{"id":42164,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/computer-software-distribution-agreement-navarre-corp-and2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"computer-software-distribution-agreement-navarre-corp-and2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/computer-software-distribution-agreement-navarre-corp-and2.html","title":{"rendered":"Computer Software Distribution Agreement &#8211; Navarre Corp. and Caldera Systems Inc."},"content":{"rendered":"<pre>                      COMPUTER SOFTWARE\n                    DISTRIBUTION AGREEMENT\n\nThis Agreement is made and is effective as of the December 14th day of 1998 by\nand between Navarre Corporation (\"Navarre\") of 7400 49th Avenue North, New\nHope, Minnesota, 55428 and Caldera Systems, Inc. (\"Vendor\") of 240 West Center\nSt. Orem, Utah 84057.\n\nThe Parties have agreed as follows:\n\n1.   DEFINITIONS\n\n1.1  The term \"Product(s)\" shall mean all computer software and hardware, and\nrelated products manufactured or marketed by Vendor during the term of this\nAgreement.\n\n1.2  The term \"Dealer(s)\" shall mean any third party or entity to which Navarre\nmarkets any Products for remarketing.\n\n2.   GRANT OF MARKETING RIGHTS\n\n2.1  Vendor grants to Navarre and Navarre accepts from Vendor the right to\npurchase Products and to market and distribute Products to Customers in the\nUnited States and Canada, unless other territories are approved in writing.\nThis grant is non-exclusive unless otherwise agreed to by the parties.\n\n3.   TERM\n\n3.1  The initial term of this Agreement shall be for a period of one (1) year,\nunless sooner terminated as provided by this Agreement.\n\n3.2  After the initial term, this Agreement shall be automatically renewed for\nsuccessive one (1) year periods, unless either party gives the other written\nnotice at least ninety (90) days prior to the expiration of the then current\ncontract period that it does not desire that the Agreement continue. If such\n   \n\nnotice is given, the Agreement shall terminate at the end of the then current\nterm.\n\n4.   ORDERS AND SHIPMENT AND DELIVERY OF PRODUCTS\n\n4.1  Navarre shall issue orders in writing (which includes facsimile\ntransmission.)\n\n4.2  Vendor shall deliver all products ordered by Navarre within the time\nagreed to.\n\n4.3  All Products shall be shipped freight paid by Vendor, F.O.B. destination.\n\n4.4  Navarre may cancel all or part of any order prior to the date of shipment.\n\n4.5  Navarre shall have the option to accept or reject any partial shipments.\n\n4.6  A packing list showing Navarre's purchase order number, quantity ordered,\nquantity shipped and a detailed identification of the Products must accompany\nall shipments.\n\n4.7  All Products shall bear a UPC part code (sell code), and all shipping\ncartons shall contain a UPC shipping code (ship unit)[UPC number and bar code.]\nThe UPC numbers and codes on Products and shipping cartons shall conform to the\nUniform Code Council, National Office Products Association and Retail Industry\nStandards.\n\n4.8  Navarre has the right to charge back to Vendor costs incurred by Navarre\nor its Customers due to missing, defective or inaccurate UPC codes.\n\n5.   PURCHASE PRICE\n\n5.1  Vendor represents and warrants that the price, discounts, payment terms\nand return provisions set forth with respect to any Product shall never be less\nfavorable to Navarre than those made available by Vendor to any other\npurchasers of such Product. Vendor agrees that if such a sale occurs, Vendor\nwill sell the Product to Navarre at the same terms and reimburse Navarre\nretroactively from the date of such sale for the difference.\n\n5.2  Navarre has the option to add any or all future products manufactured or\nmarketed by Vendor. The Navarre price and the suggested retail price for any\nnew release may only be increased by sixty (60) days advance written notice\ngiven by Vendor to Navarre.\n\n5.3  Any announced or published price decrease by Vendor shall apply to Navarre\norders shipped on or after the date the price decrease was announced or\npublished. In addition, Vendor shall credit to Navarre an amount equal to the\ndifference between the old cost to Navarre for a Product and the new cost, times\nthe total number of units of the Product held in Navarre's inventory, defined as\ncurrent on hand inventory, units sold within five (5) working days of price\nprotection notification, and in-transit returns. A similar credit shall be made\navailable for all affected Product held by Navarre's Customers at the time of a\nprice decrease. Vendor shall cooperate with Navarre to implement the credit for\nDealer stocks of Product affected by a price decrease.\n\n6.   PAYMENT\n\n6.1  On or after the date of shipment, Vendor shall invoice Navarre for the\npurchase of Product. Initial purchase order shall be invoiced to Navarre at net\n[****] days from receipt of goods. Additional purchase orders shall be invoiced\nto Navarre at net sixty (60) days from receipt of goods. Navarre shall have the\noption to withhold payment of up to [****] of any invoice at a reserve against\nfuture returns, debit balances or chargebacks. This reserve will be released\nafter two-hundred forty (240) days from the date of receipt of Products. Navarre\nshall have the option to deduct from invoices due Vendor any credits or money\ndue Navarre from Vendor. In case there is a balance due Navarre, Vendor shall\nissue a check to Navarre within thirty (30) days for the credit balance. In case\nof a disputed account balance, both parties will make good faith effort to\nreconcile account within twenty-one (21) days.