SONY
COMPONENT & COMPUTER PRODUCTS GROUP
VALUE ADDED RESELLER AGREEMENT
SONY ELECTRONICS INC.
THIS AGREEMENT is made this first day of May 1996, by SONY ELECTRONICS INC.
through its COMPONENT & COMPUTER PRODUCTS GROUP., with a place of business at
0000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000 (hereinafter referred to as the
"Division"), and Pacific Magtron maintaining its principal office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 (hereinafter referred to as the "Buyer").
WITNESSETH:
WHEREAS, the Division is engaged in the sale, licensing and distribution of
various kinds of electronics products and accessories; and,
WHEREAS, the Buyer desires to purchase and/or license certain of such products
and accessories as part of systems manufactured, integrated or assembled or
integrated by the Buyer for resale, leasing, licensing or other distribution.
NOW, THEREFORE, by reason of the foregoing premises, and in consideration of the
mutual covenants set forth in this Agreement, the parties agree as follows:
ARTICLE 1.0 DEFINITIONS. FOR PURPOSES OF THIS AGREEMENT:
1.1 The term the "Products" shall mean those products and accessories listed on
Appendix I attached to this Agreement and made a part hereof, which list
may be amended from time to time by the Division adding or deleting
products and accessories therefrom and by giving the Buyer notice thereof.
1.2 The term the "Systems" shall mean those integrated systems generally
described in Appendix I attached to this Agreement and made a part hereof,
that are manufactured, integrated or assembled by the Buyer containing the
Products or that add significant value to the Products by the Buyer's
combination of same with products or accessories manufactured, integrated
and/or assembled or distributed by the Buyer.
1.3 The term the "Customers" shall mean those customers for the Buyer's Systems
in those classes of trade designated on Appendix I attached to this
Agreement and made a part hereof, which designation may be amended from
time to time by the Division adding or deleting classes of trade therefrom
and by giving the Buyer notice thereof.
ARTICLE 2.0 SCOPE OF THIS AGREEMENT.
2.1 General: The Division agrees to sell and/or license, and the Buyer agrees
to purchase, the Products from the Division for the Buyer's incorporation
thereof and/or license into the Systems for resale, as part of the Systems,
to the Customers upon the terms and conditions set forth in this Agreement.
2.2 Limitations: The Buyer acknowledges that its right to resell, lease,
license and distribute the Products under this Agreement is non-exclusive,
and that the Division reserves the right to sell, lease, license and
distribute any of its products to any customers in the world, and to
appoint, in its sole discretion, any additional resellers or third parties,
including itself, at any location as may be chosen by the Division, without
giving the Buyer notice thereof and without incurring any liability to the
Buyer therefor.
2.3 Status as Independent Contractor: The Buyer acknowledges that it is an
independent contractor of the Division and that it has no right or
authority to assume or create any obligation of any kind, whether express
or implied, on behalf of the Division. The Buyer shall make no warranties
or representations to any third party with respect to any of the Products,
except those expressly approved in writing by the Division. The Buyer will
defend, indemnify and hold the Division (and/or its officers, directors,
employees and agents) harmless from all suits, claims, losses and damages
(including reasonable attorney's fees) arising from any claims against the
Division as a result of the Buyer's default in the performance of its
obligations under the terms and conditions of this Agreement.
2.4 Access: The Buyer shall give the Division such documentation as the
Division may reasonably request to verify the Buyer's performance of its
obligations under the terms and conditions of Section 5.4 and Appendix 1.
ARTICLE 3.0 ORDERING PROCEDURE.
3.1 Orders: On or before the date first above written, and on or before the
start of each calendar month thereafter, the Buyer shall place with the
Division the Buyer's firm order for the Products it wishes to purchase
and/or License for delivery during the calendar month following the
Division's then current leadtimes therefor. All the Buyer's orders will be
in writing, will refer to this Agreement, and will indicate the quantities,
shipping dates and shipping destination requested. The Division reserves
the right to reject any Buyer order and each Buyer order will only be
deemed accepted by the Division when acknowledged in writing or by the
Division's delivery of the Products covered thereby. Except as provided in
this Section, any term or condition set forth in any Buyer order or other
purchasing document which are inconsistent with, different from', or in
addition to, the terms and conditions of this Agreement, will have no force
or effect unless separately agreed to by the Division in writing.
