U.S. Agreement for Supplies Resellers – Hewlett-Packard Co. and Miami Computer Supply Inc.
HEWLETT - PACKARD
U.S. AGREEMENT FOR SUPPLIES RESELLERS
TABLE OF CONTENTS
U.S. RESELLER CHANNEL AGREEMENT
1. APPOINTMENT
2. STATUS CHANGE
3. PRICES
4. PAYMENT
5. ORDERS; SHIPMENTS; CANCELLATIONS AND CHANGES
6. PRICE ADJUSTMENTS; PRICE PROTECTION
7. STOCK ADJUSTMENTS
8. DEFECTIVE UNITS
9. USER WARRANTY
10. LIMITATION OF REMEDIES AND LIABILITY
11. RELATIONSHIP
12. RESELLER RECORD-KEEPING
13. TRADEMARK
14. LICENSING
15. PATENT INDEMNITY
16. TERMINATION
17. AMENDMENT
18. GENERAL CONDITIONS
19. ADDENDA
20. STATEMENT OF OWNERSHIP
21. AUTHORIZED SIGNATURES
U.S. SUPPLIES RESELLER ADDENDUM
1. APPOINTMENT
2. VOLUME COMMITMENT LEVELS
3. RESELLER ORDER MILESTONES
4. APPROVED LOCATIONS
5. RESELLER SALES
6. RESELLER REQUIREMENTS
A. INVENTORY
B. ADVERTISING
C. SALES FORCE
D. TRAINING
E. PRIMARY CONTACT
F. NEW PRODUCT INTRODUCTIONS
7. RESELLER PROGRAMS
8. EXHIBITS
9. AUTHORIZED SIGNATURES
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HEWLETT - PACKARD
Miami Computer Supply, Inc. 52GCX
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Company Name Agreement #
3884 Indian Ripple Road
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Address
Dayton OH 45440 (513) 429-5211
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City State Zip Code Telephone #
1. APPOINTMENT
A. Hewlett-Packard Company ("HP") appoints the reseller named above
("Reseller") as an authorized, non-exclusive reseller for the HP
Personal Computer Products ("HP Products") which HP has approved
Reseller to market listed on one or more HP Product Exhibits ("Product
Exhibits") specified in the Addenda subject to the terms set forth in
this Agreement and in the Addenda, for the period from the effective
date indicated below through the date specified in the Addenda.
Reseller accepts this appointment on these terms.
B. Reseller's approved locations are specified in the Addenda. All
Reseller's sales, advertising and promotional activities for HP
Products must be conducted from these locations.
C. Reseller will conduct business relating to HP Products only in the
name(s) specified in this Agreement.
2. STATUS CHANGE
A. If a Reseller wishes to:
1) Change its name or that for any approved location;
2) Add or close an approved location;
3) Undergo a merger, acquisition, consolidation or other reorganization
with the result that any entity controls 20% or more of Reseller's
capital stock of assets after such transaction;
4) Undergo a significant change in control or management of Reseller
operations;
then Reseller shall notify HP in writing prior to the intended date
of change. HP will promptly notify Reseller in writing of its
approval or disapproval of the proposed change.
B. HP must approve proposed Reseller changes prior to any obligation of HP
to perform under this Agreement with Reseller as changed.
3. PRICES
A. HP's corporate price lists are internal data basis indicating current
list prices for HP Products ("list prices"). HP reserves the right to
change list prices upon reasonable notice to Reseller. If Reseller is
unsure of the list price to use in calculating net Reseller price for
any HP Product, Reseller should contact its HP sales representative.
B. Net Reseller price for HP Products purchased under this Agreement will
be the list price at the time of Reseller's orders, less the discounts
based on Reseller's volume commitments as specified in the Product
Exhibits.
C. Net Reseller price includes transportation arranged by HP. HP reserves
the right to charge Reseller for any special routing, handling or
insurance requested by Reseller. Orders shipped special routing shall be
F.O.B. Origin. Requests for proof of delivery are subject to limitations
and service charges.
D. Net Reseller price does not include State and local taxes. HP will
invoice Reseller for these taxes, based on point of delivery, unless the
appropriate resale exemption certificates are on file at HP's
order-entry point, or unless HP agrees the sale is otherwise exempt.
4. PAYMENT
A. Reseller will pay all invoices in full within 30 days after date of
invoice unless other terms are specified in its HP flooring agreement.
HP reserves the right to specify Cash in Advance or other terms for
credit reasons.
