{"id":42256,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/domestic-distribution-agreement-macromedia-inc-and-ingram.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"domestic-distribution-agreement-macromedia-inc-and-ingram","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/domestic-distribution-agreement-macromedia-inc-and-ingram.html","title":{"rendered":"Domestic Distribution Agreement &#8211; Macromedia Inc. and Ingram Micro Inc."},"content":{"rendered":"<pre>CONFIDENTIAL TREATMENT REQUESTED\n\nMACROMEDIA\n\nDOMESTIC DISTRIBUTION AGREEMENT\n\nThis Agreement between Macromedia, Inc., a Delaware corporation with principal\noffices at 600 Townsend St., San Francisco, California 94103 (\"Macromedia\") and\nIngram Micro, Inc. (\"Distributor\"), a California corporation, whose address is\n1600 E. St. Andrew Place, P.O. Box 25125, Santa Ana, CA 92799-5125, shall be\neffective as of the date of execution by Macromedia (\"Effective Date\").\n\nIn consideration of the representations, warranties, covenants and agreements\nset forth herein and intending to be mutually bound, the parties hereto agree as\nfollows:\n\n1. DEFINITIONS Capitalized terms shall have the meaning set forth in Exhibit A,\nattached hereto and incorporated herein by this reference.\n\n2.  DISTRIBUTION RIGHTS\n\n         2.1 During the term of this Agreement, Macromedia grants to Distributor\nthe non-exclusive right and license to distribute the Products to Resellers\nlocated in the Territory, as defined on Exhibit A hereto. Pursuant to the terms\nhereof, Macromedia shall sell to Distributor, and Distributor shall purchase\nfrom Macromedia, the Products set forth on Exhibit B hereto ordered by\nDistributor at the Purchase Prices and upon the Payment Terms described below.\n\n         2.2 Macromedia reserves the right at any time to discontinue the\nproduction or distribution of any of its Products, to modify the design of or\nupgrade its Products or any part of its Products and to change its service,\nwarranty, or other policies, upon thirty (30) days written notice to\nDistributor. In accordance with Section 4, Stock Balancing, Distributor may\nreturn, at Macromedia's expense, all or any portion of its own and its\ncustomers' inventory of any modified, upgraded or discontinued Product.\n\n         2.3 Macromedia also reserves the right to add products to or delete\nproducts from Exhibit B upon thirty (30) days written notice to Distributor.\n\n3.  PRICE\n\n         3.1 The current Products, Discounts, and Suggested List Prices are set\nforth on Exhibit B hereto. Macromedia reserves the right to change Exhibit B\nupon thirty (30) days written notice to Distributor.\n\n         3.2 In the event the Purchase Price of any Product is reduced through a\nreduction in the Suggested List Price of such Product, Macromedia will credit to\nDistributor an amount equal to the product of (a) the difference between the new\nPurchase Price and the former Purchase Price for such Product, and (b) the\nnumber of units of such Product then in Distributor's and its customers'\nInventory plus (c) the number of units sold to Resellers thirty (30) days prior\nto the reduction provided that (i) the Resellers are entitled to price\nprotection, and (ii) Distributor can provide evidence, within thirty (30) days\nof notification by Macromedia, that price production has been claimed by the\nResellers for such units. In the event that Macromedia should raise the\nSuggested List Price of any Product, Macromedia will honor each order made or\nmailed by Distributor before such price change becomes effective at the Purchase\nPrice in effect when such order was made or mailed.\n\n         3.3 Payments to Macromedia with respect to all products received by\nDistributor shall be made by Distributor in US dollars, free of withholding,\nwithin thirty (30) days of the date of Macromedia 's invoice. Such payment must\nbe a certified check if any preceding check is returned to Macromedia for\ninsufficient funds.\n\n         3.4 Macromedia's prices do not include any foreign, federal, state or\nlocal sales, use, value added or other taxes, customs duties, or similar tariffs\nand fees which Macromedia may be required to pay or collect upon the delivery of\nthe Products or upon collection of the price. Should any tax or levy be made,\nDistributor agrees to pay such tax or levy and indemnify Macromedia for any\nclaim for such tax or levy demanded. Distributor covenants to Macromedia that\nall Products acquired hereunder will be for redistribution in the ordinary\ncourse of Distributor's business, and Distributor agrees to provide Macromedia\nwith appropriate resale certificate numbers and other documentation satisfactory\nfor the applicable taxing authorities to substantiate any claim of exemption\nfrom any such taxes or fees.\n\n         3.5 Notwithstanding any other provision in this Agreement to the\ncontrary, Distributor shall not be deemed in default if it withholds any\nspecific amount to Macromedia because of a legitimate dispute between the\nparties as to that specific amount, pending the resolution of the disputed\namount.