RESALE AND CONFIGURATION SERVICES AGREEMENT
This Agreement ("Agreement") is by and between Video Stream International Inc.
("VSI") doing business as TeraGlobal Communications Corp., with its principal
place of business at 0000-000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X0X 0X0, and Xxxxxx Micro Inc. ("Ingram") excluding its subsidiaries,
with its principal place of business at 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0. This Agreement will include shipments to VSI's or its End
Customer locations globally, except where prohibited by law or authorization for
export is required.
WHEREAS, Ingram is in the business of reselling various computer products and of
configuring goods and products for shipment to VSI's specification and desires
to sell such configuration services to VSI.
WHEREAS, VSI desires to acquire certain configuration services and
goods/products for configuration systems and shipment to its customers, as
defined below.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein,
the parties hereto agree as follows:
1. PURPOSE
The purpose of this Agreement is to provide the terms and conditions for
the purchase and resale by VSI and the sale by Ingram to VSI of various
computer products and services including hardware and software
("Product"), and configuration, goods warehousing and international
fulfillment services ("Services").
2. DEFINITIONS
For purposes of this Agreement, the following terms will have the
respective meanings indicated below:
A. The term "Goods" or "the Goods" will mean, individually and/or
collectively, any and all computer products or other such products or
components supplied by VSI or a third party arranged by VSI, which are
owned by VSI, and are to be stored or warehoused by Ingram for VSI for
the purpose of performing configurations services as defined
SECTION C.1. The term "Goods" or "the Goods" will not include
Products offered for sale by Xxxxxx.
B. The term "Product" or "Products" will mean, individually and/or
collectively, the computer Products offered for sale by Ingram in its
Comprehensive Catalog ("Catalog"), as may be amended from time to
time.
C. The term "Goods/Products" will mean either Goods and/or Products as
defined in SECTIONS 2.A and 2.B of this Agreement.
D. The term "Goods Warehousing" will mean receiving, storing, and
handling the Goods.
E. The term "Configuration Services" will mean the service of receiving
and processing Configuration orders from VSI, integrating
Goods/Product as specified by VSI into a computer system, or other
similar casing, and functionally testing the integrated computer
system to insure that the integration of components has been performed
correctly.
F. The term "Configuration" or "Configurations" will mean, individually
and/or collectively, the computer system, systems or other goods
resulting from Configuration Services provided by Ingram.
G. The term "VSI Purchase Order" will mean the purchase order submitted
by VSI to Ingram from time to time to perform Configuration Services
and to purchase Product from Ingram.
H. The term "Ingram Purchase Order" will mean the purchase order created
by Ingram and submitted to VSI for the purposes of Ingram receiving
shipment of Goods from VSI or a third party designated by VSI.
SECTION A: PRODUCT RESALE TERMS & CONDITIONS
1. DISTRIBUTION SOURCE
Upon execution of this Agreement, Ingram shall be a source for VSI's
distribution channel product and services needs. As a source, Ingram will
be a contact of choice and, subject to Product availability, a source for
VSI's purchasing needs through the distribution channel.
2. TERMS OF SALE
A. All Products delivered to VSI or its customers under the terms of this
Agreement will be deemed sold to VSI and will be subject to Xxxxxx'x
then-current standard Sales Terms and Conditions published in its
Comprehensive Catalog ("Catalog") at the time of purchase. Should
Xxxxxx'x Catalog provisions conflict with this Agreement, the
provisions of this Agreement will prevail.
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B. If authorization for resale is required by the publisher or
manufacturer of any Product, then Ingram will not be obligated to sell
such Product to VSI unless Ingram has received such required
authorization.
3. ORDERING
A. VSI will compile, update and provide Ingram with Goods/Product order
information. The order information will include the:
(i) Goods/Product type(s), (ii) unit quantity, (iii) Ingram SKU number
and/or Manufacturer Part Number, (iv) VSI's price or its price to its
Customer, (v) correct shipping information including name and address,
contact name, postal/zip code, (vi) specific instruction for
Configuration, and (vii) consignment inventory of Goods as required.
VSI personnel will identify, for each Product order, the ship-to
destination as either VSI, VSI's customer, or to some other specified
third party (i.e., freight forwarder). It is VSI's responsibility to
review each order and confirm the order status prior to shipment.
