Distributor Contract - Tech Data Corp. and Kofax Image Products Inc.
DISTRIBUTOR CONTRACT
BETWEEN
TECH DATA CORPORATION
AND
KOFAX IMAGE PRODUCT
CONFIDENTIAL TREATMENT
<PAGE> 2
DISTRIBUTOR AGREEMENT
THIS AGREEMENT, dated this 1st day of March, 1993 (the "Effective
Date"), is between TECH DATA CORPORATION, a Florida corporation ("Tech Data"),
and KOFAX IMAGE PRODUCTS ("KOFAX").
W I T N E S S E T H:
WHEREAS, Tech Data desires to purchase certain Products from KOFAX from
time to time: and
WHEREAS, KOFAX desires to sell certain Products to Tech Data in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, KOFAX desires to appoint Tech Data as its non-exclusive
distributor to market Products within the territory defined below;
NOW, THEREFORE, in consideration of the mutual premises herein contained
and other good and valuable consideration, Tech Data and KOFAX hereby agree as
follows:
ARTICLE I. TERM OF AGREEMENT
1.1 Term of Agreement. During the term of this Agreement, KOFAX will provide
to Tech Data the Products set forth in Purchase Orders (as defined
herein) in accordance with the terms and conditions set forth in this
Agreement. The term of this Agreement shall commence on the Effective
Date and, unless terminated by either party as set forth in this
Agreement, shall remain in full force and effect for a term of one (1)
year, and may be renewed for successive one (1) year terms upon written
confirmation of both parties.
1.2 Definitions, The following definitions shall apply to this Agreement.
(a) "Applicable Specification" shall mean the functional
performance, operational and compatibility characteristics of a
Product agreed upon in writing by the parties or, in the absence
of an agreement, as described in applicable Documentation.
(b) "Documentation" shall mean user manuals, training materials,
product descriptions and specifications, technical manuals,
license agreements, supporting materials and other printed
information relating to the Products, whether distributed in
print, electronic, or video format in effect as of the date of
the applicable Purchase Order and incorporated therein by
reference.
(c) "Products" shall mean, individually or collectively as
appropriate, hardware, licensed software, Documentation,
developed Products, supplies, accessories, and other commodities
related to any of the foregoing, provided or to be provided by
KOFAX pursuant to this Agreement.
(d) "Standard Products" shall mean Products requiring no
changes, alterations, or additions, from those Products
customarily offered by KOFAX, described in brochures and by
exhibits.
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(e) "Customized Products" shall mean any Products KOFAX must
purchase requiring KOFAX to perform changes, alterations,
assembly, additions or special packaging prior to shipping to
Tech Data, as described in brochures and by exhibits.
(f) "Territory" shall mean the United States of America and its
territories and possessions.
(g) "Customers" of Tech Data shall include dealers, resellers,
commercial Customers, value added resellers and other similar
Customers, but shall not include End Users unless specifically
set forth.
(h) "End Users" shall mean final retail purchasers or licensees
who have acquired Products for their own use and not for resale,
remarketing or redistribution, unless specifically set forth in
a separate agreement.
(i) "Services" means any warranty, maintenance, advertising,
marketing or technical support and any other services performed
or to be performed by KOFAX.
1.3 Appointment as Distributor. KOFAX hereby grants to Tech Data the
non-exclusive right to distribute Products during the term of this
agreement within the Territory as herein defined. KOFAX reserves the
right to appoint other authorized distributors. Tech Data will use its
best efforts to promote sales of the Products.
ARTICLE II. PURCHASE ORDERS
2.1 Preparation of Purchase Orders. From time to time or at Tech Data's,
request KOFAX shall inform Tech Data of Products available from KOFAX
including, but not limited to, replacement Products, new releases,
enhancements or versions of existing Products. KOFAX shall use best
efforts to notify Tech Data at least thirty (30) days prior to the date
any new Product is to be introduced and shall make such Product
available to Tech Data for distribution no later than the date it is
first introduced in the market place.
2.2 Issuance and Acceptance of Purchase Orders. Tech Data may purchase and
KOFAX shall sell to Tech Data, Products as described below:
(a) Tech Data may issue to KOFAX one or more purchase orders
identifying the Products Tech Data desires to purchase from
KOFAX. Each Purchase Order may include other terms and
conditions which are consistent with the terms and conditions of
this Agreement, or which are necessary to place a Purchase
Order, such as billing and shipping information, required
delivery dates, delivery locations, and the purchase price or
charges for Products, including any discounts or adjustments for
special marketing programs. Purchase orders will be placed by
Tech Data by fax or electronically transferred and followed by a
written confirmation within five (5) working days to avoid
cancellation of the purchase order.
(b) A Purchase Order shall be deemed accepted by KOFAX unless
KOFAX notifies Tech Data in writing within five (5) days after
receiving the Purchase Order that KOFAX does not accept the
Purchase Order.
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(c) KOFAX shall accept Purchase Orders from Tech Data for
additional Products which Tech Data is contractually obligated
to furnish to its Customers and does not have in its inventory
upon the termination of this Agreement: provided Tech Data
notifies KOFAX of any and all such transactions in writing
within sixty (60) days of the termination date.