\n\n7.   STOCK BALANCING, RETURNS, PRODUCT RECALLS AND CREDITS\n\n7.1  All defective inventory, either identified upon receipt from Vendor, or\ndetermined to be defective when returned from Navarre's customers, will be\nreported to Vendor. Vendor shall advise Navarre regarding the disposition of\ndefective inventory within twenty-one (21) days of return request. Otherwise,\nthe defective inventory will be destroyed. Vendor shall bear all expenses\nregarding the destruction or other disposition of defective inventory and will\nissue an immediate credit to Navarre for the purchase price plus all return\nfreight charges for defective product.\n\n7.2  Navarre may return for full credit up to 100% of all inventory received\nfrom Vendor. Upon receipt of return authorization request, Vendor shall provide\na Return Authorization within seven (7) days of notice. Upon receipt of such\nProduct, Vendor shall credit Navarre's account with the amount originally paid\nfor the Product. Items delisted by Vendor (discontinued and\/or version changes)\nmust be communicated in writing to Navarre. Delisted items will be available for\nreturn with immediate and full credit for a period no less than [****] days.\nReturns to Vendor, FOB Destination.\n\n7.3  Credits for products returns, advertising allowances or other credits\nprovided for by this Agreement will be handled by the issuance of charge backs\nby Navarre, and the issuance of a credit memo by Vendor.\n\n8.   WARRANTIES, EXCLUSION OF CONSEQUENTIAL DAMAGES\n\n8.1  Neither party shall, under any circumstances, be liable to the other for\nconsequential, incidental, indirect or special damages arising out of or\nrelated to this Agreement or the transactions contemplated herein, even if such\nparty has been appraised of the likelihood of such damages occurring. This\nSection 8.1 does not apply to the infringement of intellectual property and\nshall not limit the remedies for such infringement.\n\n\n****CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH\nTHE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN\nREQUESTED WITH RESPECT TO SUCH OMITTED PORTION.\n\n\n8.2  Except as provided otherwise in Section 9, in no event shall the aggregate\nliability of vendor for all claims (Regardless of the form of action, whether\ncontract, warranty, tort, product liability and\/or otherwise) relating to a\nproduct exceed the amount paid to vendor under this agreement for the product.\n\n8.3  Vendor makes no warranty to Navarre not expressly set forth in this\nagreement. All implied warranties, including the implied warranties of\nnoninfringement, merchantability and fitness for a particular purpose are\ndisclaimed and excluded by Vendor.\n\n9.   INDEMNIFICATION\n\n9.1  In the event that a Product infringes any patent, trademark, copyright or\ntrade secret of a third party not affiliated with Navarre, Vendor shall\nindemnify Navarre against any amounts, including damages, attorneys' fees, and\ncost, awarded by a court of competent jurisdiction to the third party because of\nsuch infringement, provide that: (i) Navarre promptly gives notice to Vendor of\nany claim against Navarre alleging such infringement, (ii) Navarre allows Vendor\nto control the defense and settlement of such claim, (iii) Navarre fully\ncooperates with Vendor in connection with the defense and settlement of such\nclaim, and (iv) if requested by Vendor, Navarre ceases all use, distribution and\nsale of the infringing Product and returns all infringing Product units on hand\nto vendor. If Navarre is enjoined from continued sale of any infringing Product\nor if Navarre ceases sale of any Product at the request of Vendor under (iv)\nabove, then Vendor shall (at its expense and option): (a) obtain the right for\nNavarre to continue to sell the infringing Product, (b) modify the infringing\nProduct to eliminate the infringement, (c) provide substitute noninfringing\nProduct to Navarre under this Agreement, or (d) refund to Navarre that the\namount paid under this Agreement for the infringing Product upon its return to\nVendor. Vendor has no other obligation or liability in the event of\ninfringement. Vendor has no obligation of indemnification or to defend or hold\nharmless relating to infringement. Vendor shall not be liable for any costs or\nexpenses incurred without its prior written authorization. Vendor shall have no\nobligation of indemnification or any liability if the infringement is based upon\n(a) any altered, charged or modified form of the Product not made by Vendor, or\n(b) the Product in combination with anything not provided by Vendor, or (c) any\nprocess in which the Product is used in a manner not contemplated by the\nProduct's documentation or is used together with anything not provided by\nVendor, or (d) the laws of any country other than the United States of America\nor its states.