<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON DC 20549
FORM 10-QSB
(Mark One)
X QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
--- SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
TRANSITION REPORT UNDER SECTION 13 OR 15 (d) OF THE
--- SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
------ ------
Commission File No. 0-27780
U-SHIP, INC.
(Exact name of registrant as specified in its charter)
Utah 39-1713181
- ---------------------------- ---------------------------------
(State or Other Jurisdiction (IRS Employer Identification No.)
of Incorporation or Organization)
5583 West 78th Street, Edina, MN 55439
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(Address of Principal Executive Offices)
Registrant's Telephone Number, Including Area Code: (612) 941-4080
Check whether the issuer: (1) filed all reports required to be filed bay Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
YES (X) NO ( )
As of October 30, 1996 the issuer had outstanding 4,017,015 shares of Common
Stock, $.004 par value.
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PART I. - FINANCIAL INFORMATION
ITEM 1 - CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
U-SHIP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
September 30, June 30,
1996 1996
------------ ------------
(UNAUDITED)
CURRENT ASSETS:
Cash and cash equivalents. . . . . . . . . . $ 2,676,692 $ 4,822,785
Accounts receivable. . . . . . . . . . . . . 78,979 59,135
Prepaid expenses . . . . . . . . . . . . . . 19,442 12,208
Inventories. . . . . . . . . . . . . . . . . 901,203 822,393
----------- -----------
Total current assets. . . . . . . . . . 3,676,316 5,716,521
PROPERTY AND EQUIPMENT:
Shipping centers . . . . . . . . . . . . . . 156,907 87,045
Furniture, fixtures and equipment. . . . . . 430,250 365,003
Less-Accumulated depreciation. . . . . . . . (249,404) (230,704)
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Total property and equipment, net . . . 337,753 221,344
OTHER ASSETS. Net. . . . . . . . . . . . . . . . 78,737 76,964
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$ 4,092,806 $ 6,014,829
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See accompanying notes which are an integral part of these balance sheets.
2
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U-SHIP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
September 30, June 30,
1996 1996
---- ----
(UNAUDITED)
<S> <C> <C>
CURRENT LIABILITIES:
Current maturities of long-term debt and notes payable. . . . . $ 39,421 $ 28,173
Checks issued not yet presented for payment . . . . . . . . . . - 1,851,365
Deferred Revenue. . . . . . . . . . . . . . . . . . . . . . . . 304,946 419,702
Accounts payable. . . . . . . . . . . . . . . . . . . . . . . . 242,233 194,227
Accrued liabilities . . . . . . . . . . . . . . . . . . . . . . 317,110 250,353
------------ ------------
Total current liabilities. . . . . . . . . . . . . . . . . . 903,710 2,743,820
LONG-TERM DEBT, net of current maturities. . . . . . . . . . . . 58,259 30,263
------------ ------------
SHAREHOLDERS' EQUITY
Preferred stock, $.004 par value;
25,000,000 shares authorized; none issued and outstanding . . . - -
Common stock, $.004 par value; 75,000,000 shares authorized;
4,017,015 and 3,916,573 issued and outstanding. . . . . . . . . 16,068 15,666
Additional paid-in capital. . . . . . . . . . . . . . . . . . . 8,850,646 8,548,875
Warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,500 19,500
Accumulated deficit. . . . . . . . . . . . . . . . . . . . . (5,755,377) (5,343,295)
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Shareholders' equity. . . . . . . . . . . . . . . . . . . . . . 3,130,837 3,240,746
------------ ------------
$ 4,092,806 $ 6,014,829
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------------ ------------
</TABLE>
See accompanying notes which are an integral part of these balance sheets.
3
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U-SHIP, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended September 30,
--------------------------------
1996 1995
---- ----
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
REVENUE
Package Shipping Revenue. . . . . . . . . . . . . . . . . . . . $ 130,364 $ 61,220
Machine Sales Revenue . . . . . . . . . . . . . . . . . . . . . 61,547 47,468
Other Revenue . . . . . . . . . . . . . . . . . . . . . . . . . 4,875 3,593
----------- -----------
Net Sales. . . . . . . . . . . . . . . . . . . . . . . . . . 196,786 112,281
Cost of Goods Sold . . . . . . . . . . . . . . . . . . . . . . . (170,525) (85,166)
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Gross Profit . . . . . . . . . . . . . . . . . . . . . . . . . . 26,261 27,115
General and Administrative . . . . . . . . . . . . . . . . . . . 416,644 216,514
Research and Development . . . . . . . . . . . . . . . . . . . . 64,410 48,901
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Loss from Operations . . . . . . . . . . . . . . . . . . . . . . (454,793) (238,300)
Interest Income. . . . . . . . . . . . . . . . . . . . . . . . . (45,450) -
Interest Expense . . . . . . . . . . . . . . . . . . . . . . . . 2,739 40,473
----------- -----------
Net Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (412,082) $ (278,773)
----------- -----------
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Net Loss Per Share . . . . . . . . . . . . . . . . . . . . . . . $ (0.10) $ (0.15)
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Weighted Average Number of
Common Shares Outstanding . . . . . . . . . . . . . . . . . . 4,014,610 1,804,397
----------- -----------
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</TABLE>
See accompanying notes which are an integral part of these consolidated
statements.
4
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U-SHIP, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Three Months Ended September 30,
--------------------------------
1996 1995
---- ----
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
OPERATING ACTIVITIES:
Net Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (412,082) $ (278,773)
Adjustment to reconcile net loss to net cash flows used for
operating activities:
Depreciation and amortization. . . . . . . . . . . . . . . 49,403 29,944
Change in current operating items:
Checks held, not yet presented for payment . . . . . . . . . (1,851,365) 8,704
Accounts receivable. . . . . . . . . . . . . . . . . . . . . (19,844) 1,950
Inventories. . . . . . . . . . . . . . . . . . . . . . . . . (78,810) (16,478)
Prepaid expenses and other . . . . . . . . . . . . . . . . . (7,234) 4,099
Accounts payable . . . . . . . . . . . . . . . . . . . . . . 48,006 (117,794)
Accrued liabilities and deferred revenue . . . . . . . . . . (47,999) 139,942
----------- -----------
Cash used for operating activities . . . . . . . . . . . . (2,319,925) (228,406)
----------- -----------
INVESTING ACTIVITIES:
Purchases of property and equipment . . . . . . . . . . . . . . (167,585) (5,388)
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FINANCING ACTIVITIES:
Proceeds from notes payable and long-term debt. . . . . . . . . 48,786 119,000
Payments on notes payable and long-term debt. . . . . . . . . . (9,542) (4,560)
Sale of common stock. . . . . . . . . . . . . . . . . . . . . . 302,173 77,501
----------- -----------
Cash provided by financing activities. . . . . . . . . . . . 341,417 191,941
----------- -----------
NET DECREASE IN CASH AND CASH EQUIVALENTS. . . . . . . . . . . . (2,146,093) (41,853)
----------- -----------
CASH AND CASH EQUIVALENTS, beginning of period . . . . . . . . . 4,822,785 41,853
----------- -----------
CASH AND CASH EQUIVALENTS, end of period . . . . . . . . . . . $ 2,676,692 -
----------- -----------
----------- -----------
CASH PAID DURING THE PERIOD FOR:
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 2,739 9,924
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----------- -----------
Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . - -
----------- -----------
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</TABLE>
See accompanying notes which are an integral part of these consolidated
statements.