(d) This agreement shall not obligate Tech Data to purchase any
Products or services except as specifically set forth in a
written purchase order
2.3 Purchase Order Alterations or Cancellations. No less than fifteen (15)
days prior to shipment of Standard Products, KOFAX shall accept an
alteration or cancellation to a Purchase Order in order to: (i) change a
location for delivery, (ii) modify the quantity or type of Products to
be delivered or (iii) correct typographical or clerical errors. Tech
Data may not alter or cancel any Purchase Order for Customized Products
after such time as the Products have been altered to a point where such
Products are no longer capable of resale by KOFAX after reasonable
efforts.
2.4 Product Shortages. If for any reason KOFAX's production is not on
schedule, KOFAX agrees to allocate Product to Tech Data's orders based
upon a percentage equal to the same percentage as KOFAX's like Customers
purchasing like volume of same Products.
ARTICLE III. DELIVERY AND
ACCEPTANCE OF PRODUCTS
3.1 Subsidiaries. KOFAX understands and acknowledges that Tech Data may
obtain Products in accordance with this Agreement for the benefit of
subsidiaries of Tech Data. Upon prior approval from KOFAX subsidiaries
of Tech Data shall be entitled to obtain Products directly from KOFAX
pursuant to this Agreement.
3.2 Acceptance of Products. Tech Data shall have the ability to return for
credit products which have boxes that are or become damaged, unless such
damage was caused by Tech Data or for which damages Tech Data can be
reimbursed by their insurance carrier. Tech Data shall request such RMA
prior to returning any Products and KOFAX will issue said (RMA) to Tech
Data within forty-eight (48) hours of Tech Data's request, if approved
and KOFAX shall not unreasonably withhold or delay; however, if no
response is received or if KOFAX withhold the RMA without just cause for
more than five (5) business days KOFAX will then accept returned
Products absent an RMA. An offsetting purchase order for the same
Product being returned will be placed. In addition, KOFAX will supply to
Tech Data, at no charge, any and all material(s) missing from original
packaging.
Tech Data shall have the ability to return for credit products which
have boxes that are or become damaged, unless such damage was caused by
Tech Data or for which damages Tech Data can be reimbursed by their
insurance carrier. An offsetting purchase order will be placed for all
bad box returns. In addition, KOFAX will supply to Tech Data, at no
charge, any and all material(s) missing from original packaging.
3.3 Defective Products. In the event any Products are received in a
defective condition or not in accordance with KOFAX's published
specifications or the documentation relating to such Products, Tech Data
may return the Products for full credit. Products shall be
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deemed defective if the Product, or any portion of the Product, fails to
operate properly on initial "burn in", boot, or use as applicable. Tech
Data shall have the right to return any such Products that are returned
to Tech Data from its Customers or End Users within sixty (60) days of
the Products' initial delivery date to the end-user.
3.4 Transportation of Products. KOFAX shall deliver the Products to Tech
Data at the location shown and on the delivery date set forth in the
applicable Purchase Order or as otherwise agreed upon by the parties.
Charges for transportation of the Products shall be paid by Tech Data.
KOFAX shall use only those common carriers preapproved by Tech Data or
listed in Tech Data's published routing instructions, unless prior
written approval of Tech Data is received.
3.5 Title and Risk of Loss. FOB Irvine, CA. Title to Products shall pass to
Tech Data at the time that the Products are delivered to the common
carrier. All risk of loss or damage to the Products shall be borne by
KOFAX until delivery of such Products to the common carrier.
3.6 Resale of Products by Tech Data. During the term of this Agreement, Tech
Data may market, promote, distribute and resell Products to Customers of
Tech Data, either directly or through its subsidiaries, in accordance
with the following terms and conditions:
(a) KOFAX shall extend to Tech Data and each Customer of Tech
Data the same warranties and indemnifications, with respect to
Products purchased and resold hereunder as KOFAX extends to its
end-user Customers. The term of warranties and indemnities
extended by KOFAX to an End User shall commence upon delivery of
the Product to the End User.
(b) KOFAX shall make available at no charge to Tech Data all
training, technical support and other services related to the
Products that are currently offered or that may be offered by
KOFAX. KOFAX also agrees to provide Tech Data a dedicated
telephone support representative at no charge during KOFAX's
normal business hours (6:00 am to 5:30pm PST).
(c) KOFAX shall provide at no charge to Tech Data sales
training, marketing support advertising materials and technical
training in connection with the resale of Products as are
currently offered or that may be offered by KOFAX.
(d) Tech Data is hereby authorized to use trademarks and trade
names of KOFAX and third parties used in connection with the
Products, advertising, promoting or distributing the Products.
Tech Data recognizes KOFAX or other third parties may have
rights or ownership of certain trademarks, trade names and
patents associated with the Products, Tech Data will act
consistently with such rights, and Tech Data shall comply with
any reasonable, written guidelines when provided by KOFAX or
third parties relating to such trademark or trade name usage.
Tech Data will notify KOFAX of any infringement of which Tech
Data has actual knowledge. Tech Data shall discontinue use of
KOFAX's trademarks or trade names upon termination of this
agreement, except as may be needed to sell or liquidate any
final inventories of Product.