Ingram will, subject to Product availability and export compliance
review, use its best efforts to fill and ship all Product orders
placed by VSI within two (2) business days of order receipt according
to their terms in SECTION C.1.X. Xxxxxx will make information
available to VSI within twenty four (24) hours of the receipt of VSI's
product order if the Product requested cannot be shipped to the
desired country.
X. Xxxxxx will receive orders via telephone, facsimile, and/or Ingram
approved electronic ordering methods as defined in Xxxxxx'x Catalog
only from those who have been identified by VSI Administration as
authorized personnel and provide the Ingram customer number prior to
placing the order. VSI will disclose its Ingram customer number only
to its personnel with a need to know. Orders will be acknowledged by
Ingram but will not be deemed accepted until the Product is actually
shipped.
4. PRICING
Ingram will provide volume purchase pricing based on VSI's global net
purchases. Global net purchases are defined as total worldwide invoiced
purchases, less returns and other credit transactions that may occur.
Pricing will be not greater than the pricing offered to other similarly
situated global customers with similar purchase volumes.
5. RETURNS AND REFUSALS
A. VSI will be entitled to the same customer support, and defective
Product return privileges as is extended to Xxxxxx'x customers in
Xxxxxx'x Catalog. VSI must obtain a Return Material Authorization
("RMA") number from Ingram prior to the return of any Product. Ingram
will pay all freight charges associated with the
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return of Product that is returned due to error by Ingram or if
Product is returned because the Product is defective.
B. If Product is being returned as defective Product or due to some error
by Ingram, and is returned directly to Ingram by VSI without Xxxxxx'x
prior approval, Ingram will charge a $100 handling fee per shipment
for shipments with a value greater than $1000 and 10% of the invoice
amount for shipments less than $1000, in addition to any shipping
costs incurred. Said fee and costs incurred will be due as per
regular VSI/Ingram payment arrangements. All clearance of Product
through U.S. Customs and all duties, fees, fines or other costs must
be paid by VSI prior to Xxxxxx'x acceptance of any Product returns,
unless the product is defective or returned due to some error by
Ingram.
C. Refused shipments are to be returned to VSI by its Customers. Refused
shipments will not be accepted by Ingram unless Ingram agrees to
accept such refused shipments. If Ingram agrees to accept a refused
shipment form VSI, then VSI must obtain an RMA number from Ingram
prior to returning the refused shipment.
D. VSI will be the "Importer of Record" for all refused shipments and
Product returns from its Customers. It is understood between Ingram
and VSI that this does not constitute VSI's acceptance of shipping and
other costs incurred for shipping or product configuration errors by
Ingram.
SECTION B: LIMITED AGENCY
VSI hereby appoints and Ingram accepts such appointment as a VSI limited
agent for the purpose of arranging for the export of Configurations
delivered by Ingram to VSI or to VSI customers. VSI grants Ingram a Power
of Attorney to create and execute all the documentation needed to export
Configurations purchased by VSI for resale and export to VSI and/or its
Customers. VSI agrees to execute the agreement, Exhibit C herein, in a
form satisfactory to Ingram, evidencing Xxxxxx'x Limited Power of Attorney
as reflected in Exhibit C, attached.
1. XXXXXX'X RESPONSIBILITIES ON BEHALF OF VSI
A. Recommend a carrier to meet VSI's shipment destination and delivery
time.
B. Upon VSI's acceptance of the carrier, arrange for the carriage of
Configurations to the address specified in the Purchase Order.
C. Determine the Export Classification Control Number ("ECCN") for each
Configuration in accordance with Department of Commerce regulations.
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D. Review all applicable regulations and manufacturers' warrantee issues
and laws covering the export or re-export of Configurations and
confirm appropriate allowed activities.
E. Review identity of consignee against the Table of Denials, listing of
Specially Blocked Nationals, and Denied Parties Listing and screen
shipments as required by Title 15 Code of Federal Regulations.
F. Assign the appropriate Harmonized Tariff Schedule number to each
Configuration and Product for purposes of export and import
compliance.
G. Prepare all the required documentation, including the commercial
invoices or other certificates of origin for export of Configurations
and Products.
H. Arrange for any required inspections and provide required shipping
documents for transportation and export.
