Distributor Agreement - Kofax Image Products Inc. and Cranel Inc.
DISTRIBUTOR AGREEMENT
BETWEEN
KOFAX IMAGE PRODUCTS INC.,
3 JENNER STREET
IRVINE, CALIFORNIA 92718
TEL: (714) 727-1733
FAX: (714) 727-3144
AND
CRANEL INC.
51OF East Wilson Bridge Rd.
Worthington, OH 43085
(614) 433-0045
COMMENCEMENT DATE: JULY 25, 1990
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AGREEMENT
Kofax Image Products Inc., a California corporation, with offices at 3 Jenner
St., Irvine, CA 92718, hereinafter referred to as (Kofax), and Cranel Inc., an
Ohio corporation with offices at 51OF East Wilson Bridge Rd. Worthington, OH
43085, herein after referred to as (Distributor), agree that the following terms
and conditions shall govern the sale and discounting of Products as herein
defined.
1. Definitions
1.1 Parties, Party
"Parties" means Kofax and Distributor, collectively. "Party"
means either Kofax or Distributor.
1.2 Agreement
"Agreement" means this Authorized Industrial Distributor
Agreement.
1.3 Products
The term "Product" or "Products" as used herein shall mean the
items listed on APPENDIX "A" hereto, as changed from time to time
in accordance with the provisions of this Agreement.
2. Appointment
2.1 Authorization
Kofax hereby authorizes Distributor to advertise, demonstrate,
market, promote, distribute, and solicit orders for Products on a
non-exclusive basis subject to all the terms and conditions of
this Agreement.
2.2 Use of Trademarks/Trade Names
During the term of this Agreement, Distributor is authorized to
use Kofax's trademarks, trade names and logos in connection with
Distributor's sale, advertisement and promotion of Products. Upon
termination of this Agreement, Distributor shall cease to use any
of such marks, names or logos and shall, within a reasonable
time, remove any reference to Kofax from its advertising and
promotional material.
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2.3 Non Assignability
Distributor's rights under this Agreement are personal, and may
not be assigned without the prior written authorization of Kofax.
Such authorization may be withheld for any reason.
2.4 No Authority to Make Agreements
Distributor shall not have the authority to make any agreement or
incur any Liability on behalf of Kofax. The authority of the
Distributor on behalf of Kofax is limited to the rights granted
in Paragraph 2.1 above.
2.5 No Authority to Accept Orders
Distributor shall not have the authority to accept any orders
from customers on behalf of Kofax. All such orders are subject to
approval and acceptance by Kofax at its principal place of
business.
2.6 Reserved Rights
Kofax reserves the right to market the Products in any manner and
without limitation both within and outside of the Territory.
Kofax reserves the right to change the scope of the Territory by
giving Distributor 60 days prior written notice.
3. Commencement Date & Term
3.1 Commencement Date
This agreement shall be effective, after execution by both
parties, on the commencement date specified herein.
3.2 Term
The initial term of this agreement shall be for Twelve (12)
months from the commencement date.
3.3 Renewal
This Agreement will be renewed for subsequent one year terms,
unless (1) one Party gives written notice of termination to the
other party, at least 60 days prior to the end of the initial
term or any one of the renewal terms. The initial term, and any
subsequent term, shall be subject to termination under the
provisions of Section 9.
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4. Product Changes
4.1 Product Modifications
Kofax reserves the right to modify, alter, improve, delete or
change any and all of the Products covered by this Agreement.
However, this Agreement will cover the sales of Products as they
may be modified, altered, improved, or changed.
4.2 Product Deletions
Kofax may at its discretion, and upon prior notice to
Distributor, delete Products from Appendix "A" at any time. In
the event of any such deletions, Distributor may, within thirty
(30) days after receipt of such notice, return any or all of such
Products in its inventory which have been so deleted. Any such
Products not returned within the above allotted time period,
(thirty (30) days) may no longer be returned under any
circumstances or provisions of this Agreement, nor may they be
subsequently rotatable under the provisions of paragraph 7.11
below.