3.2 Forecasts: No later than the tenth (10th) calendar day of each month during
the term of this Agreement, Buyer shall furnish the Division with a
non-binding forecast of its anticipated needs for the Products for delivery
during the immediately following three (3) month period.
3.3 Purchases: The Buyer shall use its best efforts to purchase and/or license
for delivery during the term of this Agreement those minimum quantities of
the Products referred to in Appendix 2 attached hereto and made a part
hereof. Such minimum purchase requirement will not be interpreted or
construed as a "take or pay" obligation on the part of the Buyer, but may
be used by the Division to determine whether it, in its sole discretion,
wishes to offer the Buyer the right to continue to purchase and/or license
the Products after the expiration or termination hereof and/or as an
eligibility requirement for any promotional programs and the like
concerning the Products the Division may wish to run during the term
hereof.
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ARTICLE 4.0 SALE OF THE PRODUCTS.
4.1 Terms: The Division shall sell and/or license the Products to the Buyer
upon the terms and conditions set forth in this Agreement.
4.2 Prices: The Division shall sell and/or license the Products to the Buyer at
the prices and fees set forth on Appendix 2 attached to this Agreement and
made a part hereof, subject to adjustment as provided for in that Appendix.
Not withstanding the foregoing, Division reserves the right to adjust the
prices for the Products by giving the Buyer notice thereof
4.3 Allocations: The Division reserves the right to allocate its inventory of
Products in such a manner as it may, in its sole and absolute discretion,
from time to time, determine without incurring any liability therefor.
4.4 Specifications: The Buyer acknowledges that the Division may discontinue
the sale and/or licensing of any of the Products and any parts thereof
(except where continued availability is required by federal law) as it, in
its sole discretion, determines, without giving the Buyer notice thereof
and without incurring any liability to the Buyer therefor. Notwithstanding
the foregoing, the Division will use its best efforts to give the Buyer
prior notice of any such discontinuance or change affecting the Product's
form, fit or function. If, because of any discontinuance or change to the
Products affecting their form, fit or function, Buyer does not wish to
purchase and/or license same or any of the other products covered by this
Agreement, then the Buyer may terminate this Agreement by giving the
Division notice thereof within ten (10) days of the Division's notice to
it. In addition, the Division will afford the Buyer the opportunity to
purchase and/or license from it, on a "last call" basis hereunder, any of
the Products to be so discontinued or so changed within thirty (30) days of
such notice.
4.5 Taxes: The Buyer shall bear the cost and expense of any taxes, levies,
duties and fees of any kind, nature or description whatsoever applicable to
the Products sold and/or licensed to it by the Division, other than taxes
based solely on the Division's own income derived therefrom. The Buyer will
promptly pay to the Division all such amounts upon the Division giving the
Buyer notice thereof unless the Buyer provides the Division with exemption
certificates or licenses acceptable to the appropriate taxing authorities.
ARTICLE 5.0 THE SYSTEMS.
5.1 General: The Buyer represents to the Division that all the Products
purchased and/or licensed by it under this Agreement shall be incorporated
into the Systems or be sold as replacement parts for the Systems and will
only be sold to the Customers of the Systems with significant value added
thereto. The Buyer will defend, indemnify and hold the Division (and/or its
officers, directors, employees and agents) harmless from all suits, claims,
losses and damages (including reasonable attorneys' fees) arising from any
claims against the Division as a result of the Buyer's default in the
performance of its obligations under this Section.
5.2 Specific Uses: The Buyer will not knowingly, sell, lease, license or
distribute the Systems for use in aircraft instrumentation or for life
support purposes. In addition, if the Buyer sells, leases, licenses or
distributes the Systems for any medical purpose or application, Buyer will,
at its own cost and expense, obtain and maintain all approvals and permits
required by the United States Federal Food, Drug & Cosmetic Act of 1938, as
now in effect or hereafter amended, concerning same and will not resell,
lease, license or distribute any of the Products in any way that will make
them be adulterated or misbranded within the meaning of the Act, or be an
article which may not be introduced into interstate commerce pursuant to
the requirements of Sections, 404, 415, 510, 513 or 515 thereof, nor be in
violation of any similar law or any other jurisdiction having authority
over the manufacture, processing and distribution of the Systems or the
Products. The Buyer will defend, indemnify and hold the Division (and/or
its officers, directors, employees and agents) harmless from all suits,
claims, losses and damages (including reasonable attorneys' fees) arising
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from any claims against the Division as a result of the Buyer's default in
the performance of its obligations under this Section.
