{"id":42526,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/marketing-agreement-micronpc-llc-and-einstein-computer-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"marketing-agreement-micronpc-llc-and-einstein-computer-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/marketing-agreement-micronpc-llc-and-einstein-computer-corp.html","title":{"rendered":"Marketing Agreement &#8211; MicronPC LLC and Einstein Computer Corp."},"content":{"rendered":"<pre>\n                               MARKETING AGREEMENT\n\n\n      This Agreement is made and entered into as of the 1st day of September,\n2001 by and between MicronPC,LLC (\"Vendor\"), a Delaware limited liability\ncompany with its principal place of business in Nampa, Idaho, and Einstein\nComputer Corporation (\"Einstein\"), a Colorado corporation with its principal\nplace of business at 1601 N. Harrison Parkway, Suite 200A, Sunrise, Florida\n33323, for the purpose of participating in Employee Purchase Programs (the\n\"Programs\") managed by Einstein, as described below.\n\n      The parties agree as follows:\n\n      1. Program Participation. Einstein shall provide Vendor with\nadvertising placements on a non-exclusive basis in the Program catalogs (where\napplicable), collateral sales materials and related web sites it shall utilize\nfor offering computer sales to the companies (and their employees) and agents\nlisted (the \"Participating Companies and Agents\") on the Schedule of Program and\nMarketing Fees (attached hereto as Exhibit A). In the event Einstein develops,\nmanages or otherwise makes any computer sales available to a company or agent\nnot listed on Exhibit A during the terms of this Agreement, such company or\nagent may, upon mutual written agreement, be added to the list of Participating\nCompanies and Agents under this Agreement. During the term(s) of this Agreement\nand for a period of one (1) year after the termination of such term(s), Vendor\nagrees to keep the list of Participating Companies and Agents in strict\nconfidence and shall not disclose the names of such companies or agents to any\nthird party unless required by law. During the term(s) of this Agreement and for\na period of thirty days after the termination of such term(s), Vendor shall not,\ndirectly or indirectly, intentionally circumvent Einstein and sell computers\ndirectly to the companies (and their employees) and agents in a Worksite\nmarketing environment (i.e. to employees via their employer) that are listed in\nExhibit A of this Agreement and any subsequent names that may be added to such\nExhibit in accordance with this Agreement. Nothing in this Agreement shall be\nconstrued to prevent Vendor from selling a computer to any individual who seeks\nto purchase a computer or accessories directly from Vendor.\n\n      2. Vendor and Einstein Roles and Responsibilities. (a) During the term of\nthis Agreement, Vendor shall offer the employees of the Participating Companies\nthe discount on the products and\/or services described on the Schedule of\nProgram and Marketing Fees (the \"Offer\"). Vendor agrees that such discounted\npricing shall be prominently displayed in advertising related to the Offer.\n\n      (b) Except as may be set forth in the Schedule of Program and Marketing\nFees, Vendor hereby agrees that employees of the Participating Companies may\nplace orders for any of the products or services included in the Offer by\ncompleting an application and order form. Vendor shall process such orders in\naccordance with its standard credit approval procedures, and shall accept only\nthose orders which it determines desirable, in its sole discretion;\n\n      (c) Einstein shall bear sole responsibility for all of the costs it incurs\n      procuring sales in connection with this Agreement, including, but not\n      limited to, all costs relating to sales literature, collateral materials,\n      etc; provided, however, that all such materials (i.e., print, web, etc.)\n      shall be subject to Vendor's written approval prior to publication, use in\n      connection with solicitation, etc. Vendor will provide a non-exclusive\n      license to use Vendor's logo and artwork in connection with Einstein's\n      performance of the Agreement, as set forth in Section 8 below;\n\n      (d) Vendor shall contract directly with the employees of the Participating\n      Companies to provide the products, services, warranties, refunds, and\n      other such terms and conditions that shall be included in the offer.\n      Vendor will drop-ship product directly to the end user, as agreed to by\n      Vendor and such employee(s).\n\n                                       46\n\n\n      (e) Vendor may provide to Einstein such PCs, laptops, printers,\naccessories, etc. as Vendor deems reasonably necessary to the performance of\nthis Agreement, subject to Einstein's prior execution of Vendor's standard\nEvaluation Product Agreement.\n\n      3.  Fees; Reporting; Taxes\n\n      (a) Vendor shall pay Einstein a Marketing Fee as described on the Schedule\nof program Exhibit A. Vendor shall forward to Einstein a report in electronic\nformat addressed to containing the following information:\n\n          (i)   the price at which such service or product was sold;\n          (ii)  the amount or quantity of service or product sold;\n          (iii) the fiscal week of each such sale;\n          (iv)  the name of the purchaser's employer; and,\n          (v)   a unique customer identifier (as agreed to between the parties).\n\n      (b) The Marketing fee due hereunder for any month or partial month shall\n    be determined according to the formula set forth in the attached Exhibit A,\n    and shall be forwarded to Einstein together with the report for such month\n    or partial month. Vendor shall provide the Marketing Fee report and payment\n    within 20 business days of the end of each Vendor fiscal month. Vendor shall\n    pay fees on all orders subject to this Agreement for which Vendor received\n    payment during the prior Vendor fiscal month, as set forth in the attached\n    Exhibit A.\n\n      (c) Vendor shall be solely responsible for all United States federal,\n    state and local taxes relating to the marketing, shipping and sale of\n    Vendor's products and\/or services offered pursuant to the Programs.\n\n        4. Term. (a) This Agreement is effective as of the date hereof and\nexpires on June 30, 2002; provided, however, this Agreement shall automatically\nrenew for additional one (1) year periods unless notice of non-renewal is\ndelivered by either party to the other at lease sixty (60) days prior to the\nexpiration of the initial term or any subsequent renewal term of this Agreement;\nprovided, further, that either party may terminate this Agreement without cause\nor any further obligation by providing sixty (60) days advance written notice.\n\n        5. Confidentiality. (a) During and for the three (3) years after the\nterm of this Agreement, each party shall keep confidential and not disclose to\nany third party or use for its own benefit, except as expressly permitted\nherein, or for the benefit of any third party, any information regarding the\nemployees of the Participating Companies obtained as a result of such employees\nparticipating in any Program (including, but not limited to, any information\nobtained as a result of transactions between Vendor and such employees) or any\ninformation concerning the other party's business, technology, customers,\nadvertisers or products which is confidential and proprietary to such party and\nis generally not known to the public (collectively, \"Confidential Information\").\n\n(b) The provisions of this Section 5 will not apply to Confidential Information\nto the extent that such information (i) was generally available to the public\nwithout breach of this Agreement by the receiving party; (ii) was rightfully in\nthe receiving party's possession prior to disclosure to it by the disclosing\nparty, (iii) was rightfully received by the receiving party from a third party\nwithout a duty of confidentiality; or (iv) is required to be disclosed by\noperation of law.\n\n(c) If either party breaches any of its obligations under this Section 5 or is\nsusceptible of occurring, such other party shall be entitled to seek equitable\nrelief, including specific performance or an injunction, in addition to any\nother rights or remedies, including money damages, provided by law.\n\n          6. Representations and Warranties; Disclaimer. (a) Einstein represents\nand warrants to vendor that (i) Einstein has all rights and licenses necessary\nto manage the Programs for the Participating Companies and (ii) Einstein shall\ncomply with all applicable laws, regulations and requirements of all applicable\njurisdictions.\n\n                                       47\n\n\n          (b) Vendor represents and warrants to Einstein that (i) Vendor has all\nrights and licenses necessary to market, promote, resell and distribute the\nproducts and\/or services in connection with the Offer and (ii) Vendor shall\ncomply with all applicable laws, regulations and requirements of all applicable\njurisdictions.\n\n          7. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE\nFOR (A) INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF THE OTHER\nPARTY ARISING OUT OF THIS AGREEMENT; OR (B) DAMAGES THAT, IN THE AGGREGATE,\nEXCEED THE GROSS AMOUNTS PAID OR PAYABLE BY VENDOR TO EINSTEIN AT THE TIME THE\nACTION GIVING RISE TO A CLAIM FOR DAMAGES AROSE. IN ADDITION, NEITHER PARTY\nMAKES ANY REPRESENTATIONS THAT THE OPERATION OF THEIR RESPECTIVE WEB SITES WILL\nBE UNINTERRUPTED OR ERROR FREE AND NEITHER PARTY SHALL BE LIABLE FOR THE\nCONSEQUENCES OF ANY SUCH INTERRUPTION OR ERRORS. UNDER NO CIRCUMSTANCES SHALL\nEINSTEIN BE LIABLE FOR EITHER (A) THE CONTENT, PRODUCT OR SERVICES OF VENDOR OR\n(B) ANY TRANSACTION BETWEEN THE VENDOR AND THE EMPLOYEES OF THE PARTICIPATING\nCOMPANIES.\n\n        8. Licenses; Trademarks. (a) Subject to the terms and conditions of this\nAgreement, Vendor grants to Einstein a royalty-free, nonexclusive,worldwide\nlicense to use, reproduce, modify, display, distribute, and transmit all\ncontent, text, graphics, and other materials related to the advertising\nplacements or the Offer provided by Vendor (collectively, the \"Vendor Content\")\nsolely to perform its obligations under this Agreement. Einstein's use of the\nVendor Content is subject to Vendor's prior review and consent. Vendor will\nretain all right, title, and interest in and to the Vendor Content and all\nintellectual property rights therein.