\n\n9.2  Navarre's Liability -- If Navarre modifies the Product or its packaging\nand such modification results in a claim, suit, or proceeding brought against\nthe Vendor on the issue of infringement of any patent, trademark, copyright, or\ntrade secret, Navarre shall indemnify Vendor against and defend and hold Vendor\nharmless from any such claim, suit, or processing.\n\n10.   ADVERTISING\n \n10.1  Navarre shall have the right to utilize Vendor's trade name and any\ntrademarks and service marks associated with the Products to identify the\norigin of the Products in advertising and promotional materials. With respect\nto Products made by a third party, Vendor shall ensure that Navarre has the\nright to use the third party's trademarks and service marks associated with the\nProducts in Navarre's advertising and promotional materials.\n\n10.2  Vendor shall support Navarre and Navarre's Customers with advertising,\nmarketing and promotional activities. As a part of these activities, Vendor\nshall implement cooperative advertising and market development programs that\nNavarre and its Customers can participate in.\n\n10.3  Vendor agrees that it will provide support to Navarre for its advertising,\nmarketing and promotional activities. This support can be in the form of ad\nproduction assistance, catalog direct mail programs, shows, advertising in\nregional or national trade and\/or consumer publications, and sales training\ndays. Vendor shall make available an amount equal to [****] percent of the total\ndollar amount Navarre has purchased from Vendor, to be held in reserve for use\nin Navarre's advertising and marketing programs described in Exhibit \"B\". Funds\nwill only be applied upon Vendor's prior approval on a case-by-case basis.\nParticipation in any Navarre advertising, marketing or promotional activity\nwhich exceeds [****] percent of the total dollar amount Navarre has purchased\nfrom Vendor will be charged back monthly to the Vendor, and Vendor will issue a\ncredit memo for these costs.\n\n10.4  All cooperative advertising and market development funds (MDF) charges\nfor product ordered through Navarre must be authorized in writing prior to\nplacement. No verbal commitments will be accepted. In the event that such\nCooperative Advertising and\/or Market Development Fund expenditure would cause\nNavarre's account to move to a debit balance, Navarre reserves the right to\nrequire Vendor to pay for these expenditures in advance. Claims for advertising\nand market development expenditure will be made by charge backs to the Vendor,\nand Vendor will issue a credit memo for these costs.\n\n11.   TERMINATION\n\n11.1  Either party may terminate this Agreement not less than sixty (60) days\nafter written notice in the event of a material breach by the other party, and\nthe failure of such other party to cure such breach within thirty (30) days of\nsuch notification.\n\n11.2  Upon expiration or termination of this Agreement, Navarre shall have the\nright, for one-hundred twenty (120) days after the termination, to return to\nVendor all or portion of the Products in Navarre's inventory. Vendor agrees to\nrepurchase any such returned Products at the prices paid for them by Navarre.\n\n\n****CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH\nTHE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN\nREQUESTED WITH RESPECT TO SUCH OMITTED PORTION.\n\n\n\n\n11.3     Sections 8, 9 and 10.1 shall survive the expiration or termination of\n         this Agreement.\n\n12.      MISCELLANEOUS\n\n12.1     This agreement shall be governed by the laws of the state of Minnesota.\nAny dispute arising out of this Agreement shall be brought and prosecuted in a\ncourt within Hennepin County Minnesota. For this purpose, Vendor appoints the\nSecretary of State of Minnesota as its agent for service of process.\n\n12.2     This Agreement shall not be assignable by either party, except that\nVendor may assign this Agreement to any person or entity who acquires Vendor's\nintellectual property in the  products.\n\n12.3     This Agreement supersedes all prior oral or written proposals and\ncommunications between the parties related to this Agreement, and shall not be\nmodified, rescinded, waived or otherwise changed except with the written\nconsent of the parties.\n\n12.4     Each party confirms that no inducements, promises or representations,\nnot written herein, caused it to enter into this Agreement.\n\n12.5     Notwithstanding anything in this Agreement to the contrary:\n\n(1)      The Products are computer software and all use and rights thereto are\nsubject to any governed by the license agreements included by Vendor in or with\nthe Products.\n\n(2)      To the extent they are included in any Product, Linux and any other\ngeneral public license software to which Vendor has rights under the GNU General\nPublic License shall be governed by such GNU General Public License, including,\nwithout limitation the \"No Warranty\" provisions of the GNU General Public\nLicense - GNU General Public License Version 2, June 1991. Vendor does not own\nLinux or such general public license software and makes no warranty or promise\nto indemnify with respect thereto.\n\n(3)      Navarre shall comply with all applicable laws and regulations,\nincluding, without limitation, U.S. export laws and regulations.