All Products returned in accordance with this provision must be
returned freight pre-paid and must be previously unsold, unused,
and in their original containers. Distributor shall receive full
credit for all such Products so returned. Any such credit shall
be in the amount of the actual net invoice price paid by
Distributor for the Products less any prior credits granted by
Kofax to Distributor.
4.3 Engineering Changes
Kofax shall, if possible, give Distributor at least thirty (30)
days advance written notice of all engineering changes that will
affect form, fit or function of any Products in Distributor's
inventory. If these modifications will adversely affect the sales
of Distributor's inventory of such Products once the engineering
modifications are implemented, then Kofax shall cooperate with
Distributor to sell such affected inventory. If, after the afore-
mentioned efforts (but in no event later than one hundred twenty
(120) days after the first public announcement of such
modification or the first shipment of the modified Product,
whichever occurs first), any of the affected Product still
remains in Distributor's inventory, Kofax agrees at Distributor's
election to replace it with upgraded Products, or to rework
affected inventory for engineering changes affecting form, fit or
function.
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5. Responsibilities of Distributor
Distributor shall have the following responsibilities:
5.1 Marketing Efforts
To exert its best efforts to advertise, demonstrate, market,
promote, distribute, and solicit orders for the Products.
5.2 Promotional Cooperation
To cooperate with and assist Kofax in promotional and selling
campaigns including attending appropriate trade shows.
5.3 Promotional Materials
To distribute promotional material to Distributor's sales
offices, on a timely basis.
5.4 Product Information
To procure from Kofax and furnish to customers additional manuals
and documentation as required to support Products.
5.5 Sales Reports
To provide Kofax, within 5 working days after the end of each
Distributor's sales month, a detailed sales activities report for
sales which shall include names and zip code addresses of
purchasers, model numbers, products codes, products and
quantities purchased and dollar amounts invoiced to said
purchasers.
5.6 Complaints
To promptly report to Kofax any complaint relating to sales of
Products.
5.7 Business Expenses
To pay all of the expenses of the operation of its business,
including salaries and expenses.
5.8 Inventory
Distributor shall maintain a reasonable inventory of Products in
order to satisfy Distributor's anticipated sales and where
applicable, support thereof.
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5.9 Initial Stocking Order
Distributor is required to purchase an initial stocking order and
to take delivery of this order no later than 30 days after the
Effective Date of this Agreement.
510 Demonstration System
Distributor shall, at all times, maintain a working demonstration
system including scanner and laser printer.
5.11 Forecast
Distributor shall provide to Kofax a three month rolling forecast
for Products. This forecast is to be updated every month.
5.12 Staffing and Training
Distributor will staff and train employees as required to
demonstrate, market, promote, distribute and support Kofax
Products.
5.13 Competitive Products
To provide written notification to Kofax prior to marketing and
distributing Products which compete directly with Products sold
by Kofax.
6. Responsibilities of Kofax
In consideration of Distributor's fulfillment of the
responsibilities set forth in Section 5;
6.1 Kofax shall consistently keep Distributor informed on a timely
basis of changes and innovations in performance, serviceability,
uses and applications of all Products.
6.2 Kofax will provide Distributor with initial familiarization and
standard sales training, including materials, at no charge, for a
reasonable number of Distributor's employees at a location of
Kofax's designation. All expenses of Distributor's employees
associated with such training, such as transportation, meals and
lodging, are the responsibility of Distributor. Additional
standard technical training courses from Kofax's Training
Department are available to Distributor at standard locations,
rates and terms.
6.3 Kofax at its expense, will provide Distributor with two hundred
(200) data sheets or brochures for each Product with a part
number beginning with either KF or TK that is marketed by
Distributor (per APPENDIX A). Distributor may purchase
additional copies of the above materials at the current costs.
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Kofax will also prepare duplicate transparencies of available
photography at the Distributor's request. Cost to the Distributor
will be the reproduction cost.
7. Product Orders
7.1 Product Pricing
The prices to be paid by Distributor for any Products ordered
pursuant to this Agreement are set forth in Appendix A.
7.2 Service Pricing
The prices to be paid by Distributor for any hardware updates or
repairs for Products that are out of Warranty are set forth in
Appendix B and there are no discounts on the prices.
7.3 Purchase Orders
Distributor shall submit a written purchase order (telex or FAX
acceptable) for all Products, services, and other items ordered
from Kofax. Purchase orders shall specify Product model numbers,
quantity ordered, Product options, sales tax status, shipping
destination, carrier, and shipping dates. In order for the
purchase orders to be valid, Kofax shall acknowledge receipt and
acceptance of such purchase order. However, all orders for
Products by Distributor are subject to the terms and conditions
set forth in this Agreement. Any other terms or conditions
contained in any order from Distributor which add to or differ
from the terms of this Agreement shall be invalid.
7.4 Terms of Payment
Terms of payment for all Products, services and other items sold
to Distributor by Kofax are the net invoice amount due within 30
days from the date of each invoice submitted to Distributor by
Kofax. Kofax shall have the unqualified right to withhold
shipment of Products and services, including repair of Products
returned by Distributor, if any payments due to Kofax by
Distributor are delinquent.
7.5 Customer Billing
Distributor shall bill its customers directly. Distributor shall
be solely responsible for any losses arising from the failure of
any customer to pay the customer's account. Kofax shall have no
liability to Distributor for any bad debt arising from the sale
by Distributor of Products. Failure of Distributor to collect
shall in no way alter Distributor's payment obligations to Kofax.
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7.6 Monies, Taxes, and Duties
All prices and fees described or contemplated under this
Agreement are in U.S. dollars. Prices quoted do not include
federal, state, or local taxes, fees, duties, or licenses. All
applicable taxes, fees, duties, and licenses will be added to
the sales price and shall be paid by Distributor, (but not
including any taxes on the income or net income of Kofax) unless
Distributor furnishes an exemption certificate satisfactory to
the appropriate authorities.
7.7 Delivery
Unless otherwise agreed upon in writing by Kofax, delivery of the
Products purchased by Distributor under this Agreement shall be
made directly to Distributor and shall be FOB Kofax's place of
manufacture. All stated delivery and shipment dates are
approximate only, and will be computed from the date
Distributor's purchase order is acknowledged. Delivery dates are
given to the best of Kofax's knowledge based on conditions
existing at the time of order acknowledgment. Failure to make
shipment or delivery as quoted does not constitute a cause for
damages of any kind. If Distributor agrees to take partial
shipments of any order, each such partial shipment shall be
deemed a separate sale, and payment for such separate shipments
shall become due in accordance with the provisions of paragraph
7.3. Distributor shall designate the freight carrier to be used.
7.8 Clear Title
Kofax warrants the title to all Products to be sold to
Distributor hereunder and warrants that such Products are not
subject to any security interests, liens or other encumbrances.
7.9 Risk of Loss
From and after delivery of the Products to a carrier at Kofax's
facility, Irvine, Ca. Distributor shall be responsible for the
entire risk of Loss, theft, damage to or destruction of the
Products.
7.10 Cancellation/Reschedule
Orders accepted by Kofax are subject to cancellation or
rescheduling only upon written notice by Distributor and in
accordance with the following provision.
In the event Distributor (i) cancels any order or a portion
thereof or (ii) fails to meet any obligation hereunder causing
cancellation of any order or portion thereof, Distributor agrees
to pay Kofax cancellation charges, computed from the original
scheduled shipment date, as follows:
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NOTICE RECEIVED BY KOFAX CANCELLATION CHARGES
30 days or less prior to 25% of dollar value original scheduled
shipment date.
Unless otherwise stated, cancellation charges for outstanding
orders shall be computed based on the net dollar value of
Purchase Orders affected.
Orders may only be rescheduled twice and may not be subsequently
canceled and must thereafter be rescheduled for shipment within
sixty (60) days of the originally scheduled shipping date. Orders
not rescheduled for shipment within the above time period will be
considered canceled and become subject to the above cancellation
charges.
Distributor may not cancel or reschedule any order or portion
thereof after shipment. In the event Distributor does not accept
delivery of the Products after shipment, or causes Kofax to
withhold shipment of the Products (i.e. for nonpayment or
credit-hold) for a Period of thirty (30) days after the scheduled
delivery date, such Products will be considered canceled and
Distributor shall pay the maximum cancellation charges specified
above.
