This Agreement is made and is effective as of the 1st day of March, by and
between Navarre Corporation ("Navarre") of 7400 49th Avenue North, New Hope,
Minnesota, 55428 and CyberMedia of 3000 Ocean Park Boulevard, Suite 2001, Santa
Monica, California 90405 ("Vendor".)
The Parties have agreed as follows:
1.1 The term "Product(s)" shall mean all computer software and hardware,
and related products manufactured or marketed by Vendor during the term
of this Agreement as set forth in Exhibit "A."
1.2 The term "Dealer(s)" shall mean any third party or entity to which
Navarre markets any Products for remarketing.
2. GRANT OF MARKETING RIGHTS
2.1 Vendor grants to Navarre and Navarre accepts from Vendor the right to
purchase Products and to market and distribute Products to Dealers in
North America. This grant is non-exclusive unless otherwise agreed to
by the parties.
2.2 Vendor represents and warrants that as of the date of this Agreement
that it does not sell products to any Distributor not listed on Exhibit
"B" to this Agreement. Vendor agrees to notify Navarre of any new
Distributors added to this list within thirty (30) days of such
3.1 The initial term of this Agreement shall be for a period of one (1)
year, unless sooner terminated as provided by this Agreement.
3.2 After the initial term, this Agreement shall be automatically renewed
for successive one (1) year period, unless either party gives the other
written notice at least ninety (90) days prior to the expiration of the
then current contract period that it does not desire that the Agreement
continue. If such notice is given, the Agreement shall terminate at the
end of the then current term.
4. ORDERS AND SHIPMENT AND DELIVERY OF PRODUCTS
4.1 Navarre shall issue orders in writing (which includes facsimile
transmission) or verbally (which must be confirmed in writing.)
4.2 Vendor shall make best efforts to deliver all Products ordered by
Navarre within the time agreed to.
4.3 All Products shall be shipped freight paid, F.O.B. destination.
Navarre's price, shown in Schedule A, includes freight to Navarre's
4.4 Navarre may cancel all or part of any order prior to the date of
shipment with written notice seven (7) working days before Navarre's
requested delivery date.
4.5 Navarre shall have the option to accept or reject any partial shipments
with written or verbal communication to CyberMedia before rejection of
4.6 A packing list showing Navarre's purchase order number, quantity
ordered, quantity shipped and a detailed identification of the Products
must accompany all shipments.
4.7 All Products shall bear a UPC part code (sell code), and all shipping
cartons shall contain a UPC shipping code (ship unit) [UPC number and
bar code.] The UPC numbers and codes on Products and shipping cartons
shall conform to the Uniform Code Council, National Office Products
Association and Retail Industry Standards.
4.8 Navarre has the right to charge back to Vendor costs incurred by
Navarre or its Dealers due to missing, defective or inaccurate UPC
codes. In no event shall such charges exceed two percent of the
suggested retail price of the Products.
5. PURCHASE PRICE
5.1 Vendor represents and warrants that the price, discounts, payment terms
and return and other provisions set forth with respect to any Product
shall never be less favorable to Navarre than those made available by
Vendor to any similar distributors of such Product. Vendor agrees that
if such a sale occurs, Vendors will offer to Navarre all the same terms
and conditions, taken as whole.
5.2 The Navarre price and the current suggest retail list price for each
Product manufactured or marketed by Vendor is shown on Exhibit "A".
Navarre has the option to add any or all future English language retail
products manufactured or marketed by Vendor. The Navarre price and the
suggested retail price for any Product may only be increased by thirty
(30) days advance
written notice given by Vendor to Navarre. Vendor will notify Navarre
in writing of the availability of new products or new versions of
5.3 Any announced or published price decrease by Vendor shall apply to
Navarre orders shipped on or after the date the price decrease was
announced or published. In addition, Vendor shall credit to Navarre's
account an amount equal to the difference between the old cost to
Navarre for a Product and the new cost, times the total number of units
of the Product held in Navarre's inventory excluding-, Navarre's
Dealers. A similar credit shall be made available for all affected
Product held by Navarre's Dealers at the time of a price decrease@
Vendor shall cooperate with Navarre to implement the credit for Dealer
stocks of Product affected by a price decrease. Navarre agrees to
track, and keep Vendor informed, of Navarre's inventory and Product
held by Navarre's Dealers at all times, failing which, such credit's
shall not be made.
On or after the date of shipment, Vendor shall invoice Navarre for the purchase
of Product. All amounts specified in any net invoice shall be paid by Navarre
within forty-five (45) days from the date of receipt of the Products. Navarre
shall be granted a three (30/o) percent discount on pre-paid purchases and/or
C.O.D. purchases. Navarre shall have the option to deduct from invoices due
Vendor any credits or money due Navarre from Vendor with prior approval by
Vendor. In case there is a balance due Navarre, Vendor shall issue a check to
Navarre within sixty (60) working days for the credit balance.
7. STOCK BALANCING, RETURNS, PRODUCT RECALLS AND CREDITS
7.1 Navarre may return for credit to Vendor any unit of a Product which, in
the opinion of Navarre, is defective in material or workmanship, is
overstocked or has been outdated by the release of a new version. Upon
receipt of such Product, Vendor shall credit Navarre's account with the
amount originally paid for the Product. All transportation charges
incurred with respect to defective Products or recalled Product shall
be paid by Vendor. Navarre shall pay transportation charges for other
7.2 Credits for products returns, advertising allowances or other credits
provided for by this Agreement will be handled by the issuance of
charge backs by Navarre, and the issuance of a credit memo by Vendor.
8. WARRANTIES, EXCLUSION OF CONSEQUENTIAL DAMAGES
Except as provided in Section 9 hereof, neither parry shall, under any
circumstances, be liable to the other for consequential, incidental, indirect or
special damages arising out of or related to this Agreement or the transactions
contemplated herein, even if such party has been appraised of the likelihood of
such damages occurring.
Vendor shall be solely responsible for the design, development, supply,
production and performance of the Products. Vendor agrees to indemnify and hold
Navarre harmless from and against any claim, loss, damage, expense or liability
(including legal fees and costs) that may result, in whole or in part, from:
(a) Any infringement, or any claim of infringement of any patent,
trademark, copyright, trade secret or other proprietary right
with respect to the Products.
(b) Any warranty or product liability claim with respect to the
(c) Vendor represents and warrants that it has and will maintain
during the term of this Agreement sufficient insurance
coverage, to enable it to meet its obligations under this
10.1 Navarre shall have the right to utilize Vendor's trade name and any
trademarks and service marks associated with the Products to identify
the origin of the Products in advertising and promotional materials.
With respect to Products made by a third party, Vendor shall ensure
that Navarre has the right to use the third party's trademarks and
service marks associated with the Products in Navarre's advertising and
promotional materials. Navarre will follow established trademark
guidelines of Vendor or such third party.
10.2 Vendor shall support Navarre and Navarre's Dealers with advertising,
marketing and promotional activities. As a part of these activities,
Vendor shall implement cooperative advertising and market development
programs that Navarre and its Dealers can participate in.
11.1 Either party may terminate this Agreement with or without cause with
thirty (30) days written notice. In the event of a material breach of
this Agreement, the party not in breach, may terminate the Agreement
after the failure of the other party to cure such breach within thirty
(30) days of written notification to cure.
11.2 Upon expiration or termination of this Agreement, Navarre shall have
the right, for 120 days after the termination, to return to Vendor all
or a portion of the Products in Navarre's inventory. Vendor agrees to
repurchase any such returned Products at the prices paid for them by
Navarre less any applied credits and discounts.
12.1 This Agreement shall be governed by the laws of the state of Minnesota.
Any dispute arising out of this Agreement shall be brought and
prosecuted in a court within Hennepin County Minnesota. For this
purpose, Vendor appoints the Secretary of State of Minnesota as its
agent for service of process.
12.2 This Agreement shall not be assignable by either party except in
connection with a merger or acquisition.
12.3 This Agreement supersedes all prior oral or written proposals and
communications between the parties related to this Agreement, and shall
not be modified, rescinded, waived or otherwise changed except with the
written consent of the parties.
12.4 Each party confirms that no inducements, promises or representations,
not written herein, caused it to enter into this Agreement.
12.5 Navarre shall have the option to deduct from invoices due Vendor any
credits or money due Navarre from Vendor, with prior written approval.
12.6 Neither party to this Agreement is the employee, agent or legal
representative of the other for any purpose whatsoever.
The parties, by the actions of their authorized representatives, have executed
this Agreement, including the attached Schedule A, as of the date first
CYBERMEDIA NAVARRE CORPORATION
/s/ Unni Warrier Illegible
President Executive Vice President
to DISTRIBUTION AGREEMENT OF November 8, 1995
Between NAVARRE CORPORATION and CYBERMEDIA
PRODUCT NAME UPC NUMBER PRICE NAVARRE-PRICE*
1. First Aid for Windows 796244010201 $59.95 $[ * ]
2. PC 911 Ver. 2 796244020200 $39.95 $[ * ]
3. First Aid PC 911 Bundle 796244010096 $99.95 $[ * ]
4. $ $
------------------------- ------------ ----- -----
5. $ $
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6. $ $
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Navarre will be given a [ * ] discount and CyberMedia will receive a monthly
advertisement in Navarre's price book, issued as a credit, for the performance
of Value Added Services for retail accounts for which Navarre provides at least
two of the following services: 1) Advertising co-op assistance. Maintain and
administer co-op fund accrual amounts; 2) E.D.I. Maintain active electronic data
interchange functions; 3) MixAssistance. Manage full product mix selection and
make all mix decisions for retail accounts; 4) Pre-Ticketing. Provide and affix
retailers' price tags; and 5) Planogramming. Design and development of store
Navarre may be given a discount, issued as a credit for sales to those retail
accounts to which Navarre provides a full racking service. Racking service means
monthly, instore personnel providing physical inventory management. Such
services and discounts have to be approved in writing by the Vendor.
*Show volume discounts and minimum order quantities here.
Please Sign this Page
/s/ Unni Warrier Illegible
CYBERMEDIA NAVARRE CORPORATION
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
American Software and Hardware