5
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U-SHIP, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The condensed consolidated financial statements included herein have been
prepared by U-Ship, Inc. which, together with its wholly owned subsidiaries,
shall be referred to herein as the "Company," without audit, pursuant to the
rules and regulations of the Securities and Exchange Commission. The
Company's business is seasonal and, accordingly, interim results are not
indicative of results for a full year. In the opinion of the Company, all
adjustments consisting only of normal recurring adjustments, necessary to
present fairly the financial position of the Company as of September 30,
1996, and the results of its operations for the three months ended September
30, 1995, have been included. Certain information in footnote disclosures
normally included in financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations, although the Company believes that
the disclosures are adequate to make the information presented not
misleading. It is suggested that these consolidated financial statements be
read in conjunction with the financial statements for the year ended June 30,
1996, and the footnotes thereto, included in the Company's Form 10-KSB, filed
with the Securities and Exchange Commission on September 26, 1996.
1. Basis of Presentation:
Principles of consolidation - The consolidated financial statements include
the accounts of U-Ship, Inc. and its wholly owned subsidiaries. All
inter-Company balances and transactions have been eliminated in the
consolidation.
2. Net Loss Per Share:
Net loss per share was computed by dividing net loss by the weighted average
number of shares of common stock and common stock equivalents outstanding
each period. Common stock equivalents include the effect of options and
warrants which are assumed to be exercised or converted into common stock at
the beginning of the period. Pursuant to Securities and Exchange Commission
rules, shares of stock sold and stock options and warrants granted within one
year of the date of the June 1996 public offering have been included in the
calculation of common share equivalents, using the treasury stock method, as
if they were outstanding for all periods presented. Shares canceled within
one year of the June 1996 public offering have been reflected as if they had
been canceled for all periods presented.
3. Inventories:
Inventories are stated at the lower of first-in, first-out (FIFO) cost or
market. Inventories consist of shipping systems in various stages of
completion, including component parts. The components of inventory are:
September 30, June 30,
1996 1996
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(UNAUDITED)
Raw materials and work components $ 719,542 $ 490,342
Finished goods at customer sites 181,661 332,051
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$ 901,203 $ 822,393
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4. Revenue Recognition:
The Company generates revenue from two primary sources: the sale of automated
shipping centers and the per package shipping revenue generated from ongoing
shipping volume. Revenues are also derived, to a lesser extent, from the sale
of shipping supplies and maintenance contracts.
The Company generally recognizes revenue from sales of shipping systems upon
delivery and installation. Certain sales agreements allow the customer to
return the shipping system under certain circumstances within the first 12
months. Such revenue and related costs are deferred until the return rights
lapse.
6
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Package shipping revenue is recognized when the package is shipped. Revenue
from maintenance contracts is deferred and recognized over the period of the
related agreement.
The components of deferred revenue are as follows:
September 30, June 30,
1996 1996
------------ ------------
(UNAUDITED)
Machine sales $ 234,174 $ 313,496
Maintenance contracts 70,772 106,206
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$ 304,946 $ 419,702
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Most of the automated shipping center sales are financed by third-party
equipment lessors. The lessor has certain recourse to the Company in the event
of customer default or return of the automated shipping center, primarily to
remarket the automated shipping center on a best efforts basis. The Company has
reserved the estimated cost of fulfilling such recourse arrangements.
7
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ITEM 2 - MANAGEMENTS DISCUSSION AND ANALYSIS
U-SHIP, INC. AND SUBSIDIARIES
THE FOLLOWING DISCUSSION CONTAINS VARIOUS FORWARD-LOOKING STATEMENTS AS
DEFINED IN THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995, WHICH MAY BE
IDENTIFIED BY THE USE OF FORWARD-LOOKING TERMINOLOGY SUCH AS "MAY,"
"EXPECT," "ANTICIPATE," "ESTIMATE," "GOAL," "CONTINUE," OR OTHER COMPARABLE
TERMINOLOGY. SUCH STATEMENTS ARE SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES
RELATING TO THE COMPANY'S FUTURE PERFORMANCE. ACTUAL RESULTS OR EVENTS MAY
MATERIALLY DIFFER FROM THOSE INDICATED IN SUCH FORWARD-LOOKING STATEMENTS.
IN EVALUATING SUCH FORWARD-LOOKING STATEMENTS, SHAREHOLDERS AND PROSPECTIVE
INVESTORS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON SUCH FORWARD-LOOKING
STATEMENTS AND ARE SPECIFICALLY DIRECTED TO REVIEW THE VARIOUS FACTORS
IDENTIFIED UNDER THE CAPTION "CAUTIONARY FACTORS" WHICH COULD CAUSE ACTUAL
RESULTS TO DIFFER MATERIALLY FROM THOSE INDICATED IN SUCH FORWARD-LOOKING
STATEMENTS.
GENERAL
The Company currently operates 162 U-Ship Automated Shipping Centers-TM-
("ASCs") in 24 states. The first ASC was placed in service in November 1994.
To become profitable, the Company must significantly increase revenues from the
placement of ASCs in the market place, from which the Company expects increased
package shipping revenue.
The Company has evolved from a product/technology company selling a
shipping product into a service company offering quality shipping services
through the use of technology. The Company's focus has shifted from selling
ASCs to placing ASCs in strategic retail locations at the Company's expense and
operating them to maximize the Company's revenue. Under this plan, the Company
continues to pay a percentage of package shipping revenue to the retail location
where the ASC is placed, but the Company retains a greater share of the shipping
revenue.
A key piece of the Company's strategy is to select targeted locations for
its ASCs. The Company is now concentrating on placing ASCs in locations that
have already established a shipping service. By concentrating on existing
shipping sites, the Company believes that it can better reach its target
markets, the small office and home office markets. The Company believes that
small business and home office shippers are frequent shippers, and are more
likely to use premium shipping services, such as next day delivery, which
provide a higher profit margin to the Company. By placing machines in
locations where consumers are already going for shipping services, the
Company believes that it is able to capture these frequent shippers without
the expense of a consumer marketing program. In addition, such locations are
already processing a high volume of packages and, as a result, the Company
believes that such locations will get the greatest benefit from the
automation that U-Ship provides.
In September 1996, the Company entered into an agreement with Kinko's,
Inc. ("Kinko's") to install up to 250 ASCs by December 1997 (the
"Agreement"). The Agreement provides that Kinko's will use its best efforts
to provide the Company with the opportunity to install ASCs in up to 250
Kinko's stores by December 31, 1997. Pursuant to the Agreement, each
installation, shall remain in operation for a period of three years from the
date of installation, subject to certain contingencies. Under the Agreement,
the Company will retain ownership of the ASCs installed at the Kinko's sites,
and package shipping revenue generated at each site will be shared between
the Company and Kinko's.
RESULTS OF OPERATIONS
Package shipping revenue for the three months ended September 30, 1996,
increased $69,144 or 113% to $130,364, from $61,220 for the same period in 1995.
Net Sales for the three months ended September 30, 1996, increased $84,505 or
75% to $196,786 from $112,281 for the same period in 1995. These increases are
due primarily to the Company's increasing number of locations and building
recurring revenue through increasing package shipping revenue. Package
shipping revenue accounted for 66% of net sales in the quarter ended September
30, 1996 compared to 55 % for the same period in the previous year. This
reflects the Company's focus to own and operate ASCs and generate package
shipping revenues, and decrease dependence on selling ASC equipment.