5.3 Trademarks: The Buyer acknowledges the validity of the Division's
tradenames and trademarks and that it shall have no right to or interest in
any trade names or trademarks owned, used or claimed now or in the future
by the Division or Sony Corporation (Japan) as a result of this Agreement.
5.4 Documentation Accompanying the Products: The Buyer shall furnish the
Customers for the Systems with all warranty cards and other documentation
accompanying the Products at the time of their delivery to the Buyer and
will not remove any Sony trademarks, trade names, serial numbers and other
Sony identification appearing on the Products, without the prior written
consent of the Division. HOWEVER, IF THE BUYER MODIFIES THE PRODUCTS FOR
THE SYSTEMS, THEN IT WELL REMOVE ALL SUCH CARDS, DOCUMENTATION, TRADEMARKS,
TRADE NAMES, SERIAL NUMBERS AND IDENTIFICATION.
ARTICLE 6.0 SHIPMENTS.
6.1 Title and Risk of Loss: Title to all the Products sold (but not licensed)
by the Division to the Buyer shall pass upon the Division's delivery
thereof to the carrier. Risk of loss or damage to any of the Products in
transit, without regard to whether the Division paid the shipping charges
therefor or whether any third party is designated as consignee thereof, is
the Buyer's, whose responsibility it will be to file claims with the
carrier.
6.2 Time of Delivery: Delivery dates set forth in any Buyer order or other
purchasing documents, or any confirmation thereof by the Division, shall be
deemed to be estimated only and subject to the Division's then current
leadtimes for the Products. The Buyer will not be excused from payment of
any amounts it owes to the Division or from the performance of any of its
other obligations under the terms and conditions hereof as a result of, and
the Division will not be liable to the Buyer for damages resulting from,
the Division's failure to meet any of those dates. However, if the
Division's delay in shipment or delivery of any ordered Products exceeds by
ninety (90) days such first estimated date, then either party may cancel
any Buyer order or part thereof not previously fulfilled by giving the
other notice thereof, and without incurring any liability to the other
therefor.
6.3 Separate Transaction: Each Buyer order for the Products shall be deemed a
separate transaction and each shipment of the Products by the Division will
constitute a separate sale and/or license, obligating the Buyer to pay
therefor, whether such shipment be in whole or only in partial fulfillment
of such order.
6.4 Stop Shipments: The Buyer acknowledges that the Division reserves the
right, in its sole discretion, to cancel any Buyer orders previously
accepted by the Division or to delay the delivery of any of the Products
covered thereby if the Buyer defaults in any of its obligations under this
Agreement or if the Division reasonably believes that the Buyer may do so
for or with respect to any past or pending Buyer order.
ARTICLE 7.0 CREDIT, PAYMENT AND INDEBTEDNESS.
7.1 Maintenance of Credit Line: The Buyer shall maintain a credit line
sufficient to support its purchase and/or license of the Products under
this Agreement. The Buyer will provide the Division with such statements of
the Buyer's financial condition as the Division may reasonably request by
giving the Buyer notice thereof. The Buyer acknowledges that the Division
may, from time to time, vary, change or limit the amount or duration of
credit allowed to the Buyer either
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generally or with respect to any specific order for the Products by giving
the Buyer notice thereof and without incurring any liability to the Buyer
therefor.
7.2 Payment Term: Buyer shall pay to the Division the net purchase price of all
Product shipped hereunder within thirty (30) days after the date of
Division's invoice.
7.3 Unauthorized Deductions: The Buyer shall not make deductions of any kind
from any amount it owes to the Division unless the Buyer has received an
official credit memorandum from the Division authorizing such deduction.
The making of any such deduction shall be grounds for immediate cessation
of further deliveries to the Buyer and/or termination of this Agreement by
the Division without liability of the Division therefor.