I. Prepare Shipper's Export Declaration ("SED") documents and report to
the Bureau of the Census all exports that require such reporting.
J. Accept returned Configuration and Product shipments in accordance with
the terms and conditions identified in Sections A.5 and C.4.
K. Carry out all configuration and related activities such that they
conform to all ISO 9003 and ISO 9002 guidelines, requirements and
recommendations.
L. Ensure that all Configurations are tested without errors to VSI's
specifications and to ensure that shipping is carried out accurately
and correctly.
M. Negotiate pricing with transportation carriers recommended by Xxxxxx.
2. VSI'S RESPONSIBILITIES
A. Enter orders with complete information and details of the shipment
required.
B. Provide its Employer Identification Number ("EIN") to Ingram prior to
commencement of the program.
C. Ensure Configuration shipments are in compliance with all U.S. and/or
Canadian export laws and regulations and that VSI is identified on all
documents as the "Exporter of Record".
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D. Instruct VSI's Customer on the shipment guidelines, appropriate
procedures, and Configuration restrictions.
E. Not to knowingly accept orders for Configurations that may not be
exported from Canada or the United States.
F. Establish VSI's delivery terms and communication of such to Ingram in
a timely manner.
G. Bear all costs and risk of loss for Configurations exported, and
importation on returns including, but not limited to, freight, freight
forwarder fees, in-transit insurance, document preparation fees,
duties, taxes, government fees, and Value Added Taxes unless such
configurations are returned as defective Product or due to some error
by Ingram.
H. Comply with all laws, regulations and rules relevant to the VSI
Product, as shipped, of the country to which the Configuration is
shipped from.
I. Review all Customer orders in accordance with Title 15 Code of Federal
Regulations for Table of Denials, Denied Parties Listings, and
Specially Blocked Nationals and deny acceptance of orders placed by
parties identified in those lists.
J. Follow and comply with Federal Trade Commission ("FTC") rules and
regulations which may be relevant to VSI.
3. FEES
A. Any other costs including, but not limited to, costs due to refused
orders, that Ingram incurs on behalf of VSI provided such costs are
not incurred as a result of error by Ingram or defective product, will
be invoiced to VSI at the actual costs. All payments will be due and
payable according to regular VSI/Ingram payment arrangements.
SECTION C: CONFIGURATION AND GOODS WAREHOUSING SERVICES
1. CONFIGURATION SERVICES
A. Subject to the availability of Goods/Product in Xxxxxx'x local
Configuration Center and technical review, Ingram will use its best
efforts to ship Configurations and Products within two (2) business
days from receipt of order from VSI. Such shipping will occur only if
the orders are clear and distinct and do not contain conflicting or
erroneous information or product incompatibility. In
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addition, all necessary build instructions and other pertinent work
instructions must be on hand and understood by the Ingram
Configuration Center.
B. Large and unusually complex orders will require review and scheduling
based on Xxxxxx'x capacity and the complexity of the Configuration.
X. Xxxxxx will not be responsible for schedule slippage or related
expenses, including but not limited to, overtime labor and freight
associated with expediting the production or delivery of
Configurations containing Goods/Product supplied by VSI or supplied by
a third party arranged by VSI, if schedule delivery of Configurations
are delayed due to unavailability, late delivery or inoperative
Goods/Product provided by VSI or a third party arranged by VSI.
Ingram will notify VSI of potential schedule slippage or additional
expenses and VSI can authorize Ingram, in writing, for all such
mutually agreed upon charges prior to the charges being incurred.
D. In Ingram is unable to fulfill Configuration orders placed by VSI
because of acts of God, war, public enemies, seizure under legal
process, strikes, lockouts, riots and civil commotions, or because of
any reason beyond Xxxxxx'x influence or control, or because of any
other excuse provided by law, Ingram will not be liable for damages
resulting from failure to carry out such instructions. If such
inability continues for more than ten (10) days, VSI may terminate
this Agreement immediately upon written notice to Ingram and may
remove all or part of the Goods from Xxxxxx'x warehouse.
E. All fees fro Configuration Services are set forth in Exhibit A, herein
and are subject to change without notice.