B. Claims for adjustment of any invoice will be waived if Reseller fails
to present them within 90 days from date of HP invoice. No claims,
credits or offsets may be deducted from any invoice.
5. ORDERS; SHIPMENTS; CANCELLATIONS AND CHANGES
A. Reseller will comply with the minimum order, release and ship-to
requirements specified in the Product Exhibits or otherwise prescribed
by HP.
B. HP will honor written and telephone orders from Reseller's approved
locations. Reseller is responsible for ensuring that only authorized
employees place, change or delete orders.
C. Reseller may request shipment up to 90 days after order date.
D. Shipments are subject to availability. HP reserves the right to schedule
and re-schedule any order, at HP's discretion, and to decline any order
for credit reasons or because the order specifies an unreasonably large
quantity or makes an unreasonable shipment request.
E. Reseller may cancel a shipment or request changes in a scheduled
shipment date at no charge up to 5 working days before scheduled
shipment. Any later cancellation or change will be subject to a charge
of 5% of the shipment's list price value. If in transit, it will also be
subject to applicable freight charges.
F. HP will use reasonable efforts to meet any scheduled shipment date.
However, HP will not be liable for delay in meeting a scheduled shipment
date for any reason. If HP Products are in short supply, HP will
allocate them equitably, at HP's discretion.
G. HP will ship HP Products only to approved locations. Business conducted
at each location approved by HP must be greater than 50% owned by
Reseller. An exception will be made where a Product Exhibit indicates
drop-shipment is available for a specific HP Product; drop-shipment for
such products will be subject to any limitations prescribed by HP.
H. Reseller must meet additional requirements to be eligible to order
certain HP Products ("Qualified Distribution Products") as specified on
the Product Exhibits.
I. Title to HP Products and risk of loss and damage will pass to Reseller
F.O.B. Destination.
J. HP may, from time to time, offer Reseller certain HP Products on special
promotional terms or to clear obsolescent, used or refurbished units.
All such purchases may be subject to discounts different from those
shown in the Product Exhibits; they may not, in some cases, count
towards attainment of Reseller's volume level; they may not be eligible
for promotional allowance funds and will not be eligible for price
protection or stock adjustment. With these exceptions, Reseller's
purchases in response to these offers are subject to the terms set forth
in this Agreement.
6. PRICE ADJUSTMENTS; PRICE PROTECTION
A. If HP raises list prices, HP will bill based on the old, lower price
for orders placed by Reseller within one month after the effective date
of the increase. Limited quantity restrictions may apply.
B. If HP reduces list prices, HP will bill based on the new, lower price
for HP Products shipped on or after the effective date of the reduction.
C. HP Products eligible for price protection are so designated on each
Product Exhibit. If HP reduces list prices, HP will grant Reseller a
price protection credit calculated by one of the two following methods
(and HP will decide at its discretion which method will be used):
1) The credit will equal the total reduction in net Reseller price for
eligible products in Reseller's inventory and in transit to Reseller,
using a verification process determined by HP.
2) The credit will equal 100% of the total reduction in net Reseller
price for eligible products shipped within one month before the
effective date of the reduction, or 75% of the reduction for eligible
products shipped within two months before that date, whichever is
greater.
D. HP may require that Reseller accumulate a minimum credit of $200 in a
particular month before HP extends price protection to Reseller for that
month.
7. STOCK ADJUSTMENTS
A. HP Products that may be eligible for stock adjustment are so designated
on each Product Exhibit. To be eligible for stock adjustment at the time
of return, such products must still be listed on HP's then-current
Product Exhibits, in their unopened, original packaging, and marketable
as new merchandise. Items not eligible or marketable as new will be
returned at Reseller's expense.
B. Products returned for stock adjustment are subject to a restocking
charge. The restocking charge will be as indicated on each Product
Exhibit. The minimum charge for any return will be $50.
C. Eligible HP products may be returned for stock adjustment in one
consolidated shipment from each approved location, freight prepaid, once
each month during the term of this Agreement. The return may equal up to
5% of HP shipments during the previous quarter. Quarters will be
calculated as follows:
November through January, February through April, May through July, and
August through October. Reseller must purchase new HP Products of equal
or greater value for immediate shipment at the time of the return.
D. Reseller must obtain a Notice of Return number (NOR) for each shipment
of hardware and a separate NOR for each shipment of software returned
for stock adjustment. If a NOR does not appear on the outside of all
boxes returned to HP, the shipment will be ineligible for stock adjust-
ment and will be returned to Reseller at Reseller's expense.
