{"id":42746,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/reseller-agreement-proxima-corp-and-miami-computer-supply-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"reseller-agreement-proxima-corp-and-miami-computer-supply-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/reseller-agreement-proxima-corp-and-miami-computer-supply-inc.html","title":{"rendered":"Reseller Agreement &#8211; Proxima Corp. and Miami Computer Supply Inc."},"content":{"rendered":"<pre>\n                                   PROXIMA(R)\n\n                               RESELLER AGREEMENT\n\nThis is an Agreement (\"Agreement\") between Proxima Corporation (\"Proxima\"), a\nDelaware corporation having its principal place of business at 9440 Carroll Park\nDrive, San Diego, California 92121-2298, and Miami Computer Supply Inc.\n(\"Buyer\"), a Ohio corporation. This Agreement sets forth the general terms and\nconditions between Proxima and Buyer for the purchase of products (\"Product\" or\n\"Products\"). Terms and conditions specific to Buyer's classification are\ndelineated in Exhibit A. Applicable Products, pricing and discounts are\ndelineated in Exhibit B.\n\n1. Term of Agreement. This Agreement is effective May 29, 1996, for a period of\none (1) year (\"Term\"), and shall renew for successive one (1) year Terms unless\neither party provides notice to the other of an intent not to renew the\nAgreement within thirty (30) days of expiration of a Term.\n\n2. Appointment. Proxima grants to Buyer, and Buyer accepts, the non-exclusive\nright to resell all Products offered during the Term of this Agreement. Proxima\nreserves the right to appoint other resellers or to make direct sales to anyone\nat any time without notice or liability.\n\n3. Obligations.\n\n(A) During the Term of this Agreement, Proxima agrees:\n\n     (1) To support the Products and efforts by Buyer to sell the Products.\nSupport may include, but is not limited to, sales leads generated through\nProxima's marketing activities.\n\n     (2) To provide, at the request and at no cost to Buyer, standard\nadvertising materials and reasonable training to Buyer's employees in the sale\nand use of the Products.\n\n     (3) To notify Buyer of any new Products to be made available under this\nAgreement.\n\n     (4) To use reasonable efforts to maintain sufficient Product inventory to\nfill Buyer's orders as required. In the event a Product shortage occurs, Proxima\nwill allocate any available Product to Buyer in proportion to Buyer's percentage\nof all like Buyer's purchases for that Product during the previous sixty (60)\ndays.\n\n\n\n\n     (5) To provide Buyer with a monthly account statement listing all\noutstanding invoices, payments made and credits issued since the date of the\nprevious statement.\n\n     (6) To provide Buyer a quarterly accounting of Sales Goal achievement,\nrebate credits issued and Marketing Development Funds (MDF) accrued and\navailable.\n\n(B) During the Term of this Agreement, Buyer agrees:\n\n     (1) To list the Products in its catalogs and make the Products available to\nits customers.\n\n     (2) To advertise, promote and use Buyer's best efforts to sell the\nProducts.\n\n     (3) To make Buyer's facilities available and assist Proxima in providing\nProduct training and support.\n\n     (4) To provide Product technical assistance to its customers as it is\nreasonably able to do so, and refer all other unresolved technical matters\ndirectly to Proxima.\n\n     (5) To develop and implement an acceptable business and marketing plan for\nthe promotion and sale of the Products. Buyer and Proxima will review the plan,\nas required, but no less than every six (6) months.\n\n     (6) To provide current financial information to Proxima every six (6)\nmonths.\n\n     (7) Not to submit orders for less than $150.00.\n\n     (8) To conduct its business in a way to maintain the highest quality\nprofessionalism in all dealings with its customers. Buyer is responsible for\ncustomer satisfaction and agrees to participate in customer satisfaction\nprograms developed by Proxima.\n\n     (9) To ensure that Buyer's compensation\/incentive plans for its employees\nwho market Proxima Products are fair to Proxima in relation to Buyer's plans for\nany competitive products Buyer markets.\n\n     (10) To furnish sales receipts to your customers upon delivery of products\nspecifying customer's name and address, machine model, and date of sale.\n\n4. Price. Prices to Buyer are determined solely by Proxima and may be revised at\nany time upon written notice to Buyer. The Product pricing established in\nExhibit B is exclusive of state and local use, sales and property taxes and\nduties. Buyer is responsible for all taxes and duties incurred as a result of\nthe purchase of Products. All applicable taxes will be included on Buyer's\ninvoice unless Buyer provides Proxima with a valid reseller exemption\ncertificate for the applicable taxing jurisdiction. Buyer is free to establish\nits own resale prices.\n\n\n                                        2\n\n\n\nProxima agrees to provide the same pricing and discounts to Buyer as to other\nResellers who buy the same Products in substantially the same amounts under\nsubstantially similar terms and conditions, and who compete with Buyer.