7.4 Charge for Late Payment: If payment is not received by the Division when
due, the Division shall have the right, in its sole and absolute
discretion, to levy, in addition to the prices specified, a monthly charge
equal to the lesser of (i) one and one-half percent (1-1/2%) of the
invoiced amount for each month during which the payment remains
outstanding, including any month in which payment was due and not received,
or (ii) the maximum allowable by law. If at any time the Buyer's account is
subject to a finance charge hereunder, in addition to any other remedies,
the Division reserves the right to stop all further shipments to the Buyer.
Late payment shall constitute a material breach by the Buyer hereunder and
constitute a basis for termination of this Agreement by the Division.
7.5 Defaults: If the Buyer defaults in the payment of any amount it owes to the
Division when due, and if such default continues for a period of ten (10)
days after the Division gives the Buyer notice thereof, then, in addition
to any other remedy available to the Division under this Agreement or at
law therefor, all amounts payable by the Buyer to the Division, whether
then due or not, shall, in the Division's sole discretion, and without
further notice to the Buyer, become immediately due and payable.
ARTICLE 8.0 PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT.
8.1 Claims of Direct Infringement: Subject to the terms and conditions of this
Article 8.0, the Division warrants to the Buyer that, to the best of the
Division's knowledge, the Products as and when manufactured and delivered
by the Division to the Buyer shall be free of any rightful third party
claim of direct infringement of any United States patent, trademark or
copyright by the Products per se.
8.2 Indemnification by the Division: The Division shall, at its own cost and
expense, defend any claim or suit alleging direct patent, trademark or
copyright infringement instituted against the Buyer or other affiliated
companies in which the Buyer has direct ownership (and/or its officers,
directors, employees and agents) but not customers of the Buyer, and
indemnify the Buyer (and/or its officers, directors, employees and agents)
against any award of damages and costs for direct infringement (including
reasonable attorneys' fees) made against the Buyer by a court of last
resort, insofar as such award of damages is based on a final determination
that the Products as and when delivered by the Division to the Buyer under
this Agreement directly infringed any patent, trademark or copyright of the
United States. Indemnification of costs hereunder will extend only to
actual costs assessed. This indemnity will not apply to the Products made
by or for, or modified by or for, the Division in accordance with the
Buyer's specifications or requests.
8.3 Conditions Under Which Indemnification Applies: The Division's obligation
under Section 8.2 shall be conditioned on the following: (a) the Division
shall be notified promptly in writing by Buyer of any notice of such claim,
but in no event later than ten (10) days after Buyer shall have received
any notice thereof-, (b) the Division, in its sole discretion, is given
sole control of the defense of any such claim, suit or allegation and all
negotiations for its settlement or compromise; (c) the Buyer fully
cooperates with the Division in the defense and all related settlement
negotiations. If the Products become, or in the Division's opinion are
likely to become, the subject of such a claim, allegation or suit then the
Buyer permits the Division, at the Division's own cost
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and expense but in its sole discretion: (1) to procure for the Buyer the
right to continue using the affected Products; (2) to replace or modify the
affected Products so that they become noninfringing; or, (3) to remove the
affected Products and refund the purchase price the Buyer paid therefor.
8.4 Exclusions: Notwithstanding the terms and conditions of Sections 8.1, 8.2
and 8.3, the Division shall have no liability to the Buyer if any such
claim, allegation or suit is based upon or arises out of. (a) alterations
of the Products by the Buyer or any third party; (b) failure of the Buyer
to use updated Products provided by the Division for avoiding such
infringement; (c) use of the Products in combination with equipment,
software or products not furnished by the Division except for those
expressly approved in writing by the Division; (d) processes or methods
allegedly performed by the Products except those expressly approved in
writing by the Division: (e) use of the Products in the manner for which
the same were neither designed nor contemplated; or, (f) a patent,
trademark or copyright in which the Buyer or an affiliate or subsidiary of
the Buyer has a direct or indirect interest by license or otherwise.
8.5 Disclaimer of Warranty Against Infringement: THE WARRANTY SET FORTH IN
SECTION 8.1 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH
REGARD TO ANY CLAIM OF INFRINGEMENT BY THE PRODUCTS. THE DIVISION HEREBY
DISCLAIMS AND EXCLUDES ALL WARRANTIES AGAINST INFRINGEMENT THAT MAY BE
PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY
OTHER COMPARABLE STATE STATUTE.
8.6 Limitation of Liability For Infringement Claims: The terms and conditions
of this Article and Article 11.0 state the entire liability of the Division
to the Buyer for any claim arising from, or based upon, infringement of any
third party intellectual property right including but not limited to
patent, trademark or copyright infringement.
8.7 Indemnification by the Buyer: The Buyer shall, at its own cost and expense,
defend, indemnify and hold harmless the Division (and/or its officers,
directors, employees and agents) in the same manner and to the same extent
described in Section 8.2 from any claim, allegation or suit against the
Division (and/or its officers, directors, employees and agents) in which
the alleged direct patent, trademark or copyright infringement arises from:
(a) any of the Products made by or for, or modified by or for, the Division
in accordance with the Buyer's specifications or requests; (b) alteration
of the Products by the Buyer; or, (c) from the combination of the Products
with equipment, software or products not furnished by the Division except
for those expressly approved in writing by the Division
ARTICLE 9.0 INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE.
9.1 Retention of Rights: The Buyer acknowledges that the Division or, in
applicable instances, the Division's licensor, retains the entire right and
title in and to the intellectual property of any software the Division
furnishes to the Buyer pursuant to this Agreement. The Buyer shall enter
into such agreements as the Division may from time to time request as a
condition to the Division furnishing the Buyer any such software and the
Buyer's distribution, use or modification thereof.
9.2 Software as Products: Unless an agreement of the type referred to in
Section 9.1 is entered into, the Buyer shall only license and/or distribute
and shall not unbundle, offer for sale or in any way attempt to separate
the software the Division furnishes to it for distribution as one of the
Products, and then only on those terms and conditions, not including
license fees, as the Division may, from time to time, request. The Buyer
agrees that they will not remove any end user license agreement included
with the software and will not modify or reverse engineer the software.
9.3 Customer Licenses: The Buyer shall obtain for and deliver to, the Division
customer signed copies of any agreements the Division may, from time to
time, require the Buyer's customer to enter into as a condition to their
use of any software the Division furnishes to the Buyer for distribution as
one of the Products. Although the Buyer will not be responsible for the
enforcement of any such agreements, it will take such actions as the
Division may from time to time reasonably request by
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giving the Buyer notice thereof not to induce or contribute reasonably to
any customer's default under such an agreement.
ARTICLE 10.0 INSPECTION AND WARRANTY.
10.1 Upon receipt of shipment hereunder, Buyer shall inspect the Products under
such shipment. Claims for shortages, incorrect materials or invoicing
errors must be made by Buyer within twenty (20) days after receipt of
shipment. Claims for non-receipt of shipment must be made within twenty
(20) days after receipt of invoice. Claims for defects in material,
workmanship or failure to meet specifications must be made within the time
period specified below.
10.2 Division warrants that the Products furnished hereunder will at the time of
shipment, and for the period specified in Appendix 2 ("Warranty Period"),
be free from defects in material and workmanship under normal use and
service and will conform to Division's applicable standard written
specifications.
10.3 Should any Product prove defective by reason of improper material or
workmanship or failure to meet the specifications, and if Buyer shall have
so notified Division in writing within the period specified above and shall
have specified in such notice the alleged defects and/or failures, and if
such Product is found to Division's satisfaction to be nonconforming,
Division shall, at Division's option, either repair or replace such
defective Product at Division's cost or refund the purchase price of such
defective Product within sixty (60) days after receipt of such defective
Product. Division shall not be required to remove or install any Products
from or into Buyer's product(s) or system(s) for the purpose of such repair
or replacement.
10.4 Notwithstanding the above, Division shall have no warranty, liability or
obligation to the Buyer with respect to any software which may be contained
on any media Products; or any Products which have been subjected to
operating and/or environmental conditions in excess of the maximum values
therefor in the applicable specifications or otherwise have been subjected
to abuse, misuse, improper use, improper testing, negligence, accident,
alteration, tampering or faulty repair, such as, by way of example, any
Product that has been reconfigured by Buyer; or any Product which has been
altered, repaired or modified other than upon Division's prior written
approval; or any Product subjected to unusual physical, electrical or
environmental stress or improper installation; or any Product that has any
foreign equipment or component, either residing in Buyer's chassis or
connecting to it other than via a Division-supplied interface device,
unless such foreign equipment or component is first removed, and no defect
has been induced by its incorporation. Nor shall this warranty extend to
subsequent purchasers or end users of Buyer's product(s) in which
Division's Products may be incorporated.