2. SHIPPING
A. The Configurations and Products may be shipped directly to the
purchasing customer, or to a designated third party location. All
shipments will be F.O.B. origin with cost of freight paid according to
the standard terms and conditions listed in Xxxxxx'x Catalog with the
benefit to VSI of Xxxxxx'x preferred pricing from freight carriers.
B. VSI will examine all shipments that are shipped from Ingram directly
to VSI promptly upon receipt. No later than third (30) days after
receipt, VSI will notify Ingram of all claimed shortages or damaged
Configurations, or if rejection is intended, will specify all grounds
therefore. Failure to give such notice will be deemed a final
acceptance of the Products as of the date of shipment.
3. INVOICING AND BILLING
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X. Xxxxxx will invoice VSI upon shipment of the Configurations to the
location specified on the VSI Purchase Order, with all invoices due
and payable according to VSI's current credit terms at the date of
invoice. Payment is to be remitted in Canadian dollars.
B. If VSI has a bonafide dispute with any invoice from Ingram, VSI agrees
to pay the undisputed portion of the invoice according to VSI's
current credit terms and will immediately notify Ingram of the
dispute. The parties will then have thirty (30) days in which to
resolve the dispute before such unpaid amounts will be considered
overdue or delinquent under this Agreement.
C. An interest charge of the lesser of one percent (1%) per month or the
maximum amount allowed by law will be charged on all thirty (30) day
or greater past due balances.
4. CONFIGURATION RETURNS
A. Prior to returning defective Configurations to Ingram, VSI will
contact a designated Ingram Customer Service Representative who will
provide the RMA number which must accompany all Goods/Product returned
to Ingram. RMA numbers will be written on the shipping label. Ingram
reserves the right to refuse any shipment of Configurations if VSI has
not provided the designated RMA number on the external shipping label.
B. All defective Configurations returned to Ingram by VSI will be
reviewed by Ingram prior to any credit or refund for such returns
being issued in accordance with SECTION C.4.A to VSI. Ingram will not
issue credit for Configurations that have been modified including, but
not limited to, the exchange of Goods/Product within the Configuration
with other Goods/Product not shipped in the original Configuration.
Ingram will provide notification to VSI of modification of
Configurations within one (1) business day of receipt of such
Configurations.
C. Configurations returned to Xxxxxx'x configuration centre for repair or
correction will be repaired, corrected and shipped at Xxxxxx'x expense
within two (2) business days of receipt of such Configurations at
Ingram. Ingram will only pay the freight for Configurations returned
if Ingram and VSI mutually agree that the defect was due to Ingram
error.
X. Xxxxxx will not accept Stock Balance returns on VSI configured
systems.
X. Xxxxxx will notify VSI within two (2) business days of the return to
Ingram of Configurations that have been refused in shipment or result
from the cancellation
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of an order. VSI will within five (5) business days of such
notification attempt to restore the order and reship the Configuration
or reship the Configuration or Product to a new location.
Configurations that are not reshipped will be depopulated. If such
return was not due to fault by Ingram, Credit will be issued to VSI
for the amount of the original invoices less Configuration fees,
Depopulation fees (in accordance with EXHIBIT A), and the value of any
Goods/Product that cannot be used as new in a future VSI
Configuration. If such return was due to a fault by Ingram, then
Ingram shall be responsible for all such charges and cots.
5. CONFIGURATION SERVICES WARRANTY
X. Xxxxxx will functionally test Configurations and Products to insure
that the integration of components has been performed correctly and
the computer system or Product meets the functionality and
compatibility specifications expected from such integration, but will
not be liable for incompatibilities or dysfunction caused by the
design, manufacture or condition of components not directly related to
the Configuration Services performed by Xxxxxx.
B. Configuration Services will have a warranty of sixty days (60) from
date of shipment and does not affect the manufacturers warranties on
components used in configurations. Ingram provides no warranty of
Goods/Product used in Configurations.
C. EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS C.5.A AND C.5.B, THERE ARE
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
6. GOODS WAREHOUSING
X. Xxxxxx requires at least thirty (30) days written notice from VSI
advising Ingram as to the type, quantity, place of delivery, and
estimated time of arrival of Goods/Product that are to be warehoused.
Ingram will then establish an Ingram Purchase Order and send a copy of
the Purchase Order to VSI. The Ingram Purchase Order must be
referenced with the incoming Goods that are to be received by Ingram.