\n\n5. Price Increase. Proxima will provide Buyer with a written notice thirty (30)\ndays prior to any price increase. Buyer may order any quantity of Product during\nthe notification period at the lower price, however, all Product on order or\nordered during the notification period which is scheduled for delivery more than\nforty-five (45) days from the date of notification will be invoiced at the\nincreased price.\n\n6. Price Decrease. Price reductions will be applied to all Product on order, in\ntransit or purchased in the previous thirty (30) days and remaining in Buyer's\ninventory on the effective date of the price decrease. Proxima will promptly\nissue an account credit for the difference between the invoiced price and the\ndecreased price for units in inventory, or in transit. On order units will be\ninvoiced at the decreased price. Proxima reserves the right to physically verify\ninventory.\n\n7. Product Revisions. Proxima reserves the right to modify, add or eliminate\nProducts which are available under this Agreement at any time on written notice\nto Buyer.\n\n8. Delivery. Delivery occurs F.O.B. Proxima's warehouse in San Diego,\nCalifornia, USA, and Buyer receives title upon delivery. In the absence of\ncarrier selection and shipment instructions from the Buyer, Proxima will make\nall carrier selections. Buyer is responsible for all costs and expenses related\nto Product delivery including, but not limited to, freight, taxes, duties,\ninsurance, and risk of loss.\n\nOrders placed and scheduled for shipment at a net purchase price of $35,000 or\nmore, and shipped to the Buyer's location within the contiguous forty-eight\nUnited States, will be shipped prepaid. In addition to normal freight charges, a\n$50.00 special handling surcharge will be applied to each drop shipment location\nother than the Buyer's normal address. Multiple drop shipment locations on one\norder will receive a corresponding number of special handling surcharges.\n\n9. Credit. Proxima may establish a line of credit (under the terms and\nconditions of Proxima's Credit Application) which Buyer agrees not to exceed.\nThis line of credit may be changed or canceled at Proxima's sole discretion if\nBuyer's financial condition changes during the Term of this Agreement or if\nBuyer fails to comply with the payment terms herein.\n\n10. Payment. Payment terms are cash in advance, or with approved credit, two\npercent (2%) fifteen (15) days or next sixty (60) days from the date of invoice.\n\nIf Buyer does not comply with Proxima's payment terms, Proxima may declare Buyer\nin default, terminate this Agreement at its option and pursue any or all of the\nfollowing remedies: (1) collect interest at the lower of the rate of one and\none-half percent (1-1\/2%) per month or the maximum\n\n\n                                        3\n\n\n\ninterest under applicable law on all invoices older than thirty (30) days; (2)\ndeclare all unpaid balances, including interest, immediately due and deny any\nfurther credit; (3) repossess Products not paid for in full and remaining in the\npossession of Buyer; (4) cancel any unshipped orders; or (5) any other remedies\navailable at law or in equity.\n\nProxima reserves a purchase money security interest in Products, and Buyer\ngrants Proxima a purchase money security interest in Buyer's proceeds from the\nsale of, and account receivable for, Products until Proxima receives the amounts\ndue. Buyer agrees to sign an appropriate document (for example, a \"UCC-1\") to\npermit Proxima to perfect its security interest.\n\n11. Product Returns. All Products returns authorized below require a Proxima\nissued Return Merchandise Authorization (RMA) number. Where applicable, upon\nreceipt of the Products at Proxima's warehouse, an account credit will be issued\nfor the full purchase price less any previously applied discounts or credits.\n\n(A) Stock Balancing. Buyer may return current Product remaining in its inventory\nat the end of each calendar quarter provided that: (i) Products are unused and\nin the original, unopened packaging; (ii) Buyer pays all transportation charges\nand bears risk of loss until Products are received at Proxima's warehouse; and\n(iii) the total returns do not exceed fifteen percent (15%) of the previous\nquarter's purchases.\n\n(B) Product Discontinuation. Within thirty (30) days after receipt of\nnotification of a Product discontinuation, Buyer may return all such unused\nProduct remaining in Buyer's inventory in their original, unopened packaging.\nDiscontinued Products are to be shipped F.O.B. Buyer's warehouse, freight\ncollect via the carrier of Proxima's choice.\n\n(C) Defective Product. Buyer may return any Product found to be defective upon\ndelivery for full account credit provided the return is made within sixty (60)\ndays after original shipment. Warranty returns are to be shipped F.O.B. Buyer's\nwarehouse, freight collect via the carrier of Proxima's choice.