E. Reseller will receive a credit for eligible HP Products returned for
stock adjustment at the net Reseller price in effect when HP receives
them, less the return charges indicated above and any promotional
discounts.
8. DEFECTIVE UNITS
A. Reseller and HP agree that the procedure provided below for return and
repair, replacement or credit for defective units will be Reseller's
exclusive remedy for any claim relating to any alleged defect or
nonconformity in HP Products.
B. HP will repair, replace or provide credit to Reseller for any HP
Product found defective by Reseller within 180 days of its shipment to
Reseller and prior to its sale to the end-user customer.
1) Unless HP gives other instructions, the defective unit will be
returned to HP freight collect. Reseller must notify HP that the
unit is being returned and must obtain a Notice of Return number
(NOR). If a NOR does not appear on the outside of all boxes returned
to HP, the shipment will be returned to Reseller at Reseller's
expense.
2) HP may inspect the unit to verify that it is eligible for repair,
replacement or credit. Such eligibility will be based solely on
whether the unit is in fact defective and whether the claim is
timely, and HP's approval will not be unreasonably withheld.
3) HP will be entitled to determine at its discretion whether to
repair, replace or provide credit for the defective unit.
4) HP will not repair, replace or provide credit for units damaged
from abuse or misuse (including improper storage), attempted repair
by an unauthorized service center or repossession. Reseller will
reimburse HP for freight for such units, or where no defects are
found.
5) Units repaired by local HP repair personnel may be repaired with
remanufactured parts.
9. USER WARRANTY
A. HP Products covered by a User Warranty are so designated
on each Product Exhibit, and copies of the User Warranty will be
supplied with these products. The User Warranty will be supplied with
these products. The User Warranty runs in favor of the ultimate user of
the product. The User Warranty period begins on the User's date of
purchase or the first day of rental by a Reseller. HP may require that
Reseller provide proof of purchase by the end-user. The User Warranty is
the only warranty covering any HP Product sold under this Agreement.
B. Some newly manufactured products purchased hereunder may contain
selected remanufactured parts equivalent to new in performance.
C. NO OTHER WARRANTY IS EXPRESSED OR IMPLIED. HP SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
10. LIMITATION OF REMEDIES AND LIABILITY
A. THE REMEDIES PROVIDED IN THIS AGREEMENT, INCLUDING THE PROCEDURE FOR
RETURN OF DEFECTIVE GOODS, ARE RESELLER'S SOLE AND EXCLUSIVE REMEDIES.
HP WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY.
B. The foregoing limitation of liability will not apply in the event that
any HP Product sold hereunder is determined by a court of competent
jurisdiction to be defective and to have directly caused bodily injury,
death or property damage, provided that in no event will HP's liability
for property damage exceed the greater of $50,000 or the purchase price
of specific product that caused such damage.
11. RELATIONSHIP
A. Reseller's relationship to HP will be that of an independent contractor
engaged in purchasing HP Products for resale to Reseller's customers.
Reseller and its employees are not agents or legal representatives of HP
for any purpose and have no authority to act for, bind or commit HP.
Reseller and HP agree that this Agreement does not establish a
franchise, joint venture or partnership.
B. Any commitment made by Reseller to its customers with respect to
quantities, delivery, modifications, interfacing capability or
suitability will be Reseller's sole responsibility unless prior written
approval is obtained from HP. Reseller has no authority to modify the
User Warranty or to make any commitment on HP's behalf other than
options outlined by HP, and Reseller will indemnify HP from liability
for any such modified warranty or other commitment by Reseller.
C. List prices are suggested prices for resale to Reseller's customers and
a basis for calculating net Reseller price. Reseller has the right to
determine its own resale prices, and no HP representative will require
that any particular price be charged by Reseller or grant or withhold
any treatment to Reseller based on Reseller's pricing policies. Reseller
agrees that it will promptly report any effort by HP personnel to
interfere with its pricing policies directly to an HP officer or
manager.
D. This Agreement applies only to the HP Products listed on the Product
Exhibits (U.S. versions only). Reseller acknowledges that HP may market
other products, including products in competition with those listed on
the Product Exhibits without making them available to Reseller. HP
reserves the right to advertise, promote and sell any product in
competition with Reseller as HP deems appropriate.
12. RESELLER RECORD-KEEPING
A. For purposes of contract compliance verification, product safety
information, corrections for operational problems and the like, Reseller
is required to maintain records of customer purchases of printers,
plotters, scanners and computers for one year. Records must include
customer name, address, phone number, serial number and date of sale of
the above products.