10.5 Division hereby disclaims any representations or warranty that the Products
are or will be compatible with any combination of non-Sony products Buyer
may choose to connect to the Products. It shall be Buyer's responsibility
to determine for itself the suitability and compatibility of the Products
in each instance.
10.6 Continued use or possession of the Products after expiration of the
applicable warranty period stated above shall be conclusive evidence that
the warranty is fulfilled to the full satisfaction of Buyer. Division's
warranties as hereinabove set forth shall not be enlarged, diminished or
affected by, and no obligation or liability shall arise or grow out of,
Division's rendering of technical advice or service in connection with
Buyer's order of the Products furnished hereunder.
10.7 THE BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED ABOVE, NO
WARRANTIES WITH REGARD TO THE PRODUCTS, WHETHER OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, ARE CREATED BY THIS
AGREEMENT AND THE DIVISION HEREBY DISCLAIMS AND EXCLUDES ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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ARTICLE 11.0 LIMITATION OF LIABILITY.
THE LIABILITY OF THE DIVISION, IF ANY, FOR DAMAGES FOR ANY CLAIM OF ANY
KIND WHATSOEVER AND REGARDLESS OF THE LEGAL THEORY, WITH REGARD TO ANY
ORDER PLACED BY THE BUYER HEREUNDER, REGARDLESS OF THE DELIVERY OR
NON-DELIVERY OF SUCH PRODUCTS, OR WITH RESPECT TO THE PRODUCTS COVERED
THEREBY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE
PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE. IN NO EVENT SHALL
DIVISION BE LIABLE TO THE BUYER FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL DIVISION BE LIABLE TO THE
BUYER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF
PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS,
WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS
REPUTATION OR GOODWILL, OR FOR LOSS OF DATA, COST OF SUBSTITUTE PRODUCTS,
COST OF CAPITAL, AND THE CLAIMS OF ANY THIRD PARTY, OR FOR ANY OTHER REASON
WHATSOEVER
ARTICLE 12.0 TERM AND TERMINATION.
12.1 Term: This Agreement shall become effective as of this date first above
written and will expire on April 30, 1997 unless sooner terminated in
accordance with the terms and conditions hereof.
12.2 Termination for Convenience: This Agreement may be terminated without cause
by either party by and upon ninety (90) days prior written notice given to
the other party by registered or certified mail, in which event this
Agreement shall terminate on the date set forth in such notice. The date of
mailing said written notice shall be deemed the date on which notice of
termination of the Agreement shall have been given.
12.3 Termination for Cause: This Agreement may be terminated by either party
upon the occurrence of any of the following, by the aggrieved party giving
written notice to the other party by registered or certified mail, in which
event this Agreement shall terminate on the date set forth in such notice.:
(a) The Buyer defaults in the payment of any amount it owes to the Division
when due and such default continues for a period of ten (10) days after the
Division gives the Buyer notice thereof.
(b) If any proceeding in bankruptcy or in reorganization or for the
appointment of a receiver or trustee or any other proceedings under any law
for the relief of debtors shall be instituted by or against the other party
or if the other party shall make an arrangement for the benefit of
creditors;
(c) A breach by either party of any terms of this Agreement which breach is
not remedied to the aggrieved party's satisfaction within ten (10) days of
the breaching party's receipt of notice of such breach
(d) Either party engaging directly or indirectly in any attempt to defraud
the other party;
(e) The occurrence of any of the events referred to in Article 13.1 (a)
through (c), or the Buyer'sfailure to give the Division notice of an event
referred to in Article 13.1 (a) through (c).
12.4 Remedies for Breach: If the Buyer defaults in the performance of its
obligations under the terms and conditions of this Agreement, then the
Division may, in addition to any other remedy available to it hereunder or
at law, suspend or cease further shipments of the Products to the Buyer or
suspend doing business with the Buyer.
12.5 Right of Set-Off: If the Buyer defaults in the performance of its
obligations under the terms and conditions of this Agreement or any other
agreement(s) with any other division of Sony Electronics Inc., then the
Division may, in addition to any other remedy available to it hereunder or
at law, set-
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off any amounts owed to it pursuant to this Agreement or such other
agreements. Upon the termination of this Agreement, any amounts the
Division owes to the Buyer will be first off-set against any amounts the
Buyer owes to the Division, or any other division of Sony Electronics Inc..