\n\n4. STOCK BALANCING Distributor may return Products to Macromedia, including 100%\nof modified, upgraded or discontinued Products, as follows: (a) Returns shall be\nmade each quarter, at one time in the month immediately following the end of the\nquarter; (b) except as may be \n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        97\n\nagreed by the parties, from time-to-time, returns shall not exceed 20% of the\nprevious quarter's purchases; and (c) returns shall be accepted on a\ndollar-for-dollar reorder basis, as follows: Distributor shall request a Return\nMerchandise Authorization (\"RMA\") number, offering offsetting purchase order(s)\nwith a total value equal to or greater than the aggregate purchase price of the\nProducts to be returned. The offsetting purchase order(s) may include one or\nmore orders already placed and not yet shipped, provided such orders were placed\nin the same month as the RMA request. Upon receipt of the purchase order(s),\nMacromedia shall issue the RMA number, which must accompany the return shipment.\nMacromedia agrees not to ship against the offered purchase order(s) until it has\napproved the RMA. To be eligible for return, Products must be new, unused and in\ntheir original, sealed packaging. However, no return will be authorized by\nMacromedia if, at the time of the requested return, Distributor is in default or\nbreach of any provision of this Agreement, including failure to comply with any\napplicable credit terms or delinquency in any payment to Macromedia, subject to\nDistributor's right of withhold under section 3.5.\n\n5.  ORDERS AND SHIPPING\n\n         5.1 Upon receipt of an order by Distributor, Macromedia shall use\nreasonable efforts to deliver such order to Distributor within ten (10) days of\nthe date of such order. Orders shall be shipped F.O.B. Macromedia in accordance\nwith the Ingram Micro Inc. Vendor Routing Guide, as set forth in Exhibit E,\nwhich may be amended by Distributor from time to time. Distributor shall use its\nbest efforts in placing orders at least four (4) weeks in advance of the\nrequested ship date. Macromedia requests that orders be placed at least four (4)\nweeks in advance of the requested date for shipment but in no event shall any\norder be placed more than ninety (90) days in advance of the requested ship\ndate. All risk of loss or damage to the Products will pass to Distributor upon\ndelivery by Macromedia to the carrier, freight forwarder, or Distributor,\nwhichever occurs first. Macromedia shall ship orders to Distributor at least as\npromptly as Macromedia ships any other orders received at or about the same\ntime. Should orders for Products exceed Macromedia's available inventory,\nMacromedia may allocate its available inventory and make deliveries on a basis\nMacromedia deems equitable, in its sole discretion, and without liability to\nDistributor on account of the method of allocation chosen or its implementation.\nIn any event, Macromedia will not be liable for any damages, direct,\nconsequential, special or otherwise, to Distributor or to any other person for\nfailure to deliver or for any delay or error in delivery of Products.\n\n         5.2 Distributor shall be required to place an initial order, and\npurchase a the quarterly amounts set forth in Exhibit C. All orders for Products\nshall be subject to the criteria set forth in Exhibit C.\n\n         5.3 Macromedia reserves the right to cancel any orders placed by\nDistributor and accepted by Macromedia or to refuse or delay shipment thereof,\nif Distributor (i) fails to make any payment as provided in this Agreement or\nunder the terms of payment set forth in any invoice or otherwise agreed to by\nMacromedia and Distributor, (ii) fails to meet reasonable credit or financial\nrequirements established by Macromedia, including any limitations on allowable\ncredit, or (iii) otherwise fails to comply with the terms and conditions of this\nAgreement. No such cancellation, refusal or delay will be deemed a termination\n(unless Macromedia so advises Distributor) or breach of this Agreement by\nMacromedia.\n\n6. ADVERTISING AND PROMOTION\n\n         6.1 Distributor shall be entitled to participate in Macromedia's\nDevelopment Fund (\"MDF\") Program in accordance with the terms and conditions set\nforth in Exhibit D attached hereto and made a part hereof. Macromedia shall be\nentitled to either cancel or change the terms and conditions of the MDF Program\non thirty (30) days written notice.\n\n         6.2 Macromedia agrees to provide reasonable training and sales\ncollateral materials as needed, and to provide sales training for Distributor's\nstaff, at times mutually agreed upon by Macromedia. In addition, Macromedia\nagrees to provide reasonable units of each Macromedia Product for in-house\ntraining, resources library and technical support use; such units, as well as\nany \"NFR\" units (i.e., Products that may not be resold to end users), may not be\nredistributed for any reason, except for special promotional \"NFR\" units that\nare offered to Distributor in exchange for Distributor's purchase of specified\nProducts.\n\nDistribution of such Product units in violation of the foregoing will constitute\na material breach of this Agreement. When a new Product or new version is\nreleased, units of the new Product or new version will also be provided by\nMacromedia to Distributor.\n\n         6.3 Distributor will provide Macromedia within seven business (7) days\nafter the end of each calendar month, a written or electronic report and\ncomputer media data files (in a format, style and manner approved by Macromedia)\nshowing, for such month, (i) Distributor's shipments of each the Products with\nthe ship-to address, \n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        98\n\nReseller or VAR name, and the quantity and type of Product sold, and ii)\nDistributor's current inventory levels for each of the Products. Non-standard,\nsubsection (i), point of sale (POS) data will be subject to a separate\nnon-disclosure agreement attached hereto as Exhibit F.