\n\n12. Rebate. Buyer may earn Rebate credits to its account based upon achievement\nof Quarterly Sales Goals as described in Exhibit A.\n\n13. Market Development Funds (MDF). In accordance with the Exhibit A, Buyer may\nreclaim certain marketing and promotional expenditures relating to Proxima\nProducts provided that Buyer submits the advertisement or promotion to Proxima\nfor review and approval, and receives such approval in writing prior to its\ninitial release. Then, upon submittal of invoice copies for actual expenses\nincurred, Buyer's account will be credited in the amounts and in the manner\nspecified in Exhibit A.\n\n14. Special Promotions. Proxima may from time to time offer Buyer special\npromotional pricing and\/or Products. Promotional pricing is not considered a\nprice decrease. Buyer will comply with any specific terms and conditions\nassociated with the promotion.\n\n\n                                        4\n\n\n\n15. Warranty. Proxima warrants that the Products will be free from defects in\nmaterial and workmanship, and will perform in accordance with their\nspecifications for a period of one (1) year from the date of purchase by the end\nuser customer, as evidenced by a sales receipt or invoice showing the date of\npurchase. During the warranty period, Proxima, at its sole option, will repair\nor replace defective parts or units at no charge.\n\nProxima will not be responsible for repair of damage resulting from: (1)\nabnormal conditions such as accidents, fire or water; (2) negligent use or\nmisuse of the Products; (3) maintenance repairs, modifications or alterations\nperformed by any person other than an employee of Proxima; or (4) any cause\nother than ordinary use.\n\n16. Limitation of Liability. THE FOREGOING EXPRESS WRITTEN MANUFACTURER'S\nWARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER WARRANTIES OR\nREMEDIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF\nMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROXIMA SHALL IN NO EVENT\nBE LIABLE TO BUYER, OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INDIRECT OR\nINCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF\nBUSINESS OPPORTUNITY, LOSS OF GOODWILL, AND\/OR INTERFERENCE WITH BUSINESS\nRELATIONSHIPS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROXIMA SHALL\nIN NO EVENT BE LIABLE FOR ANY DAMAGE TO OR FAILURE OF OTHER EQUIPMENT TO WHICH\nTHE PRODUCTS ARE CONNECTED. IN THE EVENT PROXIMA IS FOUND LIABLE FOR ANY DAMAGES\nRELATING IN ANY WAY TO THIS AGREEMENT, PROXIMA'S MAXIMUM LIABILITY SHALL NOT\nEXCEED THE GREATER OF $50,000 OR THE PRICE CHARGED TO BUYER FOR THE PRODUCT THAT\nIS THE SUBJECT OF THE CLAIM.\n\n17. Indemnification. If any third party claims that a Product infringes its\nissued United States patent, Proxima will indemnify and hold Buyer harmless\nagainst any damages, judgments, or settlements (including costs and reasonable\nattorneys' fees) resulting from the claim, provided that Buyer promptly notifies\nProxima in writing of the claim, permits Proxima to take over the defense and\nreasonably cooperates with Proxima in said defense. Proxima has the right to\nselect counsel and may settle the matter. If such a claim is made or appears\nlikely to be made relating to a Product in Buyer's inventory, Buyer agrees to\npermit Proxima, at its option to: (1) substitute a comparable non-infringing\nProduct; (2) modify the Product to make it non-infringing; (3) obtain a right\nfor continued use or sale of the Product (all at Proxima's expense), or (4) if\nthe above are not reasonably available, buy back all such Products remaining in\ntheir original unopened packaging at the original purchase price. If such\nProducts have been used, but are still in Buyer's possession, Proxima will buy\nback all such Products at the original purchase price less depreciation. This\nindemnification does not apply to claims resulting from modification of the\nProducts or claims resulting from combination of the Products with any other\ndevices. This provision sets forth Proxima's entire obligation to Buyer\nregarding any claim of infringement.\n\n\n                                        5\n\n\n\nIn addition to any damages Buyer may be liable for under law and the terms of\nthis Agreement, Buyer will indemnify Proxima for claims by others made against\nProxima (particularly regarding statements, representations, or warranties not\nauthorized by Proxima) arising out of this Agreement or as a result of Buyer's\nrelations with anyone else.\n\n18. Assignment. Proxima may assign its rights under this Agreement. Buyer may\nnot assign any rights or delegate any obligations under this Agreement, or\nappoint any other agent to represent Buyer or to market the Products, without\nProxima's prior written consent. Any attempt to do so without prior written\nconsent is void.\n\nBuyer agrees to provide Proxima with prompt written notice (unless otherwise\nprecluded by law) of any change, or anticipated change, in Buyer's financial\ncondition or business structure (for example, a material change in equity\nownership or management, or closing or relocation of a primary business\nlocation). Such change or failure to give notice may result in termination of\nthis Agreement.