(e) KOFAX shall clearly mark each unit package with the serial
number, product description and machine readable bar code
(employing ISBN or other industry standard bar code) approved in
writing by Tech Data.
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3.7 Inventory Adjustment. Thirty (30) days after the end of each March, June
September and December during the term of this Agreement, Tech Data may
return Products to KOFAX for inventory adjustment, only after KOFAX has
given a Return Material Authorization (RMA) number to Tech Data. Tech
Data may only return Products which have been shipped to Tech Data
within the prior six (6) months. Tech Data may return any quantity of
Products to KOFAX for credit provided the total credit shall not exceed
ten percent (10%) of the net sales dollars invoiced by KOFAX to Tech
Data during the said six (6) month period. The credit to be issued in
respect of each such Product return shall be the actual net invoiced
charge for same. All Products returned in accordance with this provision
must be returned freight pre-paid and must be unused, and in their
original containers. Tech Data will place an 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
Tech Data as "non-cancelable/non-returnable" do not qualify for stock
rotation.
In addition, Tech Data shall have the right to return for full credit,
without limitation as to the dollar amount, all Products that become
obsolete or KOFAX discontinues or are removed from KOFAX's current price
list; provided Tech Data returns such Products within ninety (90) days
after Tech Data receives written notice that such Products are obsolete,
discontinued or are removed from KOFAX's price list.
3.8 Time of Performance. rime is hereby expressly made of the essence with
respect to each and every term and provision of this agreement.
3.9 Quality Control. KOFAX shall test and inspect Products prior to
shipment. KOFAX's standard inspection records, and a report setting
forth product defect percentage rates are to be maintained by KOFAX and
made available to Tech Data upon request with reasonable notice or, at
the option of Tech Data, on a quarterly basis.
ARTICLE IV. WARRANTIES,
INDEMNITIES AND LIABILITIES
4.1 Warranty. KOFAX hereby represents and warrants that it has not entered
into any agreements or commitments which are inconsistent with or in
conflict with the rights granted to Tech Data herein; the Products shall
be free and clear of all liens and encumbrances; Tech Data and its
Customers and end-users shall be entitled to use the Products without
disturbance; the Products will be free from latent and patent defects in
design, materials, and workmanship for a period of one (1) year from
date of delivery to the end-user, the Products have been listed with
Underwriters' Laboratories whenever such listing is available; the
Products meet all FCC requirements; the Products do and will conform to
all codes, Laws or regulations, are merchantable and fit for their
intended user, and the Products conform in all respects to the Product
warranties. KOFAX shall supply Tech Data, at no additional charge, all
services, parts or replacement Products necessary for KOFAX to comply
with its Product warranties. KOFAX agrees that Tech Data shall be
entitled to pass through to Customers of Tech Data and End Users of the
Products all warranties granted by KOFAX. KOFAX represents that the
Product warranties shall also include those set forth in literature,
specifications, documentation, advertising and printed material
distributed by KOFAX. KOFAX shall indemnify and hold Tech Data, its
subsidiaries, Customers and end-users and their respective successors,
officers, directors, employees and agents harmless from and against all
actions, claims, losses, damages, liabilities, awards, costs and
expenses (including a reasonable attorney's fee) resulting from or
arising out of any breach or claimed breach of the foregoing warranties.
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4.2 Proprietary Rights Indemnification. KOFAX shall defend any suit or
proceeding brought against Tech Data 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, copyright, trademark of the US or other
third party intellectual right, 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, including attorneys fees in connection
therewith. In case the Product(s) furnished by KOFAX, or any part
thereof, is enjoined, KOFAX shall, at its expense and option (i) procure
for Tech Data 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 Tech Data credit for such
equipment at the purchase price and accept its return. KOFAX shall not
be liable to Tech Data hereunder if the patent infringement or claim
hereof is based upon the use of the Product in connection with other
Products not reasonably intended for use with the Product, or in a
manner for which the KOFAX Product(s) was not designed, or where the
Product(s) was modified by or for Tech Data in a manner to become
infringing.
IN NO EVENT SHALL KOFAX BE LIABLE TO TECH DATA UNDER THIS PARAGRAPH FOR
CONSEQUENTIAL OR SPECIAL DAMAGES EXCEPT WHERE A THIRD PARTY OBTAINS SUCH
DAMAGES AGAINST TECH DATA. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KOFAX
SHALL HAVE NO LIABILITY OR OBLIGATION TO TECH DATA WITH RESPECT TO
PATENT OR COPYRIGHT INFRINGEMENT MATTERS.
4.3 Cross Indemnification. In the event any act or omission of either party
or its employees, servants, agents or representatives causes or results
in (i) loss, damage to or destruction of property of the other party or
third parties, and/or (ii) death or injury to persons including, but not
limited to, employees or invitees of either party, then such party shall
indemnify, defend and hold the other party harmless from and against any
and all claims, actions, damages, demands, liabilities, costs and
expenses, including reasonable attorneys' fees and expenses, resulting
therefrom. The indemnifying party shall pay or reimburse the other party
promptly for all such loss, damage, destruction, death or injury.