\n\n7. ADVANCE NOTICE In the event that Macromedia shall sell any additional Product\nnot set forth on Exhibit B which is offered by Macromedia through comparable\nwholesale distributors. Macromedia shall make reasonable efforts to notify\nDistributor not less than thirty (30) days in advance of such event and, in any\nevent, at least as quickly as Macromedia notifies any other Distributor.\n\n8. NOTICE Any notices hereunder to be given by either party to the other shall\nbe in writing and sent by certified mail to each party's address as set forth\nabove, with a courtesy copy to the General Counsel, and sent to the attention of\nthe Senior Buyer or Product Manager as applicable if sent to Distributor, and to\nthe attention of the Account Manager Distributor Sales, if sent to Macromedia.\n\n9.  DEFECTIVE PRODUCTS\n\n         9.1 Distributor will accept and will require its Resellers to accept\nthe return of any Product by an enduser due to the enduser's failure to agree to\nthe terms of the Enduser License accompanying such Products, provided that the\ndisk package of such Product is returned unopened. Distributor may also return\nany opened units of defective Product which have been returned by endusers in\naccordance with the warranty set forth in the Enduser License accompanying the\nProduct. Transportation charges for the return of such Products shall be borne\nby Macromedia. Such returns must be accompanied by a purchase order for\nreplacement Products equal in value to the purchase price paid by Distributor\nfor the returned Products. The offsetting purchase order(s) may include one or\nmore orders already placed and not yet shipped, provided such orders were placed\nin the same month as the RMA request.\n\n         9.2 Macromedia provides a limited warranty to end users of the\nProducts. Distributor will make no other warranty on Macromedia's behalf. EXCEPT\nFOR SUCH WARRANTY, THE PRODUCTS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND,\nEITHER EXPRESS OR IMPLIED. MACROMEDIA DOES NOT WARRANT THAT THE FUNCTIONS\nCONTAINED IN THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. MACROMEDIA\nDISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED,\nINCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE\n\n10.  INDEMNIFICATION\n\n         10.1 Indemnification of Distributor. \n\nMacromedia agrees that, if notified promptly in writing and given sole control\nof the defense and all related settlement negotiations, and if Distributor\ncooperates and provides reasonable assistance, Macromedia will defend\nDistributor against any claim based on an allegation that (i) a Product supplied\nhereunder infringes a copyright, trademark, or state trade secret right within\nthe Territory, (ii) a Product supplied hereunder caused property damage or the\ndeath of or a personal injury to, any person, arising out of or resulting in any\nway from any defect in a Product, (iii) Macromedia violated any United States\nlaw, statute or ordinance or any United States governmental or administrative\norder, rule or regulation with regard to the Product or its manufacture,\npossession, use or sale or (iv) arises from Macromedia's acts, omissions or\nmisrepresentations with respect to the Products to the extent that Macromedia\nwould have been found liable by a court if the claim had been made directly\nagainst Macromedia. Macromedia will pay any resulting costs, damages and\nattorneys' fees finally awarded by a court with respect to any such claims.\nDistributor agrees that, if the Products in the inventory of Distributor, or the\noperation thereof, become, or in Macromedia's opinion are likely to become, the\nsubject of such a claim, Distributor will permit Macromedia, at Macromedia's\noption and expense, to, among other things, procure the right for Distributor to\ncontinue marketing and using such Products, or to replace or modify them so that\nthey become noninfringing. If neither of the foregoing alternatives is available\non terms that Macromedia in its sole discretion deems reasonable, Distributor\nwill return such Products on written request from Macromedia. Macromedia will\ngrant Distributor a credit equal to the price paid by Distributor for such\nreturned Products, as adjusted for discounts, returns and credits actually\ngiven, provided that such returned Products are in an undamaged condition.\nMacromedia will have no obligation to Distributor with respect to infringement\nof patents, copyrights, trademarks or trade secrets or other proprietary rights\nbeyond that stated in this Section 10.1\n\n         10.2 Indemnification of Macromedia\n\nDistributor agrees to indemnify and hold harmless Macromedia, its affiliates,\nemployees and agents, against any and all claims and liabilities (including\nreasonable attorney's fees and costs of litigation) arising from \n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        99\n\nDistributor's acts, omissions or misrepresentations, regardless of the form of\naction.\n\n11.      TERM AND TERMINATION\n\n         11.1 Unless this Agreement is terminated as provided below, the rights\nand obligations of Distributor and Macromedia hereunder shall be effective for a\nterm of one year from the effective date and will automatically renew, for\nadditional one-year terms, upon each anniversary of the effective date.