7.11 Stock Rotation
Within 30 days after the end of each March, June, September and
December during the term of this Agreement, Distributor may
return Products to Kofax for restocking only after Kofax has
given a Return Material Authorization (RMA) number to
Distributor. Distributor may only return Products which have been
shipped to the Distributor within the prior 6 months. Distributor
may return any quantity of Products to Kofax for credit provided
the total credit shall not exceed 5% of the net sales dollars
invoiced by Kofax to the Distributor during the said 6 month
period. The credit to be issued in respect of each such Product
returned shall be the actual net invoiced charged for same, less
any prior credits granted by Kofax to Distributor. All Products
returned in accordance with this provision must be returned
freight pre-paid and must be previously unsold, unused, and in
their original containers. The Distributor will place a
non-cancelable order of equal value to offset the credit issued
at the time the RMA is requested. Any demonstration unit or
non-standard special order products purchased by Distributor as
"non-cancelable/non-returnable" do not qualify for stock
rotation.
7.12 Price Protection
Kofax Agrees to provide Distributor with inventory price
protection under the following terms and conditions:
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7.12.1 Distributor acknowledges and agrees that Kofax has the
right to raise or lower prices set forth in the product Price
schedule (APPENDIX A) from time to time by giving at least 30
days prior written notice to Distributor of such intent.
7.12.2 In the event that Kofax permanently decreases the price of any
Product, Distributor will be entitled to a credit equal to the
difference between the net price paid by Distributor, less any
prior credits granted by Kofax, and the new decreased
Distributor's price for the Product multiplied by the quantity
of such Product in Distributor's inventory on the effective date
of the reduction.
Similar price adjustments will also be made on all such effected
Products then on order, or in transit to Distributor on the
effective date of such price decrease. This section does not
apply to price reductions made by Kofax where such reductions
are initiated for reasons other than permanently reducing prices
and/or are periodic and temporary in nature.
7.12.3 To obtain the credit described above, Distributor shall submit
to Kofax, not later than twenty (20) working days after the
effective date of such price decrease, a Product inventory
report as of the effective date.
7.12.4 Upon Kofax's verification of the Product inventory report, Kofax
will apply the said credit to Distributor's account, as of the
effective date of such price decrease. Kofax reserves the right
to perform a physical inventory at each Distributor location.
7.12.5 In the event of a price increase, Distributor shall continue to
receive current pricing for (a) all Products then on order and
scheduled for delivery within thirty (30) days from the
effective date of the increase; and (b) all new orders received
within the thirty (30) day notification period and scheduled for
shipment before the effective date of such price increase.
7.13 Offset
Kofax may, without notice, offset any overdue payments owed by
Distributor to Kofax against any amounts that may be owing by
Kofax to Distributor.
8. Termination
8.1 This Agreement may be terminated at any time, without cause, by
either party upon giving the other party at least sixty (60)
prior written notice. Such termination shall be effective on the
date stated in said notice.
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8.2 This Agreement may be terminated immediately for cause by either
party in the event the other party (i) shall become insolvent or
bankrupt, or (ii) admits in writing its inability to pay its
debts as they mature, or (iii) makes an assignment for the
benefit of creditors, or (iv) ceases to function as a going
concern or to conduct its operations in the normal course of
business, or (v) fails to perform any of the obligations imposed
upon it under the terms of this Agreement so as to be in default
hereunder and fails to cure such default within thirty (30) days
after written notice thereof.
8.3 In the event Kofax terminates this Agreement, Kofax shall
repurchase, within one hundred and eighty (180) days of the
effective termination date, all unsold Products in Distributors
inventory. The repurchase price for such unsold Products shall be
the actual net invoice price paid by Distributor less any prior
credits granted by Kofax to Distributor. All Products to be
repurchased pursuant to this paragraph 9.3 must be in unused,
factory-shipped condition and must be returned in original
cartons.
8.4 In the event Distributor terminates this Agreement, Kofax shall
repurchase, within one hundred and eighty (180) days of the
effective termination date, all unsold Products in Distributors
inventory. The repurchase price for such unsold Products shall be
the actual net invoice price paid by Distributor less a twenty
percent 20% restocking charge, and less any prior credits granted
by Kofax to Distributor. All Products to be repurchased pursuant
to this paragraph 9.4 must be in unused, factory-shipped
condition and must be returned in the original cartons.
8.5 Continued Support and Pricing
If Kofax terminates this Agreement other than for the default of
Distributor, Distributor shall be eligible to receive support and
pricing as specified in this Agreement for a period of 60 days
following the date on which the termination becomes effective, to
the extent such support and pricing are for the purpose of
consummating sales proposals which were in effect on the
effective date of termination. All orders subsequent to
termination, shall be on a prepaid basis.
8.6 Accrued Balances
Within 30 days after any termination of this Agreement,
Distributor must pay all outstanding account balances.
8.7 Remedies Not Limited
Neither the termination of this Agreement, nor the waiver of any
right to terminate under this Agreement, shall limit any other
remedies which Kofax may have for a default or breach by
Distributor of this Agreement or any provisions thereof.
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9. Warranty
Kofax warrants the Products in accordance with its standard
warranty terms for each particular product as set forth in
Appendix B. Distributor is authorized to pass this warranty
through to Distributor's customers.
This warranty period shall commence upon delivery of the Products
by Kofax to the Distributor and shall continue for either the
length of the warranty period plus three months (shelf life) or
the actual length of the warranty period following delivery by
Distributor to its end-user customer, whichever occurs first.
10. Defective Products
Notwithstanding any other provision of this Agreement or of any
APPENDIX hereto, Distributor may return for full credit any and
all Products found to be defective upon delivery, or within ten
(10) days thereafter; provided, however, that any such defective
Products are returned to Kofax, freight collect, within thirty
(30) days of the discovery of the defect. However, prior to any
Products being returned to Kofax, Distributor must obtain a
Return Material Authorization (RMA) Number from Kofax and place
it on the outside of the carton containing the defective Product.
10.1 In the event of such a return, Kofax shall provide Distributor
with a Return Material Authorization number, the location to
which Distributor shall return the Product or item, and the
method of transportation. In no event will Kofax accept any
returned part or Products which does not have a valid Return
Material Authorization number, nor will Kofax accept or pay for
any excess charges, (duties, freight, or taxes) which become due
in the event a returned item has been shipped in a manner not
designated by Kofax.
11. Limitation on Cause of Action
The Parties agree that any suit or other legal action or any
arbitration relating in any way to this Agreement or to Products
must be filed or officially commenced by party making a claim no
later that 2 years after the cause of the claim first arises.
12. Confidentiality
If either party hereto receives from the other party written
information which is marked "Confidential" and/or "Proprietary",
the receiving party agrees not to use such information except in
the performance of this Agreement, and to treat such information
in the same manner as it treats its own confidential information.
The obligation to keep information confidential shall not apply
to any such information that has been disclosed in publicly
available sources; is,
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through no fault of the party receiving the confidential
information, hereafter disclosed in a publicly available source;
is in the rightful possession of the party receiving the
confidential information without an obligation of
confidentiality; or is required to be disclosed by operation of
law. Except as otherwise provided herein, the obligation not to
disclose shall be for a period of one year after the termination
of this Agreement.
13. Compliance with Law
Distributor shall comply with all applicable Laws, statutes, and
regulations relating to the sale and distribution of Products,
and the performance of Distributor's duties and obligations under
this Agreement. In particular, Distributor agrees not to sell any
of the Products in any country or territory prohibited by
applicable U.S. laws, and agrees to obtain from its customers
representations that they will not resell, transfer, or assign
any of the Products to any such prohibited countries or
territories.