4.4 Insurance.
(a) The parties shall be responsible for providing Workman's
Compensation insurance on its employees,
(b) Without in any way limiting KOFAX's indemnification obligations as
set forth in this Agreement, KOFAX shall maintain Comprehensive General
Liability (Bodily Injury and Property Damage) Insurance in such amounts
as is satisfactory to Tech Data, including the following supplementary
coverage:
(1) Personal Injury Liability with "employee" and
contractual exclusions deleted;
(2) Product and Completed Operations Liability;
(3) KOFAX shall provide certificates of all coverage to Tech
Data naming Tech Data as additional insured and
requiring thirty (30) days prior notice to Tech Data
before termination of any such insurance.
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4.5 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING LOSS OF PROFITS,
LOSS OF BUSINESS OR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF THE
OTHER PARTY.
4.6 Unauthorized Representations. Tech Data shall have no authority to alter
or extend any of the warranties of KOFAX expressly contained or referred
to in this Agreement without prior approval of KOFAX.
4.7 Tech Data or Tech Data's Customer shall bear all costs of shipping and
risk of loss of in-warranty Products to KOFAX's location KOFAX shall
bear the costs of shipping and risk of loss of in-warranty Products back
to Tech Data or Tech Data's Customer.
4.8 Continuing Availability of Parts. KOFAX agrees to offer for sale to Tech
Data for the purpose of warranty or resale to its Customers during the
term of this Agreement for a period of five (5) years after the
expiration of this Agreement, functionally equivalent maintenance,
replacement and repair parts for all Products sold to Tech Data. If
KOFAX fails to supply such parts, then such inability shall be
considered noncompliance with this section, and in addition to whatever
other rights and remedies Tech Data may have at law or in equity, Tech
Data shall be entitled to require KOFAX to provide Tech Data with the
technical information or any other rights required on a non-exclusive
basis, so that Tech Data can have such parts manufactured or can obtain
such parts from other sources.
4.9 Disclaimer of Warranties. KOFAX has made expressed warranties in this
Agreement and in documentation, promotional and advertising materials.
EXCEPT AS SET FORTH HEREIN OR THEREIN, KOFAX DISCLAIMS ALL WARRANTIES
WITH REGARD TO THE PRODUCTS.
ARTICLE V. PAYMENT TO KOFAX
5.1 Charges, Prices and Fees for Products. Charges, prices, quantities and
discounts, if any, for Products shall be determined as set forth in
Exhibit A, or as otherwise agreed upon by the parties, and may be
confirmed at the time or order. In no event shall charges exceed KOFAX's
then current established charges. KOFAX shall have the right to increase
prices from time to time, upon written notice to Tech Data not less than
thirty (30) days prior to the effective date of such increase. All
orders placed prior to the effective date of the increase, for shipment
within thirty (30) days after the effective date, shall be at the old
price, Tech Data shall not be bound by any of KOFAX's suggested prices.
5.2 Most Favored Pricing and Terms. KOFAX represents that the prices charged
and the terms offered to Tech Data are and will be at least as low as
those charged or offered by KOFAX to any of its other domestic
distributors. If KOFAX offers price discounts, promotional discounts or
other special prices to its other distributors, Tech Data shall also be
entitled to participate and receive notice of the same no later than
other distributors.
5.3 Payment. Except as otherwise set forth herein, any undisputed sum due to
KOFAX pursuant to this Agreement shall be payable as follows: net thirty
(30) days after the invoice receipt. KOFAX shall invoice Tech Data no
earlier than the applicable shipping date for the Products covered by
such invoice. The due date for payment shall be extended during any time
the parties have a bona fide dispute concerning such payment.
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5.4 Taxes. KOFAX shall directly reimburse Tech Data for all taxes,
assessments, permits and fees, however designated which are levied upon
this Agreement or the Products, excluding franchise taxes, sales or
other use taxes and taxes based upon Tech Data's income.
5.5 Price Protection. KOFAX shall grant to Tech Data a retroactive price
credit for the full amount of any KOFAX price decrease on all Products
on order, in transit and in its inventory on the effective date of such
price decrease. Tech Data shall, within thirty (30) days after receiving
written notice of the effective date of the price decrease, provide a
list of all Products for which it claims a credit. KOFAX shall have the
right to a reasonable audit at KOFAX's expense. All orders scheduled for
shipment or in transit to Tech Data at the time of notice of the price
decrease shall be adjusted to the decreased price.
5.6 Invoices. A "correct" invoice shall contain (i) KOFAX's name and invoice
date, (ii) a reference to this Agreement, the Purchase Order or other
authorizing document, (iii) separate descriptions, unit prices and
quantities of the Products actually delivered, (iv) credits (if
applicable), (v) shipping charges (vi) name (where applicable), title,
phone number and complete mailing address of responsible official to
whom payment is to be sent, and (vii) other substantiating documentation
or information as may reasonably be required by Tech Data from time to
time.
5.7 Advertising Credit. KOFAX offers a two percent [2%] co-op program and
may offer additional advertising credits, promotional programs or
incentives to Tech Data as it offers its other distributors, then Tech
Data shall have the right at Tech Data's option, to participate in such
programs. KOFAX shall attach copy of its co-op program hereto.