8
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Gross margins on package shipping revenue increased to 25.5%, for the
three months ended September 30, 1996, from 24.6% for the same period in
1995. Gross margins on ASC equipment sales decreased to 24.0% for the three
month period ended September 30, 1996, from 35.4%, for the same period in
1995. The lower percentage of net sales generated from ASC equipment sales
and lower gross margins decreased gross profit to $26,261, for the three
months ended September 30,1996, from $27,115, for the same period in 1995.
General and administrative expenses for the three months ended September
30, 1996, increased $200,130, or 92% to $416,644 from $216,514. Personnel
expenses accounted for $102,408 of the increase and additional increases in
general and administrative expenses particularly ASC depreciation and
installation expense, accounted for the remaining increase.
Interest income increased to $45,450 for the three months ended September
30,1996, as a result of the investment of cash surpluses generated from the
company's public offering. Interest expense decreased from $40,473 for period
ended September 30, 1995 to $2,739 for the same period in 1996. The decrease is
the result of a reduction in short term debt of $1,027,996 from September 30,
1995 to September 30, 1996.
Net loss for the three months ended September 30, 1996, increased $133,309,
to $412,082, from $278,773. Although the Company expects to improve operating
results, the Company expects to incur additional losses as it continues to
invest in expanding its network of ASCs.
LIQUIDITY AND CAPITAL RESOURCES
Pursuant to an Underwriting Agreement, dated May 29, 1996, between the
Company and R.J. Steichen & Company, R.J. Steichen exercised its option to
purchase 100,000 shares of the Company's common stock at $3.50 per share. The
Company received net proceeds of $300,524 as a result of this option
exercise.
On July 1, 1996, the Company repaid short term debt, including interest,
consisting of bridge notes of $1,620,625, and bank debt of $297,050. Pursuant
to the bridge loan transaction, the Company accepted conversion of $438,887 of
debt into 156,754 shares of the Company's common stock.
Inventory levels increased by $78,810, as of September 30, 1996, compared
to June 30,1996 fiscal year end, in preparation for the agreements to install
ASCs within the next 90 days.
On September 30, 1996, the Company entered into an agreement with Kinko's
to install up to 250 ASCs in Kinko's Copy Centers by December 1997. The
Company, under the Agreement may be committed to manufacture and install up
to 250 ASCs at a cost of approximately $1,250,000. The Company anticipates
using current funds available, together with internally generated cash flow
to fund this contract obligation. The Company will seek commercial financing
from third parties for all or a portion of the installations proposed.
There can be no assurance that such financing will be available to the
Company at terms satisfactory to it.
Based on current commitments, the Company believes that it will require
additional debt or equity funds within the next 12 months to continue to
penetrate the market for automated shipping.
CAUTIONARY FACTORS
THE COMPANY WISHES TO CAUTION SHAREHOLDERS AND PROSPECTIVE INVESTORS THAT
THE FOLLOWING IMPORTANT FACTORS, AMONG OTHERS, COULD IN THE FUTURE AFFECT THE
COMPANY'S ACTUAL OPERATING RESULTS, AND THAT SUCH RESULTS COULD DIFFER
MATERIALLY FROM THOSE EXPRESSED IN ANY FORWARD-LOOKING STATEMENTS MADE BY THE
COMPANY. THE STATEMENTS UNDER THIS CAPTION ARE INTENDED TO SERVE AS CAUTIONARY
STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995. THE FOLLOWING INFORMATION IS NOT INTENDED TO LIMIT IN ANY WAY THE
CHARACTERIZATION OF OTHER STATEMENTS OR INFORMATION UNDER OTHER CAPTIONS AS
CAUTIONARY STATEMENTS FOR SUCH PURPOSE. THE ORDER IN WHICH SUCH FACTORS APPEAR
BELOW SHOULD NOT BE CONSTRUED TO INDICATE THEIR RELATIVE IMPORTANCE OR PRIORITY.
9
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LIMITED OPERATING HISTORY; LOSSES FROM OPERATIONS; GOING CONCERN UNCERTAINTY
The Company entered it current business in 1992 and has had a limited
operating history. The Company's proposed operations are subject to all the
risks inherent in the establishment of a new business. The Company has never
generated net income, continues to sustain substantial operating losses and
expects to continue to operate at a loss thorough its current fiscal year.
For the fiscal year ended June 30, 1996, the Company incurred net losses of
$2,184,287. As of June 30, 1996, the Company had working capital of
$2,972,701. As of June 30, 1996, the Company had an accumulated deficit of
$5,343,295. The report of the Company's independent public accountants
concerning the Company's financial statements as of June 30, 1995 and 1996
contain explanatory paragraphs relating to the Company's ability to continue
as a going concern. There can be no assurance that the Company will achieve
profitable operations.
MARKET ACCEPTANCE OF PRODUCTS
A prerequisite to the Company's success will be the development of demand
for self-service, automated shipping services and wide placement of the
Company's ASCs at retail and other business locations. This is an undeveloped
market and there can be no assurance that such demand will develop.
Furthermore, even if demand does arise, there can be no assurance that the
Company's product will gain broad market acceptance. The commercial (non-U.S.
Postal Service) package shipping market is dominated by a relatively small
number of established carriers, which, together with the U.S. Postal Service,
process the vast majority of consumer and small business package shipping
transactions. There can be no assurance that any of such dominant commercial
package shippers or the public will adopt a self-service shipping center concept
or that they will select the Company's ASC in preference to the shipping
services offered by its competitors or potential competitors.
DEPENDENCE UPON CARRIERS
The Company is dependent upon the United Parcel Service ("UPS") to pick up
and transport packages processed via the Company's ASCs. Any interruption in,
or increase in price of, such service, or the failure of the Company to continue
to maintain arrangements with UPS or to develop relationships with other package
carriers, would cause an interruption of service to the Company's customers and
would have a material adverse effect upon its business. The Company has no
control over the nature, cost or availability of services provided by any
carrier and has no long term contracts with such carriers.
SUBSTANTIAL INVESTMENT IN EQUIPMENT
As a part of its business strategy, the Company seeks to place ASCs, at
its own expense, in locations that have the potential to generate high
package volume and with businesses that have multiple strategic locations,
such as business centers, grocery stores and other service provider chains.
Although the Company was able to sell ASCs with financing from third party
lessors, no assurance can be given that such financing will be available in
the future. In addition, the Company recently adopted a plan of placing ASCs
in service at its own expense.
Although the Company believe that such a strategy will lead to the
generation of high package shipping volume and that such placements of ASCs is
cost-effective, there can be no assurance that this strategy will be successful
or that the Company will be able to recover its investments in the ASCs placed
in service pursuant to this program either through profit margins or higher
volumes of package shipments.
10
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COMPETITION
The commercial (non-U.S. Postal Service) package shipping market is
dominated by a relatively small number of companies which have more experience
in the industry and have greater financial and technical resources than the
Company. Both FedEx, Inc. and UPS have test marketed automated self-service
shipping terminals, but have, to the best of the Company's knowledge,
discontinued such tests, and neither of them currently operates competing
machines in the market that are comparable to the form and function of the
Company's ASC. In addition, the Company competes with major air express
carriers, all of which deploy large numbers of "drop boxes" which may compete
with the Company's ASCs. According to industry sources, these carriers are
deploying additional drop boxes on an ongoing basis. Many of such boxes have or
will be installed in business centers, office parks and shopping malls, which
could be potential sites for the Company's ASCs. The Company also faces intense
competition from the related service industry providing package collection
services, such as mail and packaging stores. In addition, the Company's
competitors and the dominant package shippers, all of which have greater
resources than the Company, could develop products competitive with the
Company's ASCs.
RELIANCE UPON THIRD PARTIES FOR LEASE FINANCING
Throughout its 1996 fiscal year, the Company has relied almost
exclusively upon third parties to provide lease financing for ASCs marketed
to retailers. In the future, the Company intends to own and operate most ASC
installations. The Company intends to seek financing for Company-owned ASCs
on a limited basis. In the event the Company is unable to obtain such
financing, its business would be adversely affected.
ABILITY TO FORM STRATEGIC RELATIONSHIPS
The Company's strategy includes the formation of strategic relationships
with major carriers and retailers. The Company believes that relationships with
carriers will enable it to deploy its proprietary technology in the market by
leveraging a carrier's established service and distribution channels. The
Company has had limited success to date in forming a strategic relationship with
a carrier. The Company has also sought to establish relationships with
multi-site retailers. To date, the Company has had limited success in creating
relationships with multi-site retailers.
DEPENDENCE ON PROPRIETARY RIGHTS
The Company's success will depend in part upon its ability to protect its
proprietary technology, for which it relies on a combination of patent,
copyright, trademark and trade secret laws. Although the Company has received
patents for its ASC, there can be no assurance that current intellectual
property laws will afford the Company significant protection against competitors
or that other technology will not be developed to functionally compete with the
product. The Company believes that one or more major carriers, all of which
have greater financial, technical and marketing resources than the Company, have
attempted to develop or purchase products or technologies competitive with the
Company's ASCs. There can be no assurance that the Company will be able to
maintain a competitive advantage in the ASC market based upon its proprietary
technology.
TECHNOLOGICAL RISKS
The Company anticipates that any market which develops for automated
shipping services will be characterized by rapidly changing technology and user
preferences. Such market will likely be heavily influenced by the preferences
and acceptance of such technology by major package and parcel carriers. There
can be no assurance that future products or technology developed by others will
not render obsolete the Company's technology. Failure on the part of the
Company to develop new technology to meet competitive challenges may adversely
affect the Company's prospects.
11
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UNINSURED OBLIGATIONS TO SHIPPING CUSTOMERS
The Company or a retailer with whom a package is deposited may have
exposure to a customer to the maximum extent of the declared value of the
package in the event of its damage or destruction while in the possession of the
Company or a retailer. The Company limits its liability to the customer to the
amount of the declared value pursuant to the shipping transaction documentation,
and relies upon the carrier to reimburse it or the customer for damage occurring
during shipment. The Company, however, has no insurance which would protect it
against such losses.
QUARTERLY REVENUE FLUCTUATION; SEASONALITY
The Company expects to experience continued and substantial fluctuations in
revenue due to seasonal changes which affect the volume of package shipping
transactions. Such fluctuations create significant imbalances in the Company's
cash flow. Potential investors and shareholders should not, therefore, rely on
individual quarterly results as being indicative of the Company's overall
performance.
FRANCHISE REGULATION
The Federal Trade Commission regulates the offer and sale of franchises
under its "Franchise Rule," a regulation which sets forth standards mandating
disclosure of information before the sale of a franchise or business
opportunity. Additionally, several states, including Minnesota, have laws and
rules which regulate various aspects of franchising and the sale of business
opportunities. The Company believes that its programs for the sale, lease or
placement of ASCs do not constitute franchises or business opportunities within
the meaning of the Franchise Rule or such state laws. If the Company should be
required to comply with such laws or rules it would incur substantial costs,
delays and other burdens associated with various franchise registration and
disclosure compliance obligations. In addition, there can be no assurance that
other governmental regulations will not hinder the Company's plans. A finding
that the Company has violated state franchise laws or regulations of the
Franchise Rule could result in administrative, civil or criminal actions against
the Company and could materially and adversely affect its business. In
addition, if the Company is found to have violated franchise laws, certain
persons entitled to the benefit of such laws may have the right to rescind their
purchases or leases of the Company's ASCs, in addition to recovering damages,
interest and attorneys' fees.
12
<PAGE>
PART II - OTHER INFORMATION
ITEM 5 - Installation and Marketing Agreement, dated September 30, 1996,
between the Company and Kinko's, Inc.
On September 30, 1996, the Company entered into an Installation and
Marketing Agreement with Kinko's, Inc. to install up to 250 ASCs into various
Kinko's Copy Centers by December 1997. Under the terms of the Agreement
each ASC shall remain in service for 36 months following the date of its
installation, subject to certain contingencies. The Company has begun
installations under this agreement, and anticipates completing the
installations by December 1997.
ITEM 6 - Exhibits and Reports on Form 8-K
a. Exhibits
Exhibit 10.1 Installation and Marketing Agreement, dated
September 30, 1996, between the Company and
Kinko's, Inc.
Exhibit 27 Financial Data Schedule
b. Reports on From 8-K
None
13
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has
duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, in they City of Minneapolis, State of Minnesota on
November 12, 1996.
U-SHIP, INC.
By: /s/ Bruce H. Senske
-------------------------------
Bruce H. Senske
Chief Executive Officer and Chief Financial Officer
(Principal Executive and Financial Officer)
In accordance with the Securities Exchange Act of 1934, this report has been
signed below by the following person on behalf of the registrant, and in the
capacity and on the date indicated.
SIGNATURE TITLE DATE
- ------------------- ------------------------------------- -------------------
/s/ Bruce H. Senske
- ------------------- Chief Executive and Chief Financial November 12, 1996
Bruce H. Senske Officer and Director
(Principal Executive and Financial Officer)
14
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
U-SHIP, INC.
EXHIBIT TO FORM 10-QSB
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
Exhibit 10.1 Installation and Marketing Agreement,
dated September 30,1996, between the
Company and Kinko's, Inc. (certain
portions deleted and filed separately
with the Commission pursuant to a request
for confidential treatment)
Exhibit 27 Financial Data Schedule
15
<PAGE>
EXHIBIT 10.1
INSTALLATION AND MARKETING AGREEMENT,
DATED SEPTEMBER 30,1996
BETWEEN THE COMPANY AND KINKO'S, INC.
- -------------------------------
*Indicates marked portions deleted and filed separately with the Commission
pursuant to a confidential treatment request.
<PAGE>
INSTALLATION AND MARKETING AGREEMENT
THIS INSTALLATION AND MARKETING AGREEMENT is made and entered into
in the State of California this day of 30, September 1996, by and between
KINKO'S, INC., a corporation organized and existing under the laws of the
State of California ("KINKO'S") and U-SHIP, INC., a corporation organized and
existing under the laws of the State of Utah ("U-SHIP"), and is based on the
following premises:
WHEREAS, KINKO'S provides administrative, distribution and real
estate services and other business support to operators of the more than 850
retail service locations around the world who are licensed to provide copying
and other business services under the trademark, KINKO'S; and
WHEREAS, U-SHIP engages in the manufacture and sale of self-service,
consumer oriented, automated shipping center products, complete with equipment
and controlling software, and provides processing services and technical
support with respect to such ASC's; and
WHEREAS, KINKO'S wishes to provide package shipping services, using
the automation provided by U-SHIPS ASC's;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, KINKO'S and U-SHIP agree as follows:
1. THE WORK; EXISTING LEASES.
A. THE WORK. U-SHIP, at its sole expense, hereby agrees to
deliver and install an automated shipping center (ASC) in KINKO'S retail
service locations listed on Exhibit A (ASC Site). U-SHIP further agrees to
provide the processing services and technical support with respect to such
ASC's. The delivery and installation of the automated shipping center and the
processing services, technical support and maintenance with respect to such
ASC's required of U-SHIP pursuant to this Agreement (collectively, the "Work")
is more particularly described on Exhibit B, attached hereto and incorporated
herein. This Installation And Marketing Agreement shall constitute the
"Agreement" between the parties and shall set forth the rights and liabilities
of the parties to this Agreement. To place an order for the delivery and
installation of an ASC not included on Exhibit A, KINKO'S will complete an
installation request form ("Request") attached hereto and incorporated herein
as Exhibit C. Said Request(s) shall not become part of the Agreement until
such Request(s) are signed by both parties, including approval of KINKO'S
Business Segment Manager. U-SHIP reserves the right to decline to accept any
Request for any reason, including but not limited to election not to be
subjected to any state's franchise, business opportunity, or other commercial
law, or for no reason. U-SHIP hereby agrees to perform the Work in accordance
with the terms and conditions of this Agreement. To the extent that a conflict
exists between the terms and cond. itions of Exhibit C and the terms and
conditions of the Agreement, the Agreement shall control.
B. BUY-OUT AND CONVERSION OF EXISTING LEASES. The Parties hereby
acknowledge and agree that KINKO'S has previously entered into Lease
Agreements with Bank of Bismarck and/or U-SHIP for ASC's in the States of
Arizona, Minnesota, Illinois and Tennessee ("Existing Leases") all as more
particularly described in Exhibit D. Within thirty (30) days of the
"Effective Date," U-SHIP shall complete any and all documents necessary to
buy-out the Existing Leases and the subject ASC's will remain at the KINKO'S
locations described in Exhibit D but shall be thereafter be governed by the
terms and conditions of this Agreement. The "Installation Term" as to each
such ASC shall commence on the "Effective Date" of this Agreement.
<PAGE>
2. TERM OF AGREEMENT AND INSTALLATION TERM; EFFECT OF EXPIRATION OF TERM.
The term of this Agreement shall commence on the date that this Agreement is
fully executed by both parties hereto (the "Effective Date") and shall expire
on December 31, 1997 ("Expiration Date"). Any ASC's installed in accordance
with the terms and conditions of this Agreement shall remain in operation at
the site of installation for Thirty-six (36) months from the date of
installation ("Installation Term"), notwithstanding the earlier expiration of
this Agreement. The obligations of the parties pursuant to this Agreement
shall survive the expiration of this Agreement throughout the Installation
Term for each ASC remaining in operation as of the Expiration Date. Upon
expiration of this Agreement (except as to those ASC's remaining in operation
as of the Expiration Date the following shall apply upon the expiration of the
Installation Term) the software license, maintenance agreements, and services
agreements related to each ASC shall automatically and simultaneously
terminate and U-SHIP shall promptly disassemble and remove each ASC.
3. *
4. INSTALLATION OF ASC'S. Prior to the installation of an ASC in an ASC
Site, KINKO'S, at its sole cost, shall prepare the ASC Site according to the
specifications set forth in Exhibit E. KINKO'S shall pay the basic charges for
telephone lines, directly to the appropriate phone company, but KINKO'S shall
not be responsible for per-call charges for data transfer from each ASC.
KINKO'S shall allow U-SHIP to install ASC's at up to Two hundred fifty (250)
KINKO'S locations during the term of this agreement, subject to prior written
approval of KINKO'S U-SHIP Business Segment Manager of the Installation
Requisition. Once an ASC is installed in accordance with the terms and
conditions of this Agreement, KINKO'S shall not relocate ASC's without the
prior written consent of U-SHIP, which consent will not unreasonably be
withheld. U-SHIP will consider requests to install ASC's at locations outside
the United States. U-SHIP'S consent to such requests may involve terms and
conditions different from and additional to those provided herein, if required
by law.
5. CLEANING AND MONITORING OF ASC'S. KINKO'S, at its sole cost, shall
provide for each ASC regular site services such as cleaning of the ASC and
surrounding area and restocking of label and printer paper and daily
examination of the ASC for damage. KINKO'S shall collect cash payments on
behalf of U-SHIP made by ASC users. KINKO'S shall report promptly to U-SHIP
by telephone any visible ASC damage and any reported service problems or
nonfunctioning of the ASC.
6. SOFTWARE DEVELOPMENT. The parties have discussed possible development of
software products by U-SHIP specifically for KINKO'S, but any such development
shall be the subject of a separate agreement.
7. SOFTWARE LICENSE AND MAINTENANCE. Each ASC shall incorporate software for
operating the ASC and for processing data entered. In the event that such
software is licensed by a third party as an operating system of the computer,
U-SHIP shall notify KINKO'S of the existence of restrictions under such
license and a copy of the relevant license(s) shall be attached as Exhibit E.
With respect to the software licensed and provided by U-SHIP for use by
KINKO'S (the "U-SHIP Software"), the following terms and
- -------------------------------
*Indicates marked portions deleted and filed separately with the Commission
pursuant to a confidential treatment request.
<PAGE>
conditions apply to KINKO'S' use of such U-SHIP Software. All U-SHIP Software
supplied to KINKO'S or installed in the ASC's is covered by this license,
regardless of whether separately listed on any listing or presentation of
software products of U-SHIP supplied to KINKO'S.
8. GRANT OF LICENSE: LIMITATIONS. U-SHIP hereby grants to KINKO'S, for the
U-SHIP Software provided to or with each ASC, a single, non-transferable, and
nonexclusive license to use the U-SHIP Software in the normal operation of the
ASC. No right, title, or interest in the U-SHIP Software or any part of it or
in the ASC hardware is transferred hereby; KINKO'S does not hereby acquire any
right, title, or interest in the screens, appearance, "look and feel,"
designs, icons, or other characteristics or parts of the U-SHIP Software
and/or ASC hardware. KINKO'S shall have no right to alter, sublicense, copy,
or distribute the U-SHIP Software or any part of it, and KINKO'S shall not
examine, reverse compile, or reverse engineer the U-SHIP Software or clone it
(or any part of it) or adopt it or any part of it as KINKO'S' own, or
translate the U-SHIP Software into any computer language (e.g., COBOL, C,
etc.) or human language (e.g., French) other than the language in which it is
supplied.
9. PROPRIETARY NOTICES. All or a part of the U-SHIP Software may have been
patented. Patent or copyright notices may have-been included in the U-SHIP
Software for protective purposes, but such notices shall not be construed as
evidencing publication of the U-SHIP Software.
10. CONFIDENTIALITY OF SOFTWARE. The U-SHIP Software and information
pertaining to it, to the extent not published by U-SHIP, is confidential.
Title to the U-SHIP Software remains at all times in U-SHIP. KINKO'S shall
notify its employees of the confidential nature of the software and related
information of U-SHIP and shall be responsible for ensuring that such
employees do not disclose such information in violation of the terms of this
Agreement.
11. UPDATES AND ENHANCEMENTS. From time to time, U-SHIP may offer updates
and/or enhancements to the U-SHIP Software. Updates are features, minor
enhancements, or problem corrections that are added to the U-SHIP Software and
which shall be issued periodically to KINKO'S for no additional cost. U-SHIP
may also develop additional features that add significant functionality to the
U-SHIP Software which may be licensed separately as enhancements. If KINKO'S
elects to purchase a license for an enhancement, KINKO'S shall be charged the
then current price therefor, and such enhancements shall be covered by the
terms of this Agreement.
12. COMMISSIONS PAYABLE.
A. *
B. Within thirty (30) days following the end of each calendar month
during the term beginning with the Effective Date, U-SHIP shall furnish to
KINKO'S complete and accurate statements of shipments made during the calendar
month certified to be accurate by a designated representative of U-SHIP. Such
statements shall reflect cash payments made by ASC users collected by KINKO'S
as a credit to U-SHIP. It is a material term and condition of this Agreement
that shipments be reported on a store by store basis. Receipt or acceptance by
KINKO'S of any of the statements furnished pursuant to this Agreement or of
- -------------------------------
*Indicates marked portions deleted and filed separately with the Commission
pursuant to a confidential treatment request.
<PAGE>
any sums paid hereunder shall not preclude KINKO'S from questioning the
correctness thereof at any time, and in the event that any inconsistencies or
mistakes are discovered in such statements or payment, they shall immediately
be rectified and the appropriate payments made by U-SHIP or KINKO'S as the
case may be. Any payments which are made hereunder by U-SHIP or KINKO'S, as
the case may be, after the due date required therefore, shall bear interest at
the then current prime rate (or the maximum rate permissible by law, if less
than the current prime rate) from the date such payments are due to the date
of payment.
C. U-SHIP shall maintain complete and accurate records in accordance
with generally accepted accounting principles to substantiate all of U-SHIP'S
Commission payments hereunder including without limitation, invoices,
correspondence, banking and financial records. U-SHIP shall retain such
records for three (3) years from the expiration or earlier termination of this
Agreement or any renewals hereof. At any time during the term of this
Agreement and for three (3) years following the expiration or earlier
termination of this Agreement, upon five (5) days written notice to U-SHIP,
KINKO'S or its nominees shall have the right to inspect and audit U-SHIP'S
books and records as they relate in any manner to this Agreement and the
relationship of the parties. U-SHIP agrees not to cause or permit any
interference with KINKO'S or KINKO'S nominees in the performance of their
duties of inspection and audit. The exercise by KINKO'S in whole or in part,
or at any time or times of the right to audit records, the acceptance by
KINKO'S of any statement or statements or the receipt and deposit by KINKO'S
of any payment tendered by or on behalf of U-SHIP shall be without prejudice
to any rights or remedies of KINKO'S and shall not stop or prevent KINKO'S
from thereafter disputing the accuracy of any such statement or payment.
Should an inspection or audit conducted pursuant hereto reveal any shortfall,
U-SHIP shall pay to KINKO'S an amount equal to such shortfall together with
the interest thereon at the then current prime rate from the date such amount
became due until the date of payment. Nothing herein shall be construed to
prevent KINKO'S and/or its duly authorized representatives from testifying in
any court of competent jurisdiction with respect to the information obtained
as a result of such inspection or audit in any action instituted to enforce
the rights of KINKO'S under the terms of this Agreement.
13. FORCE MAJEURE. Notwithstanding anything herein to the contrary, neither
party shall be responsible for failure to fulfill its non-monetary obligations
under this Agreement due to fire, flood, war, labor disputes, shortages,
riots, insurrections, explosions, earthquakes, acts of god or any other cause
beyond its control and without its fault or negligence provided it promptly
notifies the other party of its inability to fulfill its non-monetary
obligations, the cause of its inability to fulfill its non-monetary
obligations, and the non-performing parties' reasonable estimation of the
duration of its inability to fulfill its non-monetary obligations provided the
non-performing party exercises reasonable efforts to commence fulfillment of
its obligations hereunder as soon as possible and proceeds to perform with
dispatch once the cause(s) are removed or cease.
14. TITLE AND RISK OF LOSS. Title to the ASC's shall remain in U-SHIP and
risk of loss pertaining to the ASC(s) shall be borne by U-SHIP at all times
during this Agreement, except that U-SHIP shall not bear the risk of loss to
the ASC(s) occurring after installation of the ASC at the installation site in
the event such loss arises pursuant to accident, disruption or surge of
electrical power, fire, flood or any other casualty, repair or attempted
repair by anyone not authorized by U-SHIP, or neglect, misuse or abuse by
KINKO'S or others at the installation site, other than representatives of
U-SHIP.
15. MUTUAL INDEMNIFICATION. Each party shall indemnify, defend and hold the
other harmless from and against all liability, claims, actions, suits and
other proceedings of any nature whatsoever, and any and all losses, judgments,
damages, expenses or other costs (including reasonable counsel fees and
disbursements and court costs), which the other party may incur, suffer,
become liable for, or which may be asserted against the other party as a
result of (i) the acts, errors or omission of such party or its directors,
officers, employees, contractors, agents or assigns, as a result of or while
performing its or their obligations hereunder and/or (ii) any breach or
violation by such party of any of the terms and provisions of this Agreement.
The indemnification provided by, or granted pursuant to, the provisions of
this Paragraph, shall not be deemed exclusive of any other rights to which a
party may be entitled. All rights to
<PAGE>
indemnification under this provision shall be deemed to be provided by a
contract between the parties while this Agreement and relevant provisions of
applicable law, if any, are in effect. Any repeal or modification hereof or
thereof shall not affect any such rights then existing. The indemnification
provided by, or granted pursuant to this provision shall, unless otherwise
provided, inure to the benefit of each party and its successors and assigns.
Any indemnification due pursuant to the terms herein shall be made promptly,
and in no event later than thirty (30) days, after such party's receipt of
written request therefor.
16. MUTUAL OBLIGATION TO PURCHASE INSURANCE. Without limiting the foregoing
indemnification obligations, each party agrees to maintain at its own
expense, during the term of this Agreement and for one (1) year hereafter,
with an insurer or insurers reasonably acceptable to the other party, the
following insurance coverage: (a) commercial general liability insurance
including products/completed operations, blanket contractual liability, and
personal injury and advertising injury liability coverage in amounts no less
than Two Million Dollars ($2,000,000.00) combined single limit for each single
occurrence for bodily injury and property damage and Two Million Dollars
($2,000,000.00) in the general aggregate, and (b) product liability insurance
providing adequate protection for both parties against any such claims or
suits in amounts no less than Two Million Dollars ($2,000,000.00). Within
thirty (30) days from the Effective Date hereof each party shall submit to the
other party a certificate evidencing such insurance, that such party has been
named as an additional insured party on said insurance and, with respect to
any claim for which the insuring party is obligated to indemnify the other
party, that said insurance shall be primary coverage before any other similar
insurance available to the other party. The certificate shall provide for at
least thirty (30) days advance written notice to the other party of any
cancellation or reduction in such coverage.
17. TERMINATION FOR DEFAULT. Upon the occurrence of a material default by
the other party in the performance of the terms and conditions of this
Agreement, either party may, by written notice to the other party, terminate
this Agreement in whole or in part including the termination of any
installation of an ASC pursuant to this Agreement. The following events shall
constitute a material default:
(1) The failure of the other party to pay any monies upon the terms
contained herein;
(2) The failure of the other party to perform any of its obligations
under this Agreement; or
(3) The other party shall become bankrupt, have an order of receivership
issued against it, file a petition in bankruptcy, make an arrangement with or
assignment in favor of the creditors or go into liquidation (other than
voluntary liquidation for purposes of merger or reorganization, where it does
not result in any material diminution of the other party's ability to perform
its obligation hereunder); or
(4) The sale or transfer of control of the other party or substantially
all of the assets thereof to an unrelated entity. In the event that a party
hereto (a) merges with one or more other entities licensed to use the such
party's trademark, or (b) assigns all its right, title and interest in this
Agreement to the owner/licensor of said trademark, such a transfer shall be
specifically excluded as an event of default for purposes of this Agreement.
Either party's right to terminate this Agreement for any of the reasons listed
hereinabove may be exercised if the defaulting party does not promptly
implement the necessary measures to correct such failure within thirty (30)
days (or more if authorized in writing by the non-defaulting party) after
receipt of notice from the non-defaulting party specifying in reasonable
detail the failure and if the defaulting party does not continue to diligently
prosecute the cure to completion.
18. NON-DISCLOSURE/CONFIDENTIALITY. KINKO'S and U-SHIP may exchange business
information or technical information during the term of this Agreement that is
proprietary to the disclosing party and considered by it to be a trade secret
("Confidential Information"). If at the time of disclosure such information
is identified in writing as proprietary, or identified as proprietary with
follow-up written notification thereof within ten (10) days, then the
receiving party will guard its confidentiality with the same degree of care
that such party replies to its own proprietary information, but at least using
reasonable
<PAGE>
care. This obligation shall survive any termination of this Agreement but
shall not apply to information which:
a) Was in the receiving party's possession, without restriction, prior to
its receipt from the disclosing party;
b) Is independently developed by the receiving party without using
Confidential Information of the disclosing party;
c) Is or becomes public knowledge without fault of the receiving party;
d) Is or becomes available to the receiving party, validly without
restriction, from a source other than the disclosing party;
e) Becomes available to a third party from the disclosing party, without
restriction;
f) Is publicly disclosed (not under adequate protective order) by the
receiving party under an order of a court or government agency,
provided that the receiving party provides prior written
notification to the disclosing party of such obligation and of any
opportunity to oppose such order.
The terms of this Agreement, but not its existence or the number of ASC's
installed hereunder, shall be considered confidential and subject to
provisions of this Section 19. In the event the parties agree to disclose any
of the terms of this Agreement, each party shall in each instance obtain the
prior written approval of the other concerning the exact text and timing of
news releases, articles, brochures, advertisements, prepared speeches and
other information concerning such terms.
19. PROTECTION OF THE MARK. During the term of this Agreement, U-SHIP agrees
to refrain from any unauthorized use of the trademark, KINKO'S (the "Mark")
and agrees to assure usage of the Mark solely as approved hereunder and as
otherwise approved in writing by KINKO'S. U-SHIP shall not use, or permit the
use of, the Mark in written and/or oral communication(s) or in any other
manner or form without prior written consent for each and every such use.
This Agreement does not constitute a grant of a license to KINKO'S for use any
of U-SHIP'S trademarks, logos or trade names; to the extent trademarks, logos
or trade names appear on an ASC, on screen or on line, the same are for
identification purposes and no proprietary right or license is hereby given to
KINKO'S.
20. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants the
following:
a. That the execution and delivery of this Agreement and the performance
of the transactions contemplated hereby are within its corporate powers, have
been duly authorized by all necessary action, and do not contravene, violate,
or conflict with, or constitute a default under, any provision or applicable
law, regulation, any governing documents, charter or bylaw, or any agreement,
license, judgment, injunction, order, decree or other instrument binding on it;
b. That it has the legal right, power and authority to grant the rights
to the other party as set forth herein and to execute and deliver this
Agreement and to perform and/or permit all the transactions contemplated
hereby;
c. That it will not harm, misuse or bring into disrepute the
trademark(s), commercial symbol(s), trade secret(s), servicemark(s), and
logotype(s) of the other party;
d. That it will not create any expenses chargeable to the other party
without such party's prior written approval of said cost;
e. That it will comply with the terms of this Agreement and all laws and
regulations relating or pertaining to the subject matter of this Agreement and
shall comply with any regulatory agencies which shall have jurisdiction over
the subject matter of this Agreement.
21. NON-EXCLUSIVE. The parties hereto agree that nothing contained in this
Agreement shall be construed as creating an exclusive relationship between the
parties, except that during the period when an
<PAGE>
ASC is installed at a ASC Site, KINKO'S shall not install or use any competing
automatic shipping system in the ASC Site. Subject to the foregoing, this
Agreement is non-exclusive and nothing in this Agreement shall prevent the
other party from entering into the same or similar relationship with others;
or from developing similar or competing relationships with others.
22. RELATIONSHIP OF PARTIES. This Agreement does not make either party the
employee, agent, franchisee, fiduciary or legal representative of the other
party for any purpose whatsoever. Neither party shall have any authority to
bind the other party in agreements with third parties. In fulfilling their
obligations hereunder, each party shall act as an independent contractor.
23. AMENDMENTS. No change, alteration or amendment to this Agreement shall be
valid unless made in writing and signed by the duly authorized representative
of each party.
24. NO ASSIGNMENT. Except as provided herein, neither party shall have any
right to transfer or assign its rights or obligations under this Agreement to
any third party without prior written consent of the other party; except that
either party may assign or transfer its interest under this Agreement to any
successor by merger or consolidation or an entity which acquires substantially
all of the assets of such party and which agrees to assume, and be bound by
the terms of this Agreement. Notwithstanding anything herein to the contrary,
either party shall have the right to assign, transfer, convey, sell, encumber
or in any way alienate all or any part of this Agreement (collectively
"transfer") to any of its partners, related entities, subsidiaries or
affiliates, or to a successor entity in the event of merger, reorganization,
consolidation, transfer, sale, stock purchase, public offering or other change
of ownership (collectively "affiliate") without consent of or recourse by the
other party provided that at the time of such transfer the affiliate (i) is
capable of performing and is legally authorized to perform all of the
transferring party's obligations hereunder, (ii) has a net worth in excess of
the transferring party prior to the transaction and (iii) consents in writing
to such transfer.
25. NOTICES. Any notice required or permitted to be given under this
agreement is effective upon receipt by the party to be charged with notice,
shall be given in writing, and may be delivered by (a) personal service, (b)
registered mail, postage prepaid, addressed to the other party, (c) overnight
delivery services such as United Parcel Service, or (d) facsimile with
confirmation of delivery:
Wendell Wilson
KINKO'S, Inc.
255 W. Stanley Avenue
Ventura, CA 93001-8000
with a copy to:
Stuart Blake
KINKO'S, Inc.
255 W. Stanley Avenue
Ventura, CA 93001-8000
U-SHIP, Inc.
5583 West 78th Street
Edina, Minnesota 55439
Attention: Bruce H. Senske
26. GOVERNING LAW; ARBITRATION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California.
Except as hereinafter provided, any disputes between the parties and based
upon or arising out of this Agreement shall be subject to resolution through
consultation of the parties in good faith. If such consultation should fail to
result in a resolution of the disputes, then each dispute not so resolved may,
on demand of either of the parties hereto, be submitted to binding
<PAGE>
arbitration in accordance with the rules of the American Arbitration
Association ("AAA"). Such arbitration shall be governed by the United States
Federal Arbitration Act ("FAA"), 9 U.S.C. sec.1, et A. In the event any rule
or procedure of the AAA applicable to such proceeding shall be in conflict
with the FAA or established case law under the FAA, the FAA shall prevail and
preempt any other interpretations, rules, or procedures to the contrary.
Unless the parties mutually agree otherwise, the proceedings shall not be
administered by the AAA; rather, the proceeding shall be administered by a
single arbitrator agreed upon by the parties.. If the parties cannot agree
upon a single arbitrator, a panel of three arbitrators shall be selected in
the following manner: KINKO'S and U-SHIP shall each select one (1) arbitrator
who shall be free from conflict of interest with respect to the subject matter
and the parties to the proceeding. Any arbitrator who is appointed shall
answer any reasonable interrogatories propounded by another party regarding
the qualifications and the existence of any conflict of interest, and such
answers may be used to disqualify or challenge such arbitrator. The
arbitrators so selected shall designate a third arbitrator who shall,
similarly, be free of any conflict of interest. The arbitrators shall act
based upon a decision of the majority of them. If any arbitrator fails or
ceases to act, or is disqualified, such arbitrator shall be redesignated or
appointed in the manner and by the same person or persons who originally
appointed him or her. The arbitration proceedings shall be held in San
Francisco, California or such other location as the parties may mutually
agree. For the purpose of enforcing the provisions of this Section, KINKO'S
consents to the personal jurisdiction of the United States Federal District
Court in the State of California, U.S.A., and U-SHIP consents to the personal
jurisdiction of the United States Federal District Court for the Southern
District of California, for the purpose of compelling arbitration proceedings
or confirming an award rendered therein. After confirmation, either party may
seek whatever assistance is desired of any additional court otherwise having
jurisdiction to enforce such award. The arbitrator(s) may award a prevailing
party in any arbitration proceeding hereunder any or all of the following
relief or remedies: (a) judgment; (b) injunctive relief; (c) compensatory
damages; or (d) interest, attorney's fees and other reasonable and necessary
costs (including, without limitation, fees of arbitrators, transcripts,
hearing rooms, and expenses of arbitrators). The parties agree that no award
in arising out of or in connection with this Agreement shall consist of or
include punitive damages. The parties agree that this provision for
arbitration shall not be interpreted to prevent injunctive relief pending
resolution of any dispute hereunder through arbitration.
27. TAXES. U-SHIP shall be solely responsible for and shall pay all
assessments, taxes, including sales taxes and/or other governmental charges
pertaining to the use and ownership of the ASC, however designated, and which
are now or hereafter imposed under or by any governmental agency or authority,
except such taxes which may be applicable to the commission collected by
KINKO'S pursuant to Section 12 hereinabove.
28. JOINT MARKETING. On a local or regional basis, as appropriate based upon
the number of ASC locations in any given region, KINKO'S shall use good faith
efforts to market the package-shipping capability represented by the ASC,
within the restrictions of proper use of U-SHIP'S trademarks and trade names
as provided herein. U-SHIP shall provide ongoing support information and
advice for KINKO'S advertising and promotion of the ASC. No less than
annually, U-SHIP and KINKO'S shall meet and cooperate on an advertising plan
and strategy for the following year.
29. ENTIRE AGREEMENT. This Agreement represents the entire agreement between
the parties with respect to the subject matter hereof, and all oral
communications, negotiations and agreements between the parties which took
place prior to the effective date hereof are merged into this Agreement.
<PAGE>
30. EXHIBITS. The following exhibits are attached to this Agreement and are,
by this reference, hereby incorporated and shall be treated as if set forth in
full herein:
Exhibit A: ASC Sites
Exhibit B: Description of Work
Exhibit C: Installation Request Form
Exhibit D: Existing Leases
Exhibit E: Specifications for ASC Site Preparation
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date first above written.
U-SHIP, INC.
By: /S/ BRUCE SENSKE
--------------------------------------
Bruce H. Senske,
Chairman and CEO
KINKO'S, Inc.
By: /S/ WENDELL WILSON
--------------------------------------
Wendell Wilson, Vice President
Operations & Product Management
<PAGE>
KINKO'S LOCATIONS
ROLL-OUT SCHEDULE
EXHIBIT A
LOCATION CONTACT TITLE NUMBER OF
ASCS
City ST
Fort Smith AR Wayne Rogers Branch Office Manager 1
Brea CA Randal Barron Regional Manager 10
Van Nuys CA Greg Williams Branch Manager 1
San Francisco CA Bryan Wayson Branch Manager 1
Palm Desert CA Cathie Walsh Manager 1
Boulder CO Todd Ordahl Executive Vice President 50
Boulder CO Jim Gornick Branch Manager 1
Boulder CO Dave Miescke Branch Manager 1
Taylor MI Sue Coffaro Regional Manager 1
Syracuse NY David Agosto Branch Manager 1
Kent OH Wayne Matthews Computer Svcs. Manager 5
Pittsburgh PA Matthew McDonald Regional Manager 10
Waco TX Annisa Thomas Manager 1
Salt Lake City UT J.C. Cole Regional Manager 10
TOTAL 93
<PAGE>
EXHIBIT B
PAGE 1 OF 2
THE WORK
U-Ship, at its sole expense, hereby agrees to deliver and install
automated shipping centers ("ASC's") and perform processing services,
technical support and maintenance with respect to such ASC's pursuant to the
following terms and conditions:
1. INSTALLATION.
A. Exerting its best reasonable efforts to meet any agreed installation
dates, U-SHIP shall ship each ASC and install it at the designated site.
Shipment of all ASCs shall be from Minneapolis, Minnesota, and,
notwithstanding any other provisions of this Agreement, all expenses related
to transportation and transportation insurance shall be paid by U-SHIP.
Installation shall include delivery, placement, electrical attachment and
telephone hook-up. U-SHIP personnel or other trained personnel shall run
U-SHIP's diagnostic software and demonstrate the proper functioning of the ASC
upon installation. If the ASC is not operating in accordance with
specifications immediately after installation, KINKO'S may reject it, in which
case U-SHIP may replace, repair or re-install the ASC until proper functioning
is demonstrated.
B. As soon as reasonably possible following installation of each ASC,
but only once per site, U-SHIP personnel, either on site or by video
conference, shall render individual or small-group training for the KINKO'S
personnel associated with the site. Such training shall be of approximately
three hours' duration and shall include delivery of a training video and a
users' manual.
2. TRANSACTION-BASED SERVICES.
A. U-SHIP shall provide data processing services including data
transfers, data handling, and credit card processing. U-SHIP's state of the
art data network provide class five military security to ensure data integrity
and security. Each Model 4100 ASC contacts the U-SHIP Automated Clearing
House system daily. The U-SHIP Clearing House function reads in all package
transactions, reformats encrypted credit card charge data for forwarding to
the credit card processing service, logs activity levels against key
maintenance parameters, and creates a back-up activity file for future
reference, should it be required, for machine performance analysis and
development of marketing statistics.
B. Credit cards accepted by the ASC's shall be those of the VISA,
MasterCard, and American Express systems. U-SHIP shall process such credit
card transactions on its own behalf and for its own account and thereby
collect all revenues from credit card transactions directly from the card
issuers. U-SHIP shall also arrange for the possibility of use of the KINKO'S
corporate credit cards in the ASC's and shall provide KINKO'S daily with the
billing file for such card. Transactions involving the KINKO'S credit cards
shall be deemed to be cash transactions and the associated revenues dealt with
as cash according to Section 11 of this Agreement.
C. No less often than once per month and no more often than once per
week, U-SHIP shall provide data on processed transactions to KINKO'S in a
form reasonably requested by KINKO'S, for further analytical processing by
KINKO'S. At an additional setup charge and periodic reporting fee, as agreed
upon in advance by the parties, KINKO'S may request and U-SHIP shall
provide analytical reports as reasonably specified by KINKO'S.
D. Assuming collection of shipping customers' payments according to the
Agreement, U-SHIP shall be responsible for all payments to UