Software Reseller Agreement [Amendment] - ADAM Software Inc. and Churchill Livingstone Inc.
AMENDMENT TO SOFTWARE RESELLER AGREEMENT
Amendment to Software Reseller Agreement made this 23rd day of
December, 1996, by and between A.D.A.M. SOFTWARE, INC., a Georgia corporation
("ADAM") and CHURCHILL LIVINGSTONE INC., a Delaware corporation ("Churchill
Livingstone").
WHEREAS, ADAM and Churchill Livingstone have entered into a Software
Reseller Agreement dated May 8, 1995 (the "Reseller Agreement");
WHEREAS, certain disputes have arisen between ADAM and Churchill
Livingstone under the Reseller Agreement;
WHEREAS, the parties hereto desire to resolve such disputes by entering
into this Amendment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Inventory Price Protection. ADAM agrees to issue a credit in the
amount of $52,500 to be applied to the outstanding balance owed to ADAM by
Churchill Livingstone for price protection purposes covering all inventory
purchases made prior to the execution of this Amendment.
2. No Minimum Sales Requirements.
(a) Notwithstanding anything contained in the Reseller Agreement to
the contrary, Churchill Livingstone shall have no obligation to meet any
performance objective or to submit any annual plan relating to performance
objectives or to purchases or resell any minimum number copies of the Products.
ADAM waives all rights it may have arising from Churchill Livingstone's past or
future failure to meet any performance objective or submit or meet any annual
plan or purchase or resell any minimum number of copies of the Products.
(b) Churchill Livingstone would still be required to prepare an
annual Marketing plan. Churchill Livingstone will submit to ADAM monthly
reports of inventory on-hand by the 5th day of the following month.
3. Termination of Restrictions. The restrictions set forth in subsections
3.3(a), (b) and (c) of the Reseller Agreement on ADAM's right to sell and
authorize third parties to sell the Products shall terminate as of the close of
business on December 31, 1996, and thereafter such restrictions shall be null
and void. During the term of the Reseller Agreement ADAM will not sell copies
of the Primary Products at a price more favorable, taken as a whole, than that
granted to Churchill Livingstone, to any similarly situated reseller (defined
as a reseller of a similar kind), for similar volumes, for resale in the
Primary Market in the Territory.
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4. New Versions of Products. If ADAM releases a new version, edition or
upgrade to any product, Churchill Livingstone will be able to stock balance
product purchased after the date of execution of this Amendment for the new
product. Upon return to ADAM of Product eligible for stock balancing,
Churchill Livingstone will be credited the actual amount they paid for the old
product, less any credits for price protections, promotions, etc., towards the
purchase of the new products. For this purpose, in determining whether units
in inventory were purchased after the date of execution of this Amendment, the
first units purchased by Churchill Livingstone will be deemed to have been the
first sold. The mere fact that a new version of a product is given a different
title from an existing product will not mean that it is not a new version of
the Product for purposes of Section 4. For purposes of this Section 4
Churchill Livingstone will be entitled to stock balance units purchased after
the date of execution of this Agreement from ADAM and which are sold by
Churchill Livingstone on a returnable basis, and are returned to Churchill
Livingstone within 45 days after the release of the new version, edition or
upgrade of a product. If ADAM releases a new product which reduces the size of
the market for a product sold by Churchill Livingstone, then Churchill
Livingstone may purchase the new product and stock balance the old product on
the same basis as it may for new versions, editions and upgrades to a product
it sells.
5. Price Reductions. If ADAM announces any reduction in the suggested
retail price or list price of any Product, ADAM will protect Churchill
Livingstone with respect to copies of such Products purchased by Churchill
Livingstone after the date of execution of this Amendment and held in inventory
by Churchill Livingstone on the date of announcement of the price change.
Within 45 days from the announcement of the price reduction Churchill
Livingstone will provide to ADAM a listing of all inventory including any
returns from sub-resellers. For this purpose, in determining whether units in
inventory were purchased after the date of execution of this Amendment, the
first units purchased by Churchill Livingstone will be deemed to have been the
first sold. The provisions of this Paragraph 5 will not apply to a unit if the
price change is announced more than six months after the purchase of that unit.
6. Payments Due. Churchill Livingstone agrees to bring its Accounts
Payable to ADAM up to a current status immediately by forwarding payment to
ADAM by no later than December 31, 1996, and to remain current according to the
terms of the Reseller Agreement.
7. Right to Terminate. Commencing January 1, 1997, and continuing
thereafter throughout the term of this Agreement, ADAM and Churchill
Livingstone shall each have the right to terminate the Reseller Agreement, as
amended, for any reason whatsoever by giving the other party not less than six
(6) months prior notice.
8. Rights on Termination
(a) If ADAM terminates the Reseller Agreement for any reason
whatsoever, ADAM shall repurchase from Churchill Livingstone all copies of the
Products purchased by Churchill Livingstone after the date of execution of this
Amendment and held in inventory by Churchill Livingstone on the date of
termination of the Reseller Agreement. Churchill Livingstone will be credited
the actual amount they paid for the products, less any
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credits for price protection, promotions, etc. so long as returned Products are
unopened, in merchantable condition and in their original factory sealed
packaging. For this purpose in determining whether units in inventory were
purchased after the date of execution of this amendment, the first units
purchased by Churchill Livingstone will be deemed to have been the first sold.
(b) If Churchill Livingstone terminates the Reseller Agreement for
any reason whatsoever, ADAM shall not have any obligation to repurchase
inventory from Churchill Livingstone. However, Churchill Livingstone shall be
free to continue to resell inventory on-hand at the date of termination,
subject to the provisions of Section 14 of the Reseller Agreement.
9. Effect of Amendment. Except as amended by this Amendment Agreement,
the Reseller Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have signed this Amendment on
the year and day first set forth above.
A.D.A.M. SOFTWARE, INC.
By: /s/
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CHURCHILL LIVINGSTONE INC.
By: /s/
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President