5.8 KOFAX Reports. KOFAX shall, if requested, render monthly reports to Tech
Data setting forth the separate Products, dollars invoiced for each
Product, and total dollars invoiced to Tech Data for the month, and such
other information as Tech Data may reasonably request
5.9 Tech Data Reports. Tech Data shall, if requested, render monthly sales
out reports on diskette, in ASCII Comma Delimited Format. Information
provided will include: Month and year sales activity occurred, internal
product number (assigned by Tech Data), written description, State and
zip-code of Resellers location, unit cost (distributor's cost at
quantity 1), quantity and extended cost (cost times quantity). A monthly
inventory report, will be provided on a paper format once a month. The
reports will be delivered to the KOFAX at different times in the month.
ARTICLE VI. TERMINATION
6.1 Termination. Either party may terminate this agreement, with or without
cause, upon giving the other party sixty (60) days prior written notice.
In the event that either party materially or repeatedly defaults in the
performance of any of its duties or obligations set forth in this
Agreement, and such default is not substantially cured within thirty
(30) days after written notice is given to the defaulting party
specifying the default, then the party not in default may, by giving
written notice thereof to the defaulting party, terminate this Agreement
or the applicable Purchase Order relating to such default as of the date
specified in such notice of termination.
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6.2 Termination for Insolvency or Bankruptcy. Either party may immediately
terminate this Agreement and any Purchase Order by giving written notice
to the other party in the event of (i) the liquidation or insolvency of
the other party, (ii) the appointment of a receiver or similar officer
for the other party, (iii) an assignment by the other party for the
benefit of all or substantially all of its creditors, (iv) entry by the
other party into an agreement for the composition, extension, or
readjustment of all or substantially all of its obligations, or (v) the
filing of a meritorious petition in bankruptcy by or against the other
party under any bankruptcy or debtors' law for its relief or
reorganization.
6.3 Rights Upon Termination. Termination of any Purchase Order or this
Agreement shall not affect KOFAX's right to be paid for undisputed
invoices for Products already shipped. The termination of this Agreement
shall not affect any of KOFAX's warranties, indemnifications or
obligations relating to returns, credits or any other matters set forth
in this agreement that are to survive termination in order to carry out
their intended purpose, all of which shall survive this Agreement. Upon
termination of this Agreement, Tech Data shall discontinue holding
itself out as a distributor of KOFAX's Products. The expiration of the
term of this Agreement shall not affect the obligations of either party
to the other party pursuant to any Purchase Order previously forwarded
to KOFAX.
6.4 Repurchase of Products Upon Termination. In the event Tech Data
terminates this Agreement for cause or KOFAX terminates this Agreement,
KOFAX shall repurchase all the Products in Tech Data's inventory at the
original actual net invoice purchase price less any prior credits
granted by KOFAX to Tech Data; provided that the Products have been
unused, and are in their original factory sealed packages and factory
shipped condition.
In the event Tech Data terminates this Agreement without cause, KOFAX
shall have the option to repurchase all the Product in Tech Data's
inventory at the original actual net invoice purchase prices, less any
prior credits granted by KOFAX to Tech Data; provided that the Products
have been unused and are in their original factory sealed packages and
factory shipped condition.
ARTICLE VII. MISCELLANEOUS
7.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be
binding on the parties and their respective successors and assigns, but
neither party shall have the power to assign this Agreement without the
prior written consent of the other party.
7.2 Counterparts. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one single agreement
between the parties.
7.3 Headings. The Article and Section headings used in this Agreement are
for reference and convenience only and shall not enter into the
interpretation hereof.
7.4 Relationship of Parties. Tech Data is performing pursuant to this
Agreement only as an independent contractor. Nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between Tech Data and KOFAX. Neither party shall act or represent
itself, directly or by implication, as an agent of the other party.
7.5 Confidentiality. Each party acknowledges that in the course of
performance of its obligations pursuant to this Agreement, it may obtain
certain confidential and/or proprietary information. Each party hereby
agrees that all such information communicated to it by the other party,
its subsidiaries, or Customers, whether before or
<PAGE> 11
after the effective date, shall be and was received in strict
confidence, shall be used only for purposes of this Agreement, and shall
not be disclosed without the prior written consent of the other party,
except as may be necessary by reason of legal, accounting or regulatory
requirements beyond either party's reasonable control. The provisions of
this Section shall survive the term or termination of this Agreement for
any reason.
7.6 Arbitration. Any disputes arising under this Agreement shall be
submitted to arbitration in accordance with such rules as the parties
jointly agree. If the parties are unable to agree on arbitration
procedures, arbitration shall be conducted in Pinellas County, Florida
in accordance with the rules of the American Arbitration Association.
Any such award shall be final and binding upon both parties.