\n\n(4)      No purchase order or other document submitted by Navarre to Vendor will\nalter any of the terms of this agreement.\n\n12.6     Neither party to this Agreement is the employee, agent or legal\nrepresentative of the other for any purpose whatsoever.\n\nThe parties, by the actions of their authorized representatives, have executed\nthis\n\nAgreement, including the attached Exhibit A, as of the date first mentioned\nabove.\n\nVENDOR                                  NAVARRE CORPORATION\n\n\/s\/ RANSOM H. LOVE                      \/s\/ VICE PRESIDENT\/GENERAL MANAGER\n-----------------------------------     -----------------------------------\nBy                                      By\n\nPresident &amp; CEO                         Vice President\/General Manager\n-----------------------------------     -----------------------------------\nTitle                                   Title\n\n12\/15\/98                                12\/15\/98\n-----------------------------------     -----------------------------------\nDate                                    Date\n\n                                                                     EXHIBIT \"A\"\n\n     to DISTRIBUTION AGREEMENT OF     12\/15\/98\n                                   --------------------\n                                      (Date)\n\nBetween NAVARRE CORPORATION and   Caldera Systems, Inc.\n                                 --------------------------\n                                       (Vendor)\n\nADDITIONAL SERVICE COMMITMENTS\n\n*Show volume discounts and minimum order quantities here.\n\nTITLES COVERED UNDER THIS AGREEMENT\n\n\n\n\n     Product Name UPC Number       MRP Price      Navarre Price\n--------------------------------   ---------      -------------\n                                            \n1. Open Linux 1.3 (761480502308)    [****]        [****]\n               $20 mail in rebate\n\n2.                                   $            $\n\n3.                                   $            $\n\n4.                                   $            $\n\n5.                                   $            $\n\n\n\nThe above program (5% DFI, Deduct from Invoice) applies to all current and\nfuture retail products, published or distributed by the vendor, during the\nterms of this agreement.\n\nSet up sheets should be attached to this agreement.\n\nPlease Sign this Page\n\n\/s\/ RANSOM H. LOVE                      \/s\/ VICE PRESIDENT\/GENERAL MANAGER\n-----------------------------------     ----------------------------------------\nVENDOR                                  NAVARRE\n\n12\/15\/98                                12\/15\/98\n-----------------------------------     ----------------------------------------\nDATE                                    DATE\n\n\n****CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH\nTHE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN\nREQUESTED WITH RESPECT TO SUCH OMITTED PORTIONS.\n\nEXHIBIT \"B\"\nNAVARRE MARKETING AND ADVERTISING PROGRAMS\n\n1.      Computer Retail Week (Industry Trade Publication)\n        Bi-Monthly full page advertisement that features ten software titles at\n$2,500 per title. (Circulation approximately 40,000)\n\n2.      USA Today\nFull page, black and white, national advertisement featuring a major retailer.\nThe ad is featured in the Lifestyles section on the last Thursday of the month\nincludes approximately twenty software titles at $5,000 per title. (Circulation\napproximately 6 million)\n\n3.      Sales Training\nAn opportunity to meet one-on-one with each of Navarre's account executives and\nformulate sales strategies. Second Tuesday of every month. Cost $3,000.\n\n4.      New Release Report\nMonthly resource mailed to all retail software buyers and executives on a\nnational basis includes AA titles and new releases by category, publisher, title\nand release date. $1,000 per title per 1\/4 page 4-color advertisement.\n\n5.      Spread The Bytes\nTwo versions of a quarterly demo CD-ROM. One is received by over 3,000 stores\nnationwide and the other is customized for a major retailer and sold to\nconsumers. $3,000 for the first title and $2,000 for each subsequent title.\n\n6.      Interchange\nFour day annual symposium that brings together publishers and retailers from\nacross the country to lock in holiday merchandising, marketing, and promotion\nplans. Cost determined annually.\n\n7.      Other\nNavarre may add new programs from time-to-time which Vendor will have the option\nof participating in.\n\n*Prices quoted are subject to change with 30 day advance notification\n\nmasters\\distrib February 19, 1998\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993,8306],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9619],"class_list":["post-42164","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-inc","corporate_contracts_companies-navarre-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42164","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42164"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42164"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42164"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42164"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}