor
promptly in writing of any such claim and give Vendor complete authority and
information required for the defense and settlement of such claims. In such
case, Vendor shall pay all costs, damages and settlements, including attorneys'
fees, awarded against Reseller as a result of such claims.
(b) Upon notice of an alleged infringement or if in Vendor's opinion
such a claim is likely, Vendor shall have the right, at its option, to (i)
obtain the right to continue the distribution of the Product, (ii) substitute
other Products with similar features or capabilities or (iii) modify the Product
so that it is no longer infringing. Should Products become subject to such
claims and Vendor does not elect any of the options stated above, Vendor agrees
to repurchase Reseller's inventory of Products at cost and agrees to repurchase
Products returned to Reseller by its customers for any reason for a period of
ninety (90) days following the initial repurchase. This indemnity shall survive
the termination of the Agreement for any claims or threat of claims arising from
sales of Product prior to such termination.
8. PRODUCT INDEMNIFICATION. Vendor shall defend at its expense and hold
Reseller and its affiliates harmless from any actions, claims, damages and
judgments to the extent that they are based on claims that a Product sold or
distributed by Reseller breached a warranty or resulted in harm to persons or
property. Reseller shall notify Vendor promptly in writing of any such claim and
give Vendor complete authority and information required for the defense and
settlement of such claims. In such case, Vendor shall pay all costs, damages and
settlements, including attorneys' fees, awarded against Reseller as a result of
such claims.
9. VENDOR'S SALES SUPPORT.
(a) Vendor shall give Reseller and its affiliates the opportunity and
means to participate in all promotions and special purchasing opportunities made
available to other resellers or direct to end users.
(b) Vendor shall provide Reseller with 3 free sample(s) of Products
carried by Reseller, for training and technical reference.
(c) Vendor shall replace outdated versions of software Products with
new versions upon release without restocking or handling fees, on a dollar for
dollar basis.
(d) Reseller may rotate its inventory of Products on a monthly basis
within one year of purchase without restocking or handling fees, on a dollar for
dollar basis.
(e) Vendor shall replace defective Products under warranty with new
units at no cost or, at the option of Reseller, shall issue credit within
fifteen days of return.
(f) Vendor elects to participate in the ___ 30 ___ 60 day Money Back
Guarantee program.
10. RESELLER'S SALES SUPPORT.
(a) Reseller has established a co-op advertising program in which
Vendor may participate upon request, subject to the program's terms and
conditions.
(b) Reseller, with Vendor's assistance, will provide Product training
to its employees.
(c) Reseller will handle end-user customer problems directly, with
Vendor's support.
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(d) Reseller will offer end-user customers toll-free telephone access
for Product information, ordering and technical support.
(e) Reseller will distribute Products with all packaging, documents,
and labels intact.
(f) Reseller will provide Vendor with monthly sales reports.
11. NONDISCLOSURE. Reseller and Vendor each agree to keep confidential, and
not disclose to third parties, confidential information obtained from the other
party, including product specifications, release dates, and sales and inventory
figures.
12. GENERAL TERMS.
(a) This Agreement, together with all schedules and attachments
referenced herein, represents the complete and sole understanding between the
parties; any changes or modifications must be by written addendum; any
inconsistent or contrary terms contained in purchase orders or invoices issued
hereunder shall have no effect.
(b) This Agreement shall be governed and construed under the laws of
New Hampshire.
(c) The parties shall not be liable for delays caused by Acts of God,
including floods, earthquakes, hurricanes, tornadoes, and other severe storms,
war, riot, third party strikes or other such conditions beyond their reasonable
control.
(d) If any provision of this Agreement is deemed illegal or
unenforceable, such provision shall be modified to the minimum extent necessary
to make it or its application legal or enforceable; if the provision cannot be
modified, then it shall be deleted and the remainder of the Agreement will
continue in full force and effect.
(e) The paragraph headings are for information only and do not
constitute terms of this Agreement. This Agreement shall be binding on the
parties and their respective successors and assigns, and may be signed in
counterparts.
13. TERM, RENEWAL AND EXPIRATION. The term of this Agreement shall commence
upon the effective date, shall continue for a period of one (1) year, and shall
renew automatically unless written notice of non-renewal is given by either
party to the other at least thirty (30) days prior to the anniversary date.
Agreed:
Merrimack Services Corporation LinuxWizardry Systems. Inc.
by: ____________________________ by: ____________________________
________________________________ ________________________________
name/title name/title
080100rev14
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