\n\n         11.2 Either party hereto may terminate this Agreement upon (a) thirty\n(30) days written notice to the other following any material breach or omission\nby the other with respect to any term, representation, warranty, condition, or\ncovenant hereof and (b) the failure of such other party to cure such breach or\nomission prior to the expiration of such thirty (30) day period, provided that\nin the event Distributor defaults in any payment due Macromedia such notice\nperiod prior to termination will be reduced to ten (10) days.\n\n         11.3 Distributor or Macromedia may terminate this Agreement at will, at\nany time during the term of this Agreement, with or without cause, by written\nnotice given to the other party not less than ninety (90) days prior to the\neffective date of such termination.\n\n         11.4 Upon termination or expiration of this Agreement, Distributor\nshall submit to Macromedia within ten (10) days after the effective date of\ntermination or expiration, a list of all Products in Distributor's inventory. If\nMacromedia terminates this Agreement in accordance with Section 11.3 or if\nDistributor terminates this Agreement in accordance with Section 11.2,\nMacromedia shall repurchase all such Products, if they are in new and original\ncondition. If Distributor terminates this Agreement in accordance with Section\n11.3 or if Macromedia terminates this Agreement in accordance with Section 11.2,\nMacromedia may, at its option, repurchase any such Products, if they are in new\nand original condition. In such case, Macromedia will pay Distributor the actual\nprice Distributor paid for such Products, subtracting any amounts then owing to\nMacromedia.\n\n         11.5 In the event Macromedia issues a notice of termination due to\nDistributor's breach of this Agreement, Macromedia will be entitled to reject\nall or part of any orders received from Distributor after notice but prior to\nthe effective date of termination. In the event a notice of termination is\nissued by either party, Macromedia may limit monthly shipments to Distributor\nduring the notice period to Distributor's average monthly shipments from\nMacromedia during the twelve (12) months prior to the date of notice of\ntermination. Notwithstanding any credit terms made available to Distributor\nprior to the date of a termination notice, any Products shipped thereafter will\nbe paid for by certified or cashier's check prior to shipment. The due dates of\nall outstanding invoices to Distributor for the Products will be accelerated\nautomatically so they become due and payable on the effective date of\ntermination, even if longer terms had been provided previously. All orders or\nportions thereof remaining unshipped as of the effective date of termination\nwill automatically be canceled and any unused MDF will be forfeited.\n\n         11.6 DISTRIBUTOR AND MACROMEDIA EACH WAIVE ANY RIGHT IT MAY HAVE TO\nRECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS\nAGREEMENT IN ACCORDANCE WITH ITS TERMS.\n\n         11.7 The termination or expiration of this Agreement shall not affect\nany rights of either party with respect to any breach of this Agreement, any\nrights under Section 10 (Indemnification) hereof or Distributor's rights to\nmarket and promote Distributor's inventory of Products as provided in Section\n11..4 above. In addition the following Sections shall survive any termination of\nthis Agreement: 3.3, 3.4, 4, 9.1, 9.2, 11.6, 12, 13, 14.6 and 14.8.\n\n12.  LIMITATION OF LIABILITY\n         12.1 NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT OR\nOTHERWISE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO AN END-USER UNDER\nANY THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES\n(INCLUDING DAMAGES FOR LOSS OF BUSINESS OR LOSS OF PROFITS) OR THE COST OF\nPROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF THAT PARTY OR ITS\nREPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.\n\n         12.2 No action arising out of or related to this Agreement, regardless\nof form, may be brought by Distributor more than one (1) year after the cause of\naction has accrued.\n\n13. TRADEMARKS, TRADE NAMES AND COPYRIGHTS\n\n         13.1 During the term of this Agreement, Distributor is authorized by\nMacromedia to use the trademarks Macromedia uses for the Products solely in\nconnection with Distributor's advertisement, promotion and distribution of the\nProducts. Distributor's use of such trademarks and logos will be in accordance\nwith \n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)       100\n\nMacromedia's policies in effect from time to time, including but not limited to\ntrademark usage policies.\n\n         13.2 As both a covenant by Distributor and a condition of Macromedia's\nauthorization of Distributor's distribution, Distributor will include on each\ncopy of any materials that it creates regarding or referring to the Products all\ntrademark, copyright and other notices of proprietary rights included by\nMacromedia on the Products or requested to be so included by Macromedia from\ntime to time. Distributor agrees not to alter, erase, deface or obscure any such\nnotice on anything provided by Macromedia.\n\n         13.3 Distributor has paid no consideration for the use of Macromedia's\ntrademarks, logos, copyrights, trade secrets, trade names or designations, and\nnothing contained in this Agreement will give Distributor any interest in any of\nthem. Distributor acknowledges that Macromedia owns and retains all copyrights\nand other proprietary rights in all the Products, and agrees that it will not at\nany time during or after this Agreement assert or claim any interest in or do\nanything that may adversely affect the validity or enforceability of any\ntrademark, trade name, trade secret, copyright or logo belonging to or licensed\nto Macromedia (including, without limitation, any act, or assistance to any act,\nwhich may infringe or lead to the infringement of any copyright in the Products)\nor attempt to grant any right therein. Distributor agrees not to attach any\nadditional trademarks, logos, trade designations or other legends to any Product\nwithout the prior written consent of Macromedia. Distributor further agrees not\nto affix any Macromedia trademark, logo or trade name to any non-Macromedia\nproduct.\n\n         13.4 Except to the extent permitted pursuant to Section 11.4 hereof,\nupon expiration or termination of this Agreement, Distributor will forthwith\ncease all display, advertising and use of all Macromedia names, marks, logos and\ndesignations and will not thereafter use, advertise or display any name, make or\nlogo which is, or any part of which is, similar to or confusing with any such\ndesignation associated with any Product.\n\n         13.5 Distributor agrees to cooperate without charge in Macromedia's\nefforts to protect its proprietary rights. Distributor agrees to notify\nMacromedia of any breach of Macromedia's proprietary rights that comes to\nDistributor's attention.\n\n14.  OTHER TERMS AND PROVISIONS\n\n         14.1 Product Discontinuation Macromedia shall provide Distributor with\nthirty (30) days written notice prior to discontinuation of any Product.\nDistributor may return such discontinued Products in accordance with Section 4\nhereof.\n\n         14.2 During the term of this Agreement, Macromedia shall carry\ninsurance coverage for product liability\/completed operations with minimum\nlimits of one million dollars ($1,000,000). Within ten (10) days of the full\nexecution of this Agreement, Macromedia shall provide Distributor with a\nCertificate of Insurance evincing such insurance coverage including (a) a broad\nform vendor's endorsement naming Distributor as an additional insured and (b) to\nthe extent permitted by applicable law, a mandatory thirty (30) day notice of\ncancellation to Distributor.\n\n         14.3 This Agreement and the Exhibits A through E attached hereto\ncontain all the Agreements, understanding, representations, conditions,\nwarranties and covenants, and constitutes the sole and entire agreement between\nthe parties hereto pertaining to the subject matter hereof and supersedes all\nprior communications or agreements, written or oral. This Agreement may not be\nreleased or modified except by the mutual written consent of both Distributor\nand Macromedia as attested to by an instrument signed by an officer of each of\nthem.\n\n         14.4 Macromedia and Distributor are each independent entities and\nneither party shall be, nor represent itself to be, a franchisor, franchisee,\njoint venturer, partner, master, servant, principal, agent or legal\nrepresentative of the other party for any purpose whatsoever.\n\n         14.5 If any provision of this Agreement is declared invalid or\nunenforceable, the remaining provisions of this Agreement shall remain in full\nforce and effect.\n\n         14.6 All terms, conditions, or provisions which may appear as\npreprinted language or otherwise be inserted within any purchase order,\nconfirmation or invoice for any Product shall be of no force (unless mutually\nagreed upon by both parties) and effect notwithstanding the execution of such\npurchase order or other document subsequent to the date of this Agreement.\n\n         14.7 The rights and liabilities of the parties hereto will bind and\ninure to the benefit of their respective assignees, successors, executors and\nadministrators, as the case may be; provided, that, as the license from\nMacromedia hereunder is personal to Distributor, Distributor may not sublicense,\nassign or transfer any of its rights, privileges or obligations hereunder either\nin whole or in part, without the prior written consent of Macromedia. Nor shall\nan \n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)       101\n\nassignment or transfer of the Agreement and the licenses granted herein be\naffected by operation of law, such as for example, by merger, consolidation,\nsale of the business or assets, or by acquisition of a majority of the voting\nstock of Distributor by a third party, without the prior written consent of\nMacromedia. Macromedia, in a like manner, shall not assign nor transfer the\nAgreement without the prior written consent of Distributor. However, Macromedia\nmay assign this Agreement, without prior consent of Distributor, to a third\nparty through merger, acquisition or purchase of all or substantially all of the\nassets of Macromedia. Any attempted assignment in violation of the provisions of\nthis Section 14.5 will be void.\n\n         14.8 In the event any litigation is brought by either party in\nconnection with this Agreement, the prevailing party in such litigation will be\nentitled to recover from the other party all the costs, attorney's fees and\nother expenses incurred by such prevailing party in the litigation.\n\n         14.9 Waiver by either Distributor or Macromedia of one or more terms,\nconditions, or defaults of this Agreement shall not constitute a waiver of the\nremaining terms and conditions or of any future defaults of this Agreements.\n\n         14.10 The validity, interpretation and performance of this Agreement\nshall be controlled by and construed under the laws of the State of California\nexcluding that body of laws controlling conflict of laws.\n\nMACROMEDIA, INC.\n\nBy: \n        -------------------------------------\nName:   \/s\/ Richard B. Wood\n        -------------------------------------\nTitle:  V.P. Operations and CFO\n        -------------------------------------\nDate:   March 28, 1996\n        -------------------------------------\nDISTRIBUTOR\n\nBy:\n        -------------------------------------\nName:   \/s\/ Sanat K. Dutta\n        -------------------------------------\nTitle:  Executive Vice President\n        -------------------------------------\nDate:   March 21, 1996\n        -------------------------------------\n\n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        102\n\n                                    Exhibit A\n\nFor the purpose of this Agreement, the following terms shall have the meanings\nset forth below:\n\n         1.       \"Discounts\" shall mean the discounts set forth in Exhibit B\nfrom the Suggested List Price of such Product.\n\n         2.       \"Distributor\" shall mean Distributor and any parent,\nsubsidiary or affiliated corporations it may have during the term hereof, and\nany person or entity purchasing Products from Macromedia for sale to Retailers.\n\n         3.       \"Intellectual Rights\" shall mean any rights relating to any\ntrademark, trade name, service mark, copyright, trade secret, invention,\nindustrial model, patent, process, technology, know-how or design.\n\n         4.       \"Inventory\" shall mean at any time all units of Product (a) in\nDistributor's inventory, (b) ordered by Distributor but not yet received by\nDistributor at such time, or (c) returned by Resellers to Distributor within 180\ndays of such time.\n\n         5.       \"Payment Terms\" relating to any Product shall mean \"net 30\",\ndefined as requiring payment to arrive in Macromedia's account by the 30th\ncalendar day after Macromedia ships the Product.\n\n         6.       \"Purchase Price\" of any Product shall mean the difference\nbetween (a) the applicable Suggested List Price, and (b) the product of the\napplicable Discount and Suggested List Price of such Product.\n\n         7.       \"Resellers\" shall mean persons or entities who purchase\nProducts from Distributor and resell Product to end-users.\n\n         8        \"Return Price\" for any unit of Product shall mean the amount\noriginally billed Distributor for such unit less any rebates or amounts under\nSection 2.2 with respect to such unit actually paid or credited by Macromedia to\nDistributor.\n\n         9.       \"Suggested List Price\" of any Product shall mean the retail\nsales price of such Product as suggested by Macromedia to retailers and set\nforth in Exhibit B.\n\n         10.      \"Territory\" means the United States, Canada and all of Latin\nAmerica, with the exceptions of Mexico, Brazil and Chile.\n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        103\n\n                                    Exhibit B\n\n                               Products and Prices\n\nMACROMEDIA DISTRIBUTOR-COMMERCIAL PRICING\n\n\n\nREGULAR PROGRAM\nMACROMEDIA            DESCRIPTION                                 SRP              DISTRIBUTOR        DISCOUNT\nSKU                                                                                      COST*            RATE\n                                                                                          \nACM10D01              Action 1.0 Mac                                $  199           * *              * *\nACW30D01              Action 3.0 Windows                            $  199           * *              * *\nACW30D11              Action! Bundle 3.0 Windows                    $  299           * *              * * \nDRM40D02              Director 4.0 Mac\/PowerMac                     $1,199           * *              * * \nDRM40D15              Director 4.0 Mac 10-pak                       $9,999           * *              * * \nDRW40D02              Director 4.0 Windows                          $1,199           * *              * * \nDRW40D15              Director 4.0 Windows 10-pak                   $9,999           * *              * * \nDRD40D01              Director 4.0 Multi-Platform                   $1,999           * *              * * \nDRM40D08              Director 4.0 upgrade Mac                      $  349           * *              * * \nDRW40D11              Director 4.0 upgrade Win                      $  349           * *              * * \nMMM15D02              Macromodel 1.5 Mac with Renderman             $  199           * *              * * \nMMW15D01              Macromodel 1.5 Win with Renderman             $  199           * *              * * \nSSM10D01              SoundEdit 16                                  $  379           * *              * * \nFHM50D01              FreeHand 5.0 Mac\/PowerMac                     $  599           * *              * * \nFHM50D09              FreeHand 5.0 Upgrade Mac\/PowerMac             $  149           * *              * * \nFHM50D11              FreeHand 5.0 Competitive Upgrade              $  149           * *              * * \n                      Mac\/PowerMac                                                                        \nFHM50D05              FreeHand 5.0 Mac\/PowerMac 5-pak               $2,399           * *              * * \nFHW50D01              FreeHand 5.0 Win                              $  599           * *              * * \nFHW50D09              FreeHand 5.0 Upgrade Win                      $  149           * *              * * \nFHW50D11              FreeHand 5.0 Competitive Upgrade Win          $  149           * *              * * \nFHW50D05              FreeHand 5.0 Win 5-pak                        $2,399           * *              * * \nFTM41D01              Fontographer 4.1 Mac                          $  499           * *              * * \nFTW35D01              Fontographer 3.5 Win                          $  499           * *              * * \nWWMMPD50              Graphic Design Studio Mac                     $  999           * *              * * \nWWWMPD50              Graphic Design Studio Win                     $  999           * *              * * \n\n\n\n\nTIER I VAR\nMACROMEDIA            DESCRIPTION                                 SRP              VAR PROGRAM\nSKU                                                                                      COST*\n                                                                                            \nAPM20D01              Authorware Pro 3.0 Mac TIER I                 $4,995         * *                  * *\nAPW20D01              Authorware Pro 3.0 Win TIER I                 $4,995         * *                  * *\n\n\n\n\nTIER II VAR\/PRP PROGRAM:\nMACROMEDIA            DESCRIPTION                                 SRP              PRP PROGRAM\nSKU                                                                                      COST*\n                                                                                              \nAPW30D01              Authorware 3.0 Win TIER II                    $4,995           * *                  * *\nAPM30D01              Authorware 3.0 Mac TIER II                    $4,995           * *                  * *\nDRM40D02              Director 4.0 Mac\/PowerMac                     $1,199           * *                  * *\nDRW40D02              Director 4.0 Windows CD Rom                   $1,199           * *                  * *\nDRD40D01              Director 4.0 Multi-Platform                   $1,999           * *                  * *\nWWMMPD04              Director Multimedia Studio Mac\/PowerMac       $1,999           * *                  * *\nWWWMPD03              Director Multimedia Studio Windows            $1,999           * *                  * *\nSSM10D01              SoundEdit 16                                  $  379           * *                  * *\n\n- ----------------\n**  Confidential treatment has been requested for certain portions of this \n    document. Such omitted portions have been filed separately with the \n    Securities and Exchange Commission.\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        104\n\n                                    Exhibit C\n\n                                 Minimum Orders\n\nQuarterly Minimum Purchase Commitment\n\nWithin two weeks after the start of each calendar quarter, Macromedia shall\nprovide, and the parties shall agree upon, sell-through and purchase\nrequirements for that quarter.\n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        105\n\n                                    Exhibit D\n\n                       Macromedia Marketing Funds Program\n\n\nMacromedia Marketing Funds consist of Marketing Development Funds and\nCooperative Marketing Funds, are accrued as a percentage of Distributor's total\npurchases (not including Authorware(R) products) and are utilized as follows:\n\nMarketing Development Funds (\"MDF\") are accrued at Macromedia as a percentage of\nDistributor's total purchases at the rate of two per cent (2%) of each invoice\nand reimbursed to Distributor, as a credit to its account with Macromedia, as\nfollows: Distributor must first contact Macromedia for prior approval of\ncontemplated marketing expenditures. After approval and expenditure, Distributor\nshall request reimbursement by invoice to Macromedia, providing proof of\nperformance, and requesting a credit to its account. Once Macromedia has\nverified Distributor's request, it will debit Distributor's MDF account and\nconfirm a credit to Distributor's account receivable, in the form of a credit\nmemo. Distributor may deduct the amount of its MDF claim from payments to\nMacromedia, only after receipt of the credit memo.\n\nMDF claims for credit, along with an invoice and supporting documentation of\nperformance, must be submitted to Distributor's Macromedia Sales Representative,\nwithin three (3) months of performance, by mail or by fax, in order to be\nconsidered.\n\nCooperative Marketing Funds are accrued separately, as a percentage of\nDistributor's total purchases, at the rate of one per cent (1%) of each invoice.\nCooperative Marketing Funds shall be retained by Macromedia and shall be\nutilized by Macromedia, within its sole discretion, for cooperative marketing\nefforts.\n\n\nThe following is an example of Distributor's invoice to Macromedia for MDF\ncredits:\n\n\n\nProduct                    Quantity     Unit Cost             Extended Cost\n- ---------------------------------------------------------------------------\n                                                              \nDirector 4.0               **           $**                       $**\n\nTotal                                                             $**\n                                                                   \nMDF Claim at 2%                                                   $**\n\n\n**  Confidential treatment has been requested for certain portions of this\n    document.  Such omitted portions have been filed separately with the\n    Securities and Exchange Commission.\n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)       106\n\n                                    Exhibit E\n                (Attach Ingram Micro, Inc. Vendor Routing Guide)\n\n\n\n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)       107\n\n                                    Exhibit F\n\n                             PROPRIETARY INFORMATION\n                            NON-DISCLOSURE AGREEMENT\n\nThis Agreement is made this __day of ____, 1995 by and between Ingram Micro\nInc., a California corporation with its business at 1600 East St. Andrew Place,\nSanta Ana, CA 92799-5125 (\"Ingram\"), and Macromedia, Inc., a California\ncorporation, with its business at 600 Townsend Street, San Francisco, California\n94103 (\"Vendor\") .\n\nWHEREAS Ingram has compiled and organized certain information relating to its\nsales which is proprietary and confidential, known as the \"non-standard,\nsubsection (i), point of sale (POS) data\" component of its \"Systems Sales Out\nReport\" (\"Proprietary Information\"); and\n\nWHEREAS Ingram agrees to disclose Proprietary Information to Vendor for the\nlimited purpose set out herein; and\n\nWHEREAS Vendor desires to inspect such Proprietary Information so Vendor may\nmonitor sales through distribution;\n\nNOW, THEREFORE, in consideration of the mutual promises set out herein, the\nparties hereby agree as follows:\n\n1. Except as authorized herein, Vendor agrees not to communicate, disclose, or\notherwise make available all or any part of the Proprietary Information to any\nthird party, including, but not limited to Vendor's parent, subsidiaries, or\naffiliated companies.\n\n2. Vendor agrees not to use, or permit others to use, the Proprietary\nInformation, other than for the purpose of monitoring sales through\ndistribution. Vendor agrees to make no more than five (5) copies of the\nProprietary Information unless otherwise agreed in writing between the parties;\nand Vendor agrees to limit distribution of and access to the Proprietary\nInformation to those of Vendor's personnel who require access to Proprietary\nInformation for the foregoing purpose. Vendor agrees not to directly contact,\nfor the purpose of soliciting, or selling Product directly to any customer or\ndealer listed in the Proprietary Information.\n\n3. Vendor and Ingram mutually agree that all copies of the Proprietary\nInformation and all written descriptions, extractions, or summaries thereof,\nwhether made by Vendor or Ingram, shall be the property of Ingram, and shall,\nupon expiration of this Agreement or Ingram's request, be immediately returned\nto Ingram.\n\n4. Vendor and Ingram mutually agree that Ingram's public disclosure of the\nProprietary Information, except pursuant to a confidential disclosure agreement,\nto any party will release Vendor from the obligation of confidentiality with\nrespect to that portion of the Proprietary Information actually disclosed by\nIngram.\n\n5. Upon termination of this Agreement by either party for any reason, Vendor\nshall return all Proprietary Information to Ingram within thirty (30) days,\nirrespective of format. For purposes of enforcing this provision, Vendor's\nreturn obligation shall survive the termination of this Agreement.\n\n6. The rights, promises, duties, and obligations set out herein, and the\nvalidity, interpretation, performance, and legal effect of the whole Agreement\nshall be governed and determined by the laws of the State of California. In the\nevent that any provision is found invalid or unenforceable pursuant to\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        108\n\nstatutory or Judicial decree, such provision shall be construed only to the\nmaximum extent permitted by law, and the remainder of the Agreement shall be\nvalid and enforceable in accordance with its terms.\n\nINGRAM MICRO INC.                           MACROMEDIA, INC.\n\nBy:  ____________________________           By: _______________________________\n\nSanat K. Dutta                              Name: _____________________________\n\nExecutive Vice President                    Title: ____________________________\n\nDate: ___________________________           Date: _____________________________\n\n\n\nDomestic Distribution Agreement                                   March 15, 1996\nForm 403 Ingram Micro (3\/15\/96)        109\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7858,8105],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9619],"class_list":["post-42256","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ingram-micro-inc","corporate_contracts_companies-macromedia-inc","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\/42256","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=42256"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42256"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42256"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42256"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}