Ingram reserves the right to refuse any shipment of Goods where VSI
fails to provide the correct documentation.
X. Xxxxxx will provide adequate warehouse space for all Goods forecasted.
If such warehouse space is found to be insufficient, Ingram will use
its best efforts to expand warehouse space in accordance with the
forecasted needs.
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X. Xxxxxx will warehouse the Goods/Product in a manner to avoid
commingling of the Goods with Product until such time as the
Goods/Product are combined for the purpose of Configuration under this
Agreement.
X. Xxxxxx will receive Goods shipped by VSI, or third party designated by
VSI, within twenty-four (24) hours of the delivery of such Goods at
Ingram. Ingram will post the receipt of Goods to Xxxxxx'x inventory
and ordering system at the time the Goods are received.
X. Xxxxxx will notify VSI of any short shipments or damaged shipments
within forty-eight (48) hours of receiving the Goods at Xxxxxx'x
warehouse.
F. All shipment of Goods to Ingram or the return of Goods to VSI or to
VSI's designated third party will be F.O.B. Ingram at VSI's expense.
X. Xxxxxx reserves the right to move, at its expenses, any Goods/Product
in storage from the warehouse in which they may be stored to any other
Ingram warehouse location. Ingram may, without notice, move
Goods/Product within the warehouse in which they are stored.
H. VSI will have the right, upon forty-eight (48) hours notice, to audit
inventory held by Ingram during normal business hours.
X. Xxxxxx will be responsible for shrinkage or damage to the Goods
greater than two percent (2%) of the value of the Goods while in
Xxxxxx'x possession.
J. If the quality or condition of Goods received by Ingram poses a hazard
to property, warehouse or persons, and such condition was unknown by
Ingram at the time of receipt, Ingram will provide written notice to
VSI, and will require the timely removal of such Goods from Xxxxxx'x
warehouse. Ingram may return the Goods to VSI freight collect. If
such action is impracticable, Ingram may remove or dispose of the
Goods in any lawful manner, including sale or destruction of the
Goods, and will incur no liability by reason of such methods. VSI
will bear all costs associated with the return, removal, sale,
disposition, or destruction of all Goods deemed to be hazardous.
K. Goods Warehousing fees will be assessed for all Goods stored on behalf
of VSI. Storage and handling fees are specified in EXHIBIT X.
X. Xxxxxx will provide VSI with weekly reports detailing on-hand
inventory.
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X. Xxxxxx is responsible for the security and inventory accountability
while warehoused or in Ingram possession.
X. Xxxxxx will agree to sign a confidentiality agreement, signed by both
parties, which will cover all company associates (personnel).
SECTION D: GENERAL TERMS & CONDITIONS
1. TERM AND TERMINATION
A. The initial term of this Agreement will commence on the Effective Date
set forth below and will continue for a period of one (1) year.
Either party may terminate this Agreement, with or without cause, by
giving thirty (30) days advance written notice to the other party.
Except that Ingram may terminate immediately if VSI is at any more
than ten (10) days delinquent in its payments to Ingram, requires
Ingram to perform an export shipment that is in contravention of the
U.S. export laws and regulations or fails to comply with any material
provision of this Agreement, ceases to conduct business in the normal
course, become insolvent, makes a general assignment for the benefit
of creditors, suffer or permit the appointment of a receiver for its
business or assets, avails itself of or become subject to any
proceeding under the Federal Bankruptcy Act or any other federal or
state statute relating to insolvency or the protection of rights of
creditors.
B. Termination of this Agreement will not relieve VSI of any amounts owed
or owing under this Agreement including, but not limited to, fees
associated with the warehoused Goods/Product and any work in process
costs. Upon termination, VSI will take all steps to have the Goods
removed from Xxxxxx'x warehouse within thirty (30) days after the date
of termination. In the event VSI fails to have Goods removed, Ingram
may take steps to remove the Goods and recover all associated costs as
provided by law, including, but not limited to sale of the Goods.