12.6 Effect on Other Agreements: Upon the termination of this Agreement, the
Division may, in its sole discretion, terminate any/or all other agreements
then in effect BETWEEN THE BUYER AND THE DIVISION and/or any other division
of Sony Electronics Inc. Said right of termination as set FORTH HEREIN
shall be in addition to and to the extent necessary supersede any right of
termination which may be provided for in any of such other agreements.
12.7 Surviving Obligations and Limitations: Neither the expiration or
termination of this Agreement nor the termination of any agreement referred
to in Section 12.6 shall release the Buyer from its obligation to pay any
amount it owes to the Division or operate to discharge any liability to the
Division incurred by the Buyer prior thereto.
12.8 Order Procedure After Notice of Termination: During the period between the
Division giving the Buyer notice of default or notice of this Agreement's
termination and the date of cure or effective date of such termination, all
Buyer orders for the Products that are accepted by the Division shall be
shipped to the Buyer only upon a cash with order basis.
ARTICLE 13.0 NOTICES.
13.1 The Buyer agrees to give the Division immediate notice in writing of any:
(a) Transaction affecting the ownership of ten percent (10%) or more of
the Buyer's capital stock, if a corporation;
(b) Change in the respective interest of the partners, if a partnership;
(c) Transaction affecting the ownership of any part of the business, if an
individual proprietorship; and
(d) Changes in address of its headquarters or branch locations.
13.2 Any notice given under this Agreement shall be deemed to have been
sufficiently given when sent by certified or registered mail to the
respective parties hereto at the address designated by each of them
respectively in this Agreement, or as subsequently changed by notice duly
given. The date of mailing said written notice shall be deemed the date on
which notice has been given.
ARTICLE 14.0 GENERAL.
14.1 Export: The Buyer represents and warrants to the Division that the Buyer
shall not export the Products covered by this Agreement in violation of
U.S. export laws and regulations. The Buyer will be solely responsible for
compliance with and the obtaining of any required export licenses.
14.2 Assignment: The Buyer shall not assign or otherwise transfer this Agreement
or any interest herein or any right hereunder to any third party without
the prior written consent of the Division, and any such purported
assignment, transfer or attempt to assign or transfer any interest herein
or right hereunder without the prior written consent of the Division will
be deemed immediately null, void and of no force or effect and this
Agreement will be deemed immediately terminated.
14.3 Waivers: No waiver by the Division of any default in performance on the
part of the Buyer under this Agreement or of any breach or series of
breaches by the Buyer of any of the terms or conditions of this Agreement
shall constitute a waiver of any subsequent default in performance under
this Agreement or any subsequent breach of any terms or conditions thereof.
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14.4 Non-Exclusivity of Remedy: Any specific right or remedy provided in this
AGREEMENT SHALL NOT BE exclusive but will be cumulative of all other
rights and remedies set forth herein or allowed by law.
14.5 Litigation: In the event of any litigation between the parties with
respect to this AGREEMENT, THE prevailing party (the party entitled to
recover costs of suit, at such time as all appeals HAVE BEEN exhausted or
the time for taking such appeals has expired), shall be entitled to
recover REASONABLE attorneys' fees and costs in addition to such other
relief as the court may award. This provision shall survive the
expiration or termination of this Agreement.
14.6 Headings: The headings of Articles and sections in this Agreement are for
convenience and reference only, and they shall in no way define, limit or
describe the scope of the terms and conditions of such Articles and
sections and will not be considered in the interpretation, construction
or enforcement hereof.
14.7 Governing Law, Venue and Waiver of Jury Trial: (i) This Agreement shall
be construed and enforced in accordance with the local law of the State
of California. (ii) The parties hereby consent to and submit to the
jurisdiction of the federal and state courts located in the State of
California, and any action or suit under this Agreement shall only be
brought by the parties in any federal or state court with appropriate
jurisdiction over the subject matter established or sitting in the State
of California. The parties shall not raise in connection therewith, and
hereby waive, any defenses based upon the venue, the inconvenience of the
forum, the lack of personal jurisdiction, the sufficiency of service of
process, or the like in any such action or suit brought in the State of
California. Ibis provision shall survive the expiration or termination of
this Agreement.
14.8 Waiver of Jury Trial: BUYER HEREBY WAIVES ALL RIGHT OR ENTITLEMENT TO
TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR
RELATES IN ANY WAY TO THIS AGREEMENT. THIS PROVISION SHALL SURVIVE THE
EXPIRATION OR TERMINATION OF THIS AGREEMENT.
14.9 Invalidity: If and to the extent that any of the terms and conditions
hereof are specifically determined by any court to be in whole or in part
invalid or unenforceable, this Agreement will be deemed immediately
terminated.
14.10 Government Contracts: No term or condition required in any United States
government contract or subcontract related thereto shall be deemed a part
of this Agreement, or be imposed upon or binding upon the Division, and
this Agreement will not be deemed an acceptance of any government term or
condition that may be included or referred to in any Buyer order or other
purchasing document
ARTICLE 15.0 ENTIRETY OF AGREEMENT.
This Agreement supersedes, terminates and otherwise renders null and void
any and all prior written and/or oral agreements entered into and between
the parties with respect to the Products, except that nothing herein
contained shall be interpreted or construed to discharge the Buyer from
its obligation to pay any amount it owes to the Division or to discharge
any liability to the Division incurred by the Buyer prior to the date
first above written. This Agreement represents and incorporates the
entire understanding of the parties with respect to the matters herein
expressly set forth, and each party acknowledges that there are no
warranties, representations, covenants or understandings of any kind,
nature or description whatsoever made by either party to the other,
except as are herein expressly set forth. This Agreement may only be
amended by means of a written agreement between the parties which states
that it is an amendment hereto.
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ARTICLE 16.0 ACCEPTANCE.
This Agreement shall be subject to acceptance by the Division, through
its execution by an authorized representative thereof
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first above written.
Component & Computer Products Group Pacific Magtron:
Sony Electronics Inc.
By: /s/ Yasuhiro Kuga By: /s/ Xxx Xx
Xxxxxxxx Xxxx Authorized Signature
President Printed Name: Xxx Xx
Title: Managing Partner
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APPENDIX 1
PRODUCTS AND SYSTEMS
THE PRODUCTS are as follows:
CD-ROM Drives
Floppy Disk Drives
CD-R Drives
The Systems are as follows:
Multi-Media Kits
Peripheral Subsystems
In all events, the Systems will consist of the Products combined with or
incorporated into plug and play subsystems or standalone systems in each
case, using equipment and/or programs manufactured or developed by or for
the Buyer.
The Customers are as follows:
Buyer certifies and agrees that the System will be leased or resold in
the regular course of business to the customers. Buyer may not resell the
Products to end users that are affiliated with Buyer, or have an equity
interest in Buyer.
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APPENDIX 2
MINIMUM QUANTITIES AND PRICES
Volume Level Products Price Per Unit
------------ -------- --------------
100 units per month CDU76S $97.00
100 units per month CDU920S $550.00
100 units per month CDU924S $500.00
100 units per month CDU111 $85.00
100 units per month CDU311 $109.50
100 units per month MPF5201/13 $19.50
Delivery for the Products will be FOB: Division's shipping location.
Minimum per-shipment quantity 100 units per product type
The warranty period applicable to
each of the Products is: one year from date of invoice.
Current minimum lead time: 90 days from receipt of order.
The prices to be initially charged the Buyer will be those designated for Volume
Levels indicated above. If the Buyer does not purchase for delivery at least
thirty percent (30%) of its applicable Volume Level in the first six (6) months
of this Agreement, the Division will increase such price, for the remainder 'of
the Agreement term, to the price contained in the Division's then current volume
price list which pertains to the prorated Volume Level at which the Buyer has
actually purchased.
If, at the end of the first six (6) months of this Agreement, the Buyer has
purchased for delivery more than one hundred twenty percent (120%) of the
semiannual prorated portion of its maximum initial Volume Level, then it may,
with Division's approval, purchase Products at the next higher applicable Volume
Level for the remaining term of the Agreement. If, at the end of the term of
this Agreement, Buyer's purchases exceed the agreed upon Volume Levels, the
Division will issue a credit for the difference in the prices paid and the price
which would have been paid at the higher Volumes actually achieved. Subject to
Section 12.5, any such credit will be issued in the form of a credit memorandum
by the Division to the Buyer.
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