7.7 Notices. Wherever one party is required or permitted to give notice to
the other pursuant to this Agreement, such notice shall be deemed given
when delivered in hand, by telex or cable, or when mailed by registered
or certified mail, return receipt requested, postage prepaid, and
addressed as follows:
IN THE CASE OF KOFAX: IN THE CASE OF TECH DATA:
--------------------- -------------------------
Kofax Image Products Tech Data Corporation
3 Jenner Street 5350 Tech Data Drive
Irvine, CA 92718 Clearwater, FL 34620
Attn: Distribution Sales Manager Attn: Jennifer M. Dougan
Director of Marketing Operations
cc: Debi A. Schwatka
Contracts Administrator
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address and
the date upon which it will become effective.
7.8 Force Majeure. The term "Force Majeure" shall be defined to include
fires or other casualties or accidents, acts of God, severe weather
conditions, strikes or Labor disputes, war or other violence, or any
law, order, proclamation, regulation, ordinance, demand or requirement
of any governmental agency.
(a) A party whose performance is prevented, restricted or
interfered with by reason of a Force Majeure condition shall be
excused from such performance to the extent of such Force
Majeure condition so long as such party provides the other party
with prompt written notice describing the Force Majeure
condition immediately continues performance whenever and to the
extent such causes are removed.
(b) If, due to a Force Majeure condition, the scheduled time of
delivery or performance is or will be delayed for more than
ninety (90) days after the scheduled date, the party not relying
upon the Force Majeure condition may terminate, without
liability to the other party, any Purchase Order or portion
thereof covering the delayed Products.
7.9 Return Material Authorization Numbers. When a Return Material
Authorization Number (RMA) is required by KOFAX for returning Products,
Tech Data shall request such RMA prior to returning any Products and
KOFAX will issue said (RMA) to Tech Data within forty-eight (48) hours
of Tech Data's request; however, if no response is received or if
<PAGE> 12
KOFAX withhold the RMA without just cause for more than five (5)
business days KOFAX will then accept returned Products absent an RMA.
The net purchase price, minus any adjustments of such Products returned
to KOFAX shall be credited to Tech Data's account.
7.10 Credits to Tech Data. In the event any provisions of this Agreement or
any other agreement between Tech Data and KOFAX require that KOFAX grant
credits to Tech Data's account, and such credits are not received within
thirty (30) days then, all such credits shall become effective
immediately upon notice to KOFAX. In such event, Tech Data shall be
entitled to deduct any such credits from the next monies owed to KOFAX.
In the event credits exceed any balances owed by Tech Data to KOFAX,
then KOFAX shall issue a check payable to Tech Data within ten (10) days
of such notice.
7.11 Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under
such provision, it being the intent and agreement of the parties that
this Agreement shall be deemed amended by modifying such provision, to
the extent necessary to make it legal and enforceable while preserving
its intent.
7.12 Waiver. A waiver by either of the parties of any covenants, conditions
or agreements to be performed by the other or any breach thereof shall
not be construed to be a waiver of any succeeding breach thereof or of
any other covenant, condition or agreement herein contained.
7.13 Remedies. All remedies set forth in this Agreement shall be cumulative
and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise, and may be enforced
concurrently or from time to time.
7.14 Survival of Terms. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration.
7.15 Non-exclusive Market and Purchase Rights. It is expressly understood and
agreed that this Agreement does not grant to KOFAX or Tech Data an
exclusive right to purchase or sell Products and shall not prevent
either party from developing or acquiring other KOFAX's or Customers or
competing Products.
7.16 Specifications and Drawing. KOFAX agrees to provide upon Tech Data's
request, at no charge to Tech Data, quantities as requested by Tech Data
of the following: (1) the specifications, (2) published user
instructions, manuals and other training materials, and (3) current
manuals covering installation, operation and complete maintenance of the
Products. Tech Data shall have the right to copy or reproduce the
foregoing materials for use in connection with Tech Data's use or sale
of the Products.
7.17 Entire Agreement. This Agreement, including any Exhibits and documents
referred to in this Agreement or attached hereto, constitutes the entire
and exclusive statement of Agreement between the parties with respect to
its subject matter and there are no oral or written representations,
understandings or agreements relating to this Agreement which are not
fully expressed herein.
7.18 Governing Law. This Agreement shall have Florida as its situs and shall
be governed by and construed in accordance with the laws of the State of
Florida.
<PAGE> 13
7.19 Software Licenses. Whenever the Products described in this Agreement
shall include software licenses, KOFAX hereby grants to Tech Data a
non-exclusive license to market, demonstrate and distribute the software
to Customers of Tech Data. Tech Data agrees to comply with KOFAX's
reasonable software license agreements, and agrees to use reasonable
efforts to protect KOFAX's software, including using reasonable efforts
to avoid allowing Customers, individuals, or employees to make any
unauthorized copies of KOFAX's licensed software; to modify, disassemble
or decompile any software; to remove, obscure or after any notice of
patent, trademark, copyright or trade name; or authorize any person to
do anything that Tech Data is prohibited from doing under this
Agreement. Provided, however, KOFAX shall provide Tech Data with copies
of appropriate software and documentation, at no charge, for the purpose
of effectively demonstrating equipment to Customers. This demonstration
software shall be updated as appropriate to insure that current software
is available for sales demonstration. Tech Data acknowledges that no
title or ownership of the proprietary rights to any software is
transferred by virtue of this Agreement. Tech Data will use reasonable
efforts to protect KOFAX's rights under this section but Tech Data is
not authorized and shall not be required to instigate legal action on
behalf of KOFAX or its suppliers against third parties for infringement.