\n\n        (b) Subject to the terms and conditions of this Agreement, Vendor grants\nto Einstein a royalty-free, nonexclusive, worldwide license to use Vendor's\ntrademarks, trade names, service marks, and logos (collectively, the \"Vendor\nMarks\") solely to perform its obligations under this Agreement. Einstein's use\nof the Vendor Marks is subject to Vendor's prior review and consent. Vendor will\nretain all right, title, and interest in and to the Vendor Marks.\n\n        (c) Vendor has no right to use, or authorize the use of, any trademark,\nservice mark or trade name of any of the Participating Companies, and Vendor\nshall not use or allow the use of any trademark, service mark, or trade name of\nany of the Participating Companies without the prior written consent of such\nParticipating Company.\n\n        9. General Provisions. (a) Einstein shall perform its obligations\nhereunder as an independent contractor and shall be solely responsible for its\nown financial obligations. Nothing contained herein will be construed to imply a\njoint venture or principal and agent relationship between the parties, and\nneither party shall have any right, power or authority to create any obligation,\nexpress or implied, on behalf of the other in connection with the performance\nhereunder.\n\n(b) This Agreement and the exhibits hereto constitute the entire agreement\nbetween the parties, may only be amended in writing signed by both parties, and\nsupersede all prior agreements with respect to the matters covered by this\nAgreement.\n\n        (c) This Agreement shall benefit and bind the successors and assigns of\nthe parties. The waiver of one breach or default hereunder shall not constitute\nthe waiver of any subsequent breach or default. All waivers must be in writing.\n\n        (d) All notices permitted or required under this Agreement must be in\nwriting and must be delivered in person, mailed by first class mail, postage\nprepaid (registered or certified), or sent by telecopy with a confirming copy\nsent by mail, to the party to receive the notice at the address set forth at the\nbeginning of this Agreement or such other address as either party may specify in\nwriting. All such notices will be effective upon receipt.\n\n                                       48\n\n\n        (e) This Agreement may be executed in counter parts, each of which shall\nbe deemed an original, but all of which taken together shall constitute one and\nthe same instrument. This Agreement may be executed and delivered by facsimile\nand the parties agree that such facsimile execution and delivery shall have the\nsame force and effect as delivery of an original document with original\nsignatures, and that each party may use such facsimile signatures as evidence of\nthe execution and delivery of this Agreement by all parties to the same extent\nthat an original signature could be used.\n\n        (f) This Agreement is governed by the laws of the State of Idaho,\nwithout giving effect to provisions related to choice of laws or conflict of\nlaws. Venue for any action arising out of or based upon this Agreement shall be\nin the state and county of the party against whom such action shall be brought.\nVendor and Einstein expressly consent and submit to the exclusive jurisdiction\nof either the state or federal district courts located in such state and county.\n\n        EINSTEIN, INC.                             MICRONPC,LLC\n\nBy:                                      By: \n    ----------------------------             ----------------------------\nName:  Brett Merl                        Name:  Adam Lerner\nTitle:                                   Title:\nDate:                                    Date:\n\n\n                                       49\n\n\n           EXHIBIT A Effective ______________ through _______________\n                     Schedule of Program and Marketing Fees\n\nThe Marketing Fee shall be defined as the difference between the Product Price\nset forth below and the End User Price that Vendor invoices to the end user\ncustomer.The End User Price shall be exclusive of any costs attributable to\nitems other than the computer hardware and associated services, including but\nnot limited to insurance, shipping, taxes, etc. In addition, the Marketing fee\nfor each month shall be reduced by the amount of any return allowances, credits,\nrebates, etc. provided during that same month in connection with sales under\nthis Agreement.\n\n(Insert list of Participating Companies and Agents)\n\n\n\n(Insert list of products\/prices)\n\n\n\n                                       50\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8036,8218],"corporate_contracts_industries":[9504,9512],"corporate_contracts_types":[9613,9619],"class_list":["post-42526","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-legal-club-of-america-corp","corporate_contracts_companies-micron-technology-inc","corporate_contracts_industries-services__legal","corporate_contracts_industries-technology__semiconductors","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\/42526","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=42526"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42526"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42526"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42526"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}