14. Patent/Copyright Indemnification
Kofax shall defend any suit or proceeding brought against
Purchaser based on a claim of a third party that the Product(s),
or any part thereof, furnished by Kofax constitutes an
infringement of any patent of the U.S., provided that Kofax is
notified promptly in writing and given Authority, information and
assistance (at Kofax's expense) for the defense of such a suit or
proceeding, and Kofax will pay all damages and costs awarded
against Purchaser. In case the Product(s) furnished by Kofax, or
any part thereof, is enjoined, Kofax shall, at its own expense
and option (i) procure for Purchaser the right to continue using
the Product(s), (ii) replace the same with non-infringing
Product(s), (iii) modify the Product(s) so it becomes
non-infringing, or (iv) grant the Purchaser ; 1 credit for such
equipment in accordance with the then applicable Kofax
depreciation policy and accept its return. Kofax shall not be
liable to Purchaser hereunder if the patent infringement or claim
thereof is based upon the use of the Product in connection with
other Products not delivered by Kofax, or in a manner for which
the Kofax Product(s) was not designed, or where the Product(s)
was modified by or for the Purchaser in a manner to become
infringing.
IN NO EVENT SHALL KOFAX BE LIABLE TO DISTRIBUTOR UNDER THIS
PARAGRAPH FOR CONSEQUENTIAL OR SPECIAL DAMAGES EXCEPT WHERE A
THIRD PARTY OBTAINS SUCH DAMAGES AGAINST DISTRIBUTOR. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, KOFAX SHALL HAVE NO OTHER LIABILITY
OR OBLIGATION TO DISTRIBUTOR WITH RESPECT TO PATENT OR COPYRIGHT
INFRINGEMENT MATTERS.
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15. General Indemnification
15.1 Kofax and Distributor each agrees to indemnify and hold the other
harmless from and against any and all claims, damages and
liabilities asserted by any person or entity resulting directly
from:
(i) Any breach by it, or by any of its employees or agents, of
this Agreement or any of its warranties, representations,
covenants or obligations as provided for in this Agreement.
(ii) Any negligent act, affirmative act of omission to act by it,
or any of its employees or agents.
Such indemnification shall include the payment of all reasonable
attorneys' fees and other costs incurred by the party seeking
indemnification in defending such claims.
15.2 Notwithstanding anything to the contrary in this Agreement or the
Exhibits or Appendices hereto, in no event will either party be
liable to the other for (i) special, indirect or consequential
damages or (ii) any damages whatsoever resulting from loss of
use, data or profits, arising out of or in connection with this
Agreement, whether in an action of contract or tort including
negligence.
15.3 Arbitration
All disputes concerning the terms and conditions of this
Agreement and involving less than $25,000 shall be subject to
expedited binding arbitration outside of the American Arbitration
Association ("AAA") before any attorney or expert who is
knowledgeable and experienced in the data processing equipment
and services field and who is selected by mutual agreement of the
Parties. A Party shall commence arbitration by DELIVERING written
notice to the other party. Where the parties cannot agree on an
attorney as arbitrator or fail to act within 30 days after notice
or a commencement of arbitration is delivered, arbitration shall
be by the AAA, subject to the rules of the AAA then in effect.
The AAA shall decide, as required, on the number and identity of
the arbitrators and the place of the arbitration. Judgment upon
the award rendered in any arbitration may be entered in any court
having jurisdiction of the matter.
15.4 Attorneys' Fees
If any arbitration, litigation, or other legal proceedings occur
between the parties relating to this Agreement, the prevailing
Party shall be entitled to recover (in addition to any other
relief awarded or granted) its reasonable costs and expenses,
including attorneys' fees, incurred in the proceeding.
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15.5 Notices
Unless otherwise expressly provided for, all notices, requests,
demands, consents or other communications required or pertaining
to this Agreement must be in writing and must be delivered
personally or sent by certified or registered mail (postage
prepaid and return receipt requested) to the other Party at the
address set forth below (or to any other address given by either
Party to the other Party in writing):
TO KOFAX: TO DISTRIBUTOR:
3 Jenner Street 510 F. East Wilson Bridge
Irvine, CA 92718 Worthington, OH 43085
Attention: Contracts Manager Jim Wallace
In case of mailing, the effective date of delivery of any notice,
demand, or consent shall be considered to be 5 days after proper
mailing.
15.6 Waiver and Amendment
No waiver, amendment, or modification of this Agreement shall be
effective unless in writing and signed by the Party against whom
the waiver, amendment, or modification is sought to be enforced.