Tech Data will notify KOFAX of any infringement of which it has actual
knowledge.
7.20 International Business. KOFAX acknowledges that Tech Data may desire to
obtain Products or Systems for use in countries outside the United
States and its territories. The parties acknowledge that in such case it
may be necessary to enter into additional agreements between KOFAX and
Tech Data and/or the respective subsidiaries, agents, distributors or
subsidiaries authorized to conduct business in such countries or to
negotiate further terms and conditions to provide for such right. The
parties intend that any further agreements or terms and conditions will
be consistent with and based upon the applicable terms and conditions of
this Agreement, subject, however, to requirements of local law and local
business practice. All Products obtained pursuant to this Section shall
be deemed for purposes of calculating accumulated purchases and any
discounts set forth in this Agreement, to have been obtained pursuant to
this Agreement.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
KOFAX IMAGE PRODUCTS TECH DATA CORPORATION
By: /s/ RICK MURPHY By: /s/ PEGGY K. CALDWELL
------------------------- ---------------------------
Printed Name: RICK MURPHY Printed Name: PEGGY K. CALDWELL
Title: Vice President, Sales Title: Senior Vice President
Marketing
Date: Date: 3/1/93
<PAGE> 14
MODIFICATION AGREEMENT
This Modification Agreement is effective as of the 24th day of September, 1996
(the "Effective Date") is between Tech Data Corporation, a Florida corporation
("Tech Data") and Kofax Image Products, a Delaware corporation ("Kofax").
RECITALS
A. Tech Data and Kofax entered into a Distributor Agreement, dated March 1,
1993, (the "Original Agreement") pursuant to which Tech Data acts as a
distributor of Kofax's Products.
B. Tech Data and Kofax desire to modify certain terms of the Original
Agreement in accordance with this Modification Agreement. The Original
Agreement as modified by this Modification Agreement is hereinafter
referred to as the "Agreement."
NOW THEREFORE, in consideration of mutual promises herein contained and other
good and valuable consideration, Tech Data and Kofax hereby agree as follows:
1. Modification. The Original Agreement is hereby modified and amended as stated
in this section 1.
a. Section 1.1 of the Original Agreement is hereby revised in its
entirety to read as follows:
1.1 Term of the Agreement. The term of this Agreement shall
automatically renew for successive one (1) year terms unless prior
written notification of termination is delivered by one of the parties
to the other in accordance with the notice provision of this Agreement.
b. Section 2.3 of the Original Agreement is hereby revised in its
entirety to read as follows:
2.3 Purchase Order Alterations or Cancellations, No less than 5 working
days prior to shipment of Products, Kofax shall accept alterations or
cancellation to a purchase order in order to: (i) change a location for
delivery, (ii) modify the quantity or type of Products to be delivered
or (iii) correct typographical or clerical errors.
c. Section 3.2 of the Original Agreement is hereby revised in its
entirety to read as follows:
3.2 Acceptance of Products. Tech Data shall, after a reasonable time to
inspect each shipment, accept Product (the "Acceptance Date") if the
Products and all necessary documentation delivered to Tech Data are in
accordance with the purchase order. Any Products not ordered or not
otherwise in accordance with the purchase order, (e.g. mis-shipments,
overshipments) may be returned to Kofax at Kofax's expense (including
without limitation costs of shipment or storage). Tech Data shall not be
required to accept partial shipment unless Tech Data agrees prior to
shipment.
In addition, Tech Data shall return for credit Products which have boxes
that are or become damaged. Kofax will supply to Tech Data, at no
charge, any and all material(s) which are missing in the original
Product package. Tech Data shall provide an offsetting purchase order
for such bad box returns.
d. Section 3.7 of the Original Agreement is hereby revised in its
entirety to read as follows:
3.7 Inventory Adjustment. In the first month of each calendar quarter,
Kofax agrees to accept return of overstocked Products, provided such
returns shall not exceed the value of fifteen percent (15%) of the prior
quarter's purchases. Shipments of Product being returned shall be new,
unused and in sealed cartons. Kofax shall credit Tech Data's account in
the amount of the price paid by Tech Data therefor less any price
protection credits but not including any early payment or prepayment
discounts (the "Return Credit").
<PAGE> 15
In addition, Tech Data shall have the right to return for full credit,
without limitation as to the dollar amount, all Products that become
obsolete or Kofax discontinues or are removed from Kofax's current price
list; provided Tech Data returns such Products within ninety (90) days
after Tech Data receives written notice from Kofax that such Products
are obsolete, superseded by a newer version, discontinued or are removed
from Kofax price list.
e. Section 5.3 of the Original Agreement is hereby revised in its
entirety to read as follows:
5.3 Payment. Except as otherwise set forth in this Agreement, any
undisputed sum due to Kofax pursuant to this Agreement shall be payable
net forty-five (45) days after the invoice date. Kofax shall invoice
Tech Data no earlier than the applicable shipping date for the Products
covered by such invoice. Products which are shipped from outside the
United States, shall not be invoiced to Tech Data prior to the Products
being placed on a common carrier within the United States for final
delivery to Tech Data. The due date for payment shall be extended during
any time the parties have a bona fide dispute concerning such payment.
f. Section 5.9 of the Original Agreement is hereby revised in its
entirety to read as follow:
5.9 Tech Data Reports. Tech Data shall, if requested, render monthly
sales out reports on diskette, in ASCII Comma Delimited Format.