\n\n19. Enforcement of Provisions. The failure on any occasion by either party to\nenforce any provision of this Agreement will not prevent enforcement of that\nprovision on any other occasion.\n\n20. Relationship of the Parties. Buyer is an independent contractor and has no\nright or authority to bind Proxima or to assume or to create any obligation or\nresponsibility, express or implied on behalf of Proxima. Nothing in this\nAgreement shall be construed as creating a partnership of the relationship of\nprincipal and agent between Buyer and Proxima.\n\n21. Termination of Agreement. Either party may terminate this Agreement without\ncause or liability by giving ninety (90) days written notice to the other party.\nBuyer agrees that Proxima's only obligation in the event it terminates this\nAgreement is to provide the notice called for in this provision and Proxima is\nnot liable for any claims or losses if Proxima does so.\n\nExcept as otherwise provided, either party may terminate this Agreement without\nliability in the event that the other party is in default of any obligation or\nresponsibility under this Agreement and such default continues unresolved for a\nperiod of thirty (30) days after written notice or recurs at any time following\nwritten notice and cure. Any default under this Agreement or Proxima's Credit\nApplication shall be deemed a default under both agreements.\n\nThis Agreement shall automatically terminate without notice in the event that\neither party ceases conducting business in the normal course, becomes insolvent,\nmakes a general assignment for the benefit of creditors, suffers or permits the\nappointment of a receiver for its business or assets, or avails itself of or\nbecomes subject to any proceeding under the Federal Bankruptcy Act or any other\nfederal or state statute relating to insolvency.\n\nUpon termination or expiration of the Term, Buyer must immediately pay Proxima\nall amounts due. Buyer may return any Product remaining in inventory under the\nprovisions of Section 11 of the Agreement. Proxima may offset any amounts due\nBuyer, if any, against amounts due to\n\n\n                                        6\n\n\n\nProxima. Any terms of this Agreement which by their nature extend beyond\ntermination\/expiration, remain in effect until fulfilled.\n\n22. Force Majeure. Neither party will be liable to the other for delay in\nperforming any obligations under this Agreement, except the obligation to make\npayments, due to circumstances beyond its reasonable control, including, but not\nlimited to, revolutions, insurrections, riots, wars, acts of enemies, national\nemergency, strikes, floods, embargoes, inability to secure materials or\ntransportation, and acts of God or governmental authorities.\n\n23. Notices. Any required or permitted notice will be deemed to have been given\nwhen received in writing at the address of the party being given notice.\n\n24. Applicable Law. This Agreement shall be governed by and construed in\naccordance with the laws of the State of California excluding its choice of law\nstatutes.\n\n25. Judicial Interpretation. Any provisions in this Agreement which are found to\nbe prohibited by law shall be ineffective to the extent of such prohibition\nwithout invalidating the remaining provisions.\n\n26. Causes of Action. Both parties will act in good faith to resolve disputes.\nNeither party will bring legal action more than two years after the cause of\naction arose. Any legal action will only be commenced in the State of\nCalifornia, County of San Diego and Buyer hereby consents to personal\njurisdiction in said forum.\n\n27. Compliance with Laws and Regulations. Both parties will comply with\napplicable federal, state, and local laws, rules, regulations and executive\norders. Buyer will be responsible for obtaining all permits, licenses, or\ncertificates required by any regulatory body for the use or resale of the\nProducts.\n\n28. Modifications. All modifications of this Agreement must be in writing and\nsigned by an authorized representative of each party.\n\n\n                                        7\n\n\n\n29. Complete Agreement. This Agreement and its Exhibits contain the complete and\nexclusive agreement between the parties and supersede all other prior or\ncontemporaneous written or oral communications between the parties relating to\nthe subject matter hereof.\n\nThe terms and conditions of each party's purchase orders, invoices,\nacknowledgements\/confirmations or similar documentation shall apply to any order\nand any such terms and conditions shall be deemed objected to without need of\nfurther notice.\n\n                                    PROXIMA CORPORATION\n                                    9440 Carroll Park Drive\n                                    San Diego, CA 92121-2298\n\n\n                                    BY:_________________________________________\n                                           Signature                   Date\n\n                                    NAME:_______________________________________\n\n\n                                    TITLE:______________________________________\n\n\n                                    BUYER\n\n\n                                    BY:_________________________________________\n                                           Signature                   Date\n\n                                    NAME:_______________________________________\n\n\n                                    TITLE:______________________________________\n\n\n                                    ADDRESS:____________________________________\n\n\n                                        8\n\n :  page&gt;\n\n                                     PROXIMA\n                               RESELLER AGREEMENT\n                                    EXHIBIT A\n\n\nA. MINIMUM DOLLAR VOLUMES\n\nTo qualify as a Proxima reseller, Buyer agrees to purchase a minimum of $500,000\nin Proxima Products, net of discounts and credit during the Term of this\nAgreement.\n\nB. REBATE\n\nReseller has the opportunity to earn rebates based on achievement of quarterly\nnet purchase goals outlined below:\n\n         QUARTERLY NET PURCHASE GOAL                   REBATE\n         ---------------------------                   ------\n\n           $200,000 - 299,000                            0.5\n           $300,000 - 399,999                            1.0\n           $400,000 - 499,999                            1.5\n           $500,000+                                     2.0\n\nIn the month following the end of each calendar quarter, Proxima will calculate\nBuyer's rebate credit due for the quarter just ended. Proxima will promptly\nissue a credit to Buyer's account. For purposes of calculating rebates, each\nquarter is independent and no purchase dollars shall be cumulative one quarter\nto the next. Orders containing discounts above those offered in Exhibit B will\nnot qualify for rebate credit.\n\nC. MARKET DEVELOPMENT FUND (MDF)\n\nBuyer may reclaim expenses incurred for certain marketing activities such as\nadvertising, promotions, trade shows, direct mail and other marketing needs\nthrough the use of MDF credits. Buyer may also at its sole discretion, use MDF\ncredits to purchase marketing programs that may be developed by Proxima from\ntime to time and made available to the Buyer. MDF up to a maximum of $10,000 is\navailable as follows:\n\n     1. MDF credits are accumulated for Buyer based upon Buyer's net shipments\nmultiplied by a factor of two (2%) percent.\n\n     2. All MDF credits are held by Proxima until the sooner of (i) a claim,\napproved by Proxima, is processed, or (ii) termination\/expiration of the\nAgreement in which event unused credits will be forfeited by Buyer. In the event\nthe Agreement is renewed for another Term, unused credits from the prior Term do\nnot carry over.\n\n\n                                        9\n\n\n\n     3. Buyer may request Proxima to apply MDF credits to Buyer's account\nprovided that:\n\n          A.   The request is within sixty (60) days of the event;\n          B.   Buyer contributes fifty (50%) percent of event cost; and\n          C.   Buyer has submitted a request and received, in writing, from\n               Proxima, notification that the event meets Proxima qualifications\n               for MDF, prior to the event date; and\n          D.   Buyer has submitted final invoice copies as proof of event, and\n               other information as requested by Proxima Marketing after the\n               event.\n\n     4. Orders containing discounts above those offered in Exhibit B will not be\nincluded in calculating Buyer's MDF credits.\n\n     5. In the following month, Proxima will calculate and apply buyer's MDF\ncredits and notify Buyer of remaining MDF availability.\n\n     6. Proxima reserves that absolute right to determine the suitability and\/or\neligibility of any expenditure for reimbursement in accordance with Proxima\nMarketing Department Guidelines and Section 13 of the Agreement.\n\n     7. Proxima reserves the right to change the requirements for or discontinue\nthe availability of MDF upon thirty (30) days written notice.\n\nD. DEMONSTRATION HARDWARE\n\nFrom time to time, Proxima may offer the Buyer demonstration equipment under\nspecial program terms. If Buyer takes advantage of Proxima's demonstration\nprogram terms, Buyer must retain possession of the demonstration equipment for\nat least six (6) months after it has made payment to Proxima for the equipment.\nFailure to do so is cause of termination of this Agreement.\n\n\n                                       10\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8168,8597],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9619],"class_list":["post-42746","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mcsi-inc","corporate_contracts_companies-proxima-corp","corporate_contracts_industries-technology__hardware","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\/42746","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=42746"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42746"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42746"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42746"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}