No failure or delay by either Party in exercising any right,
power, or remedy under this Agreement shall operate as a waiver
of the right, power, or remedy. No waiver of any term, condition
or default of this Agreement shall be construed as a waiver of
any other term, condition, or default.
15.7 Assignment
This Agreement is binding upon and insures to the benefit of the
successors and assigns of the Parties. However, Distributor may
not assign or transfer the rights or obligations granted to it
under this Agreement without the prior written consent of Kofax.
15.8 No Third Party Rights
This Agreement is not for the benefit of any third party and
shall not be deemed to grant any right or remedy to any third
party, whether or not referred to in this Agreement.
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15.9 Headings
The section and paragraph headings of this Agreement are intended
as a convenience only, and shall not affect the interpretation of
its provisions.
15.10 Singular and Plural Terms
Where the context of this Agreement requires, singular terms
shall be considered plural, and plural terms shall be considered
singular.
15.11 Severability
If any provision(s) of this Agreement is finally held by a court
or arbitration panel of competent jurisdiction to be unlawful,
the remaining provisions of this Agreement shall remain in full
force and effect to the extent that the intent of the parties can
be enforced.
15.12 Governing Law and Forum
Unless otherwise provided, the validity, construction, and
performance of this Agreement is governed by the laws of
California. Distributor agrees that this Agreement is considered
to be entered into in Orange County, California, and that all
obligations of Kofax under this Agreement are incurred in and are
to be performed in Orange County. The parties consent to personal
jurisdiction in Orange County with respect to any arbitration or
suit brought relating to this Agreement. The Parties waive all
objections to venue to the extent permitted by law.
16. General Terms and Conditions
16.1 Relationship of the Parties
This Agreement does not constitute a partnership agreement, nor
does it create a Joint venture or agency relationship between the
Parties.
16.2 Survivorship
All obligations and duties hereunder which shall by their nature
extend beyond the expiration or termination of this Agreement,
shall survive and remain in effect beyond any expiration or
termination hereof.
16.3 Force Majeure
Neither party shall be responsible for any delay or failure in
performance of any part of this agreement or order to the extent
that such delay or failure is caused by fire, flood, explosion,
war, strike, embargo, government requirement, action
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of civil or military authority, act of God, act or omission of
carriers or the inability to obtain necessary labor, materials,
(or manufacturing facilities or any other similar causes beyond
its control. In the event of any such delay, the time of
performance that was delayed for such causes will be extended for
a period equal to the time lost by reason of the delay. Kofax
shall have the right to cancel any order placed or to refuse or
delay the shipment thereof for failure of Distributor to promptly
meet payments due Kofax or any other reasonable requirements
established by Kofax or for any acts or omissions of Distributor
which delays Kofax's performance.
16.4 Conflicting Terms
The Parties agree that the terms and conditions of this Agreement
shall prevail, notwithstanding the contrary or additional terms,
in any purchase order, sales acknowledgment, confirmation or any
other document issued by either Party effecting the purchase
and/or sale of Products.
16.5 Export Authorization
Regardless of any disclosure made by Distributor to Kofax of any
ultimate destination of the Products, Distributor will not
export, re-export or re-sell to any unauthorized end user either
directly or indirectly, any Product or system incorporating such
Product without first obtaining prior written authorization from
the U.S. Department of Commerce or any other Agency or Department
of the United States Government, as and if required.
16.6 Entire Agreement
This Agreement, including all appendices, constitutes the
complete and final Agreement between the Parties, and supersedes
all prior negotiations and agreements between the parties
concerning its subject matter.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the date first above set forth.
KOFAX IMAGE PRODUCTS INC. DISTRIBUTOR
BY: KOFAX IMAGE PRODUCTS BY: CRANEL INCORPORATED
---------------------------- ----------------------------
NAME: RICHARD M. MURPHY NAME: JAMES H. WALLACH
-------------------------- --------------------------
TITLE: V.P. SALES TITLE: PRESIDENT
------------------------- -------------------------
DATE: 7-25-90 DATE: 7-25-90
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