Information provided will include: Month and year sales activity
occurred, internal product number (assigned by Tech Data), written
description, Customer name and zip code, unit cost (distributor's cost
at quantity 1), quantity and extended cost (cost times quantity). Kofax
agrees that the Customer names provided by Tech Data are for purposes of
commission reporting only, will be kept confidential by Kofax, and will
not be used in any other manner. A monthly inventory report will be
provided on a paper format.
g. Section 6.4 of the Original Agreement is hereby revised in its
entirety to read as follows:
6.4 Repurchase of Products Upon Termination or Expiration. Upon the
effective date of termination or expiration of this Agreement for any
reason, Kofax agrees to repurchase all Products in Tech Data's inventory
or which are returned to Tech Data within sixty (60) days following the
effective date of termination or expiration. Kofax will repurchase the
Products at the original purchase price; less any deductions for price
protection. The repurchase price shall not be reduced by any deductions
or offsets for early pay or prepay discounts. Such returns shall not
reduce or offset any co-op payments or obligations owed to Tech Data.
Tech Data shall submit to Kofax, within sixty-five (65) days after the
termination or expiration date, the quantity of Product that Tech Data
will be returning to Kofax for repurchase. Kofax will issue a Return
Material Authorization (RMA) to Tech Data for all such Products;
provided, however, that Kofax shall accept returned Products in
accordance with this Section absent an RMA if Kofax fails to issue said
RMA within five (5) business days of Tech Data's request. Kofax shall
credit any outstanding balances owed to Tech Data. If such credit
exceeds amounts due from Tech Data, Kofax shall remit in the form of a
check to Tech Data the excess within thirty (30) days of receipt of the
Product. Customized Products shall not be eligible for repurchase
pursuant to this Section.
h. 7.7 Notices is hereby updated as follows:
In the case of Tech Data, notices shall be sent Attn: V.P. of Marketing
Operations., cc: Contracts Administration.
i. Section 7.21 is hereby added and shall read as follows:
7.21 Financial Statements.
Kofax agrees that for the term of this Agreement, Kofax shall provide
financial statements annually. Kofax shall provide other additional
financial information upon reasonable request by Tech Data.
2. Entire Agreement. The Agreement, including any Exhibits and Schedules
attached hereto or thereto, constitute the entire agreement between Tech Data
and Kofax concerning the subject matter hereof and supersedes all prior
agreements between the parties.
<PAGE> 16
3. Ratification. Except as modified by this Modification Agreement, the parties
hereby ratify and confirm all terms and conditions of the Original Agreement.
IN WITNESS WHEREOF, each party has signed this Modification Agreement on the day
and year written above effective as of the Effective Date.
KOFAX IMAGE PRODUCTS TECH DATA CORPORATION
A Delaware corporation a Florida corporation
By: /s/ By: /s/
------------------------------ --------------------------------
Printed Name: Printed Name:
Title: Title: Senior Vice President & CFO
Date: Date: 10/23/96
<PAGE> 17
[KOFAX LETTERHEAD]
October 16, 1996
Ms. Kathy Benefield
Contracts Administrator
Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Dear Kathy:
This letter is written to amend the Distributor Agreement dated March 1, 1993.
Kofax Image Products desires to modify Section 1.2 (f) of the agreement to read:
"Territory" shall mean the United States of America and its territories
and possessions and Canada.
All other terms and conditions of the said Agreement will remain unchanged.
KOFAX IMAGE PRODUCTS TECH DATA CORPORATION
/s/ /s/
-------------------------------- -----------------------------------
Signature, Title Vice President Signature, Title
10-16-96 10/23/96
-------------------------------- -----------------------------------
Date Date
<PAGE> 18
ADDENDUM TO DISTRIBUTOR AGREEMENT
Tech Data Corporation
This addendum is written to amend the Distributor Agreement dated March 1, 1993.
WHEREAS Kofax desires to appoint Tech Data as its non-exclusive distributor to
market its new NetScan Product within the territory defined as Canada, The
United States of America and its territories and possessions, and
WHEREAS Tech Data desires to sell the Kofax NetScan products within the
territory defined above,
Kofax hereby amends the Distribution Agreement to incorporate the NetScan
product into Tech Data's product line. The pricing of the product at it's
introduction is established as:
List Price [*]
Tech Data Discount [*]
All other terms and conditions of the said Agreement will remain unchanged.
KOFAX IMAGE PRODUCTS TECH DATA CORPORATION
/s/ /s/
-------------------------------- -----------------------------------
Signature, Title Signature, Title
8-8-96 10/23/96
-------------------------------- -----------------------------------
Date Date
* Confidential portions omitted and filed separately with the
Securities and Exchange Commission.