2. LIABILITY, LIMITATION OF DAMAGES, DISCLAIMERS
A. In the event of direct loss, injury or damage to the Goods while in
Xxxxxx'x possession, except for losses due to earthquakes, Ingram and
VSI will mutually decide which Goods require replacement, and Ingram
will replace the Goods lost or damaged. If such Goods cannot be
replaced, Ingram will pay VSI the actual costs incurred by VSI for
such Goods. VSI will allow Ingram to examine invoices, during normal
business hours, for such Goods upon request by Ingram.
Notwithstanding any other provision to the contrary in this Agreement,
Xxxxxx'x maximum liability for loss, injury or damage to Goods will
not exceed $1 million dollars.
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X. XXXXXX WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
DIRECT OR INDIRECT DAMAGES SUFFERED OR INCURRED BY VSI ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THE USE, STORAGE OR PERFORMANCE OF ANY OF
THE GOODS/PRODUCT OR CONFIGURATION.
C. VSI IS RESPONSIBLE FOR ANY WARRANTIES OR DISCLAIMERS WHICH IT MAY WISH
TO MAKE TO ITS CUSTOMERS WITH RESPECT TO THE GOODS OR CONFIGURATIONS
DELIVERED HEREUNDER.
3. INDEMNIFICATION
X. XXXXXX WILL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS VSI
FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY VSI ARISING
FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF
COPYRIGHTS FOR GOODS/PRODUCTS.
VSI SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS INGRAM FROM AND AGAINST
ANY CLAIMS, DEMANDS, LIABILITIES OR EXPENSES (INCLUDING ATTORNEY'S
FEES AND COSTS) RESULTING FROM ANY ACT OR OMISSION OF VSI IN THE
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT INCLUDING VSI'S
ASSURANCES THAT ALL PRODUCT SHIPMENTS COMPLY WITH U.S. LAWS AND
REGULATIONS REGARDING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
4. SALES TAX
VSI will assume full responsibility for the collection of all end-user
sales tax and reporting to the appropriate state and local authorities.
VSI agrees to defend, indemnify, and hold harmless Ingram from and against
any and all damages and costs incurred (including penalties) which may
result from inadequate collection and reporting of end-user sales tax.
5. INDEPENDENT PARTIES
The parties agree that each, except for the limited agency authority
granted by this Agreement, operates as a business independent of the other.
Both parties agree that neither of them will hold itself out to be the
agent, partner or related party of the other.
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6.
ACCOUNT TEAM
Ingram will dedicate a Regional Account Manager for VSI, based in Xxxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx. This person will coordinate with Xxxxxx'x Global
Account Team based in Santa Xxx, USA for business outside of Canada.
7. TAXES
VSI will bear all applicable federal, state, municipal, and other
government taxes, excluding any state or federal income tax liability of
Ingram. Exemption certificates, valid in the place of delivery, will be
presented to Ingram prior to shipment if they are to be honored.
8. RESALE ONLY/EXPORT
A. Configurations sales to VSI are limited to i) only Goods/Product for
which VSI has the publisher/manufacturer authorization (if required);
ii) exports that are permitted without license and in accordance with
export laws and regulations (as identified by the U.S. Department of
Commerce, Bureau of Export Administration and defined as "County Group
B") and which shall expressly exclude all "Country Group D&E"
destinations or relevant Canadian export laws.
B. All Goods/Products delivered to VSI hereunder are for resale only and
will not be used for internal business purposes of VSI or any parent
company, subsidiary or affiliate of VSI. Shipment of the
Goods/Products outside Canada and the United States may require a
valid export license.
9. COMPLIANCE WITH EXPORT LAWS
The Goods/Products are controlled for export by the U.S. Department of
Commerce and the Canadian Government and may require authorization prior to
export or re-export from the United States or Canada. Certain encrypted
Goods/Products require approval prior to export or re-export. VSI agrees
that it will not export, re-export, or otherwise distribute Goods/Products,
or direct products thereof, in violation of any export control laws or
regulations of the United States or Canada. VSI warrants that it will not
export or re-export any Goods/Products with knowledge that they will be
used in the design, development, production, or use of chemical,
biological, nuclear, or ballistic weapons, or in a facility engaged in such
activities, unless VSI has obtained prior approval from the Department of
Commerce or the Canadian Government.
10. CONFIDENTIALITY
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This Agreement is and contains confidential information, and as such will
not be disclosed to any third party without the express written consent of
both parties. The parties agree to disclose the terms and conditions of
this Agreement only to their respective personnel with a need to know.
11. AUDITS AND ACCOUNT RECONCILIATION
For export compliance, Xxxxxx reserves the right to audit VSI's business
process as part of Xxxxxx'x Due Diligence effort as required by the EAR's.
Xxxxxx and VSI shall mutually resolve any and all existing discrepancies
between the respective books and records between the two parties, including
but not limited to, any amounts due and payable between the parties and
order stock discrepancies, both as to count and condition.
12. NOTICES
All notices and other communications relating to this Agreement or its
terms will be in writing and mailed via first class Postal Service,
certified or registered with return receipt requested or via facsimile.
All notices so mailed will be deemed received two (2) days after postmark
date and facsimiles will be deemed received upon notification of successful
transmission.
13. GOVERNING LAW
This Agreement will be deemed made in the State of California and will be
governed by and construed in accordance with California laws, excluding its
conflicts or choice of law rule or principles which might refer to the law
of another jurisdiction. The state and federal courts situated in Orange
County, California will have non-exclusive jurisdiction and venue over any
dispute or controversy which arises out of this Agreement.
14. HEADINGS
This Agreement may be executed in any number of original counterparts,
each of which when executed and delivered will be deemed to be an original
and all of which taken together will constitute but one and the same
instrument. Headings in this Agreement are included for convenience of
reference only and will not constitute a part of this Agreement for any
other purpose.
15. ENTIRE AGREEMENT
This Agreement (including any Exhibits and Addenda) constitutes the entire
Agreement between the parties regarding the subject matter herein, and will
cancel, terminate, and supersede any and all previous agreements,
proposals, representations, or statements, whether oral or written. The
terms of this Agreement will supersede the terms of any
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invoice or purchase order issued by either party. Any modifications of
this Agreement must be in writing and signed by an authorized
representative of each party.
16. SURVIVAL
Sections X.0, X.0, X.0, X.0, X.0, X.00, X.00, and D.16 shall survive the
expiration or earlier termination of this Agreement.
17. CURRENCY
All monetary figures quoted here are expressed in Canadian funds.
THIS AGREEMENT WILL BECOME EFFECT AS OF THE LAST DATE OF SIGNATURE BY THE
AUTHORIZED PARTIES BELOW.
"VSI" "XXXXXX"
BY: /S/ XXXX XXX BY: /S/ XXXXXX XXXXXX
------------------------------------ ------------------------------------
NAME: XXXX XXX NAME: XXXXXX XXXXXX
---------------------------------- ----------------------------------
TITLE: PRESIDENT TITLE: VICE PRESIDENT SALES
--------------------------------- ---------------------------------
DATE: SEPTEMBER 1, 1998 DATE: SEPTEMBER 22, 1998
---------------------------------- ----------------------------------
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EXHIBIT A
CONFIGURATION SERVICES PRICING
REDACTED
EXHIBIT B
GOODS WAREHOUSING FEES
REDACTED
EXHIBIT C
SPECIAL LIMITED POWER OF ATTORNEY
The undersigned, Video Stream International Inc. ("VSI") doing business as
TeraGlobal Communications Corp., a _____________________ corporation, located at
0000-000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0, hereby
appoints Xxxxxx Micro Inc. ("Xxxxxx"), a Delaware corporation, located at 0000
Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx, 00000, as its limited agent
(attorney-in-fact) to act in its place for the purpose of executing export
documents. To further that purpose, the attorney-in-fact shall have the
following powers:
1. To prepare and execute:
Commercial Invoice Document (Export Certification Statement)
Shipper's Export Declaration
Shipper's Letter of Instruction
Xxxx of Lading/Air Waybill
Statement of Origin
I further grant to my attorney-in-fact the authority to take whatever other
actions are reasonably necessary to exercise the above noted items in 1.) "To
prepare and execute" of this "Exhibit C.
This power of attorney is granted for a period of Twelve (12) months. It shall
become effective on _________________, 19____, and terminate on
___________________, 19____.
FOR:
"VSI"
VIDEO STREAM INTERNATIONAL INC.
By:
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(OFFICER OF THE COMPANY)
Name:
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(PLEASE PRINT OR TYPE)
Title:
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Date:
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