B. At HP's discretion, and upon notice to Reseller, HP or HP's designate
will be given on-site access to Reseller's customer records, inventory
records and other books and records of account as necessary to verify
and audit Reseller's compliance with the terms of this Agreement.
C. HP may require Reseller to provide HP or HP's designate with sales
performance and inventory data in a format specified by HP (including,
but not limited to, such information as total units of selected HP
products sold and held in inventory by month for each authorized
location).
13. TRADEMARK
A. From time to time, HP may designate one or more HP trademarks as
available for Reseller's use and will provide standards for that use. HP
authorizes Reseller to use these designated trademarks.
1) Reseller will use the designated trademarks in accordance with these
standards solely in advertising and promoting HP Products, in good
taste and in a manner that preserves their value and HP's rights in
them.
2) Reseller will not use any HP trademark or trade name in a way that
implies Reseller is an agency or branch of HP. Reseller will
immediately change or discontinue any use as requested by HP.
3) Reseller has no right, title or interest in any HP trademark or
trade name and is not authorized to use any HP trademark or trade
name other than the designated trademarks. Any rights in any HP
trademark or trade name acquired through Reseller's use belong solely
to HP.
14. LICENSING
A. Unless prior written consent is obtained from HP, Reseller will not copy
or modify any materials supplied under this Agreement, except that
software materials may be copied for archival purposes to replace a
defective copy or for program error verification. Reseller will not
remove, omit or alter any label or copyright notice on or in these
materials.
B. Reseller is granted the right to distribute software materials supplied
by HP in accordance with the license terms supplied with these
materials. Reseller may also use the materals for demonstration purposes
in accordance with those license terms.
1) Where an end-user agreement is supplied with the software, the user
must sign the agreement or indicate acceptance by opening the media
package in order to obtain a license to use it. Use of the software
will be subject to the terms of the agreement.
2) Where the software is designated as confidential or a trade secret in
its license terms, Reseller will safeguard the software in accordance
with industry standards and applicable law, using the same degree of
care to prevent unauthorized disclosure as Reseller uses with its own
trade secrets and those of other suppliers.
15. PATENT INDEMNITY
A. HP will, except as otherwise provided below, defend or settle any claim
made or suit or proceeding brought against Reseller so far as it is
based on an allegation that any HP Product sold under this Agreement
infringes a U.S. patent, trademark or copyright, provided HP is notified
promptly in writing and given information, assistance and sole authority
to defend or settle same at HP's expense; and HP will pay all damages
and costs finally awarded therein against Reseller. If any such HP
Product is held to infringe and its use is enjoined, or in case of a
settlement, HP will have the option at HP's expense to replace same with
a non-infringing product; or modify same so it becomes non-infringing
product; or modify same so it becomes non-infringing; or repurchase same
from Reseller at net Reseller price, provided it is new and in its
unopened, original packaging.
B. The foregoing states HP's entire liability for intellectual property
infringement by products furnished under this Agrement.
16. TERMINATION
A. Either party may terminate this Agrement without cause at any time upon
30 days' written notice, or with cause at any time upon 15 days' written
notice.
B. If either party gives the other notice of termination or advises the
other of its intent not to renew this Agrement, HP may require that
Reseller pay Cash in Advance for additional shipments during the
remaining term hereof, regardless of Reseller's previous credit status,
and may withhold all such shipments until Reseller pays its previous
balance.
C. Upon termination or expiration of this Agreement for any reason,
Reseller will immediately cease to be an authorized HP Reseller and will
refrain from representing itself as such and from using any HP trademark
or trade name.
D. Upon any such termination or expiration, either party may require that
HP purchase any HP Products sold to Reseller by HP under this Agreement
that are on HP's then-current Product Exhibits, in their unopened,
original packaging and marketable as new merchandise. HP will pay
Reseller HP's then-current net Reseller price or Reseller's original
purchase price for such products, whichever is lower. Reseller should
contact its HP sales representative for information about the items
eligible for repurchase and instructions for their return at HP's
expense.
E. The indemnities provided in this Agreement will survive
termination or expiration hereof.
17. AMENDMENT
A. HP may, from time to time, add products to or delete them from the
Products Exhibits, change list prices or discounts or implement special
promotional programs, at HP's discretion, after reasonable notice to
Reseller.
B. HP may, from time to time, give Reseller written notice of amendments to
this Agreement. Any such amendment will automatically become a part of
this Agreement on the effective date specified in the notice.
C. Each party acknowledges that the other has made no commitments regarding
duration or renewal of this Agreement beyond those expressly stated
herein.
18. GENERAL CONDITIONS
A. Neither party may assign or transfer this Agreement. Any attempted
assignment or transfer will be void.
B. Either party's failure to enforce any provision of this
C. This Agreement and the attached Addenda and associated Product Exhibits
contain the entire and only understanding between the parties relating
to the subject matter hereof. HP hereby gives notice of objection to any
additional or inconsistent terms set forth in any purchase order or
other document issued by Reseller. Except as provided in paragraphs 17A
and 17B, no modification of this Agreement will be binding on either
party unless made in writing and signed by both parties.
D. No U.S. Government procurement regulations will be deemed included
hereunder or binding on either party unless specifically accepted in
writing and signed by both parties.
E. This Agreement will be governed by the laws of the State of California.
19. THE ADDENDA LISTED BELOW ARE ATTACHED TO AND MADE A PART OF THIS AGREEMENT.
____ADDENDUM (U.S. SUPPLIES RESELLER)
____ADDENDUM
20. STATEMENT OF OWNERSHIP
Name of Company:_______________________________________________________________
Form of Organization (e.g. Corporation, General Partnership, etc):_____________
_______________________________________________________________________________
State of Organization:_________________________________________________________
Owners (for publicly held corporations, owners of 20% or more of any class
of shares):
Name: Interest(%):
________________________________________ ___________________________________
________________________________________ ___________________________________
________________________________________ ___________________________________
________________________________________ ___________________________________
________________________________________ ___________________________________
Board of Directors, Officers, Partners:
Name: Title:
________________________________________ ___________________________________
________________________________________ ___________________________________
________________________________________ ___________________________________
________________________________________ ___________________________________
________________________________________ ___________________________________
21. AUTHORIZED SIGNATURES
A. RESELLER
________________________________________________________________________
Authorized Signature
________________________________________________________________________
Type Name
________________________________________________________________________
Title
________________________________________________________________________
Signing Date
B. HEWLETT-PACKARD COMPANY
________________________________________________________________________
Authorized Signature
________________________________________________________________________
Type Name
________________________________________________________________________
Title
________________________________________________________________________
Effective Date
________________________________________________________________________
Expiration Date
Hewlett-Packard Company
5301 Stevens Creek Boulevard
P.O. Box 58059
Santa Clara, California 95052-8059
January 1, 1996
1996 Agreement #: 57AGG
MIAMI COMPUTER SUPPLY, INC.
3884 INDIAN RIPPLE ROAD
DAYTON, OHIO 45440
Customer ICN: 2750
Dear MIAMI COMPUTER SUPPLY, INC.,
In HP's quest to simplify the contracting and negotiating process, your 1996
HP Agreement and Addendum is based substantially on your 1995 Agreement and
Addendum.
In fact, the text of the 1995 Agreement, Addendum and Exhibit L as negotiated
between HP and you is carried forward and repeated in 1996, except for those
modifications indicated in this letter. All other terms and conditions of your
1995 Agreement remain unchanged.
Included with this letter are the new companion documents which form a part of
your 1996 Agreement, the Operations Policy Manual, Product Acquisition and
Resale Categories and Product Exhibits.
Amendments to your U.S. Reseller Agreement:
Section 2.A.3
Status Change: Modify to read as follows:
"Undergo a merger, acquisition, consolidation or other reorganization with the
result that any entity controls 50% or more of Reseller's capital stock or
assets after such transaction; or"
Section 10
Price Adjustments; Price Protection: Deleted and moved to the Operations
Policy Manual (OPM) as modified.
Section 16
Reseller Record Keeping: Modify to read as follows:
"HP or HP's designate will be given prompt access during normal business hours,
either on sight or through other means specified by HP to Reseller's customer
records of account specifically related to HP Products as HP believes are
reasonably necessary to verify and audit Reseller's compliance with this
Agreement".
Amendment to your U.S. Supplies Reseller Addendum:
Section 3.H
Reseller Responsibilities: Deleted and moved as modified to the HP Product
Acquisition and Resale Categories.
Signature Page:
Change effective date to 3/1/96 and the expiration date to 2/28/97.
AUTHORIZED SIGNATURES HEWLETT-PACKARD COMPANY
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Authorized Signature Sue Weatherman, Reseller Contracts Manager
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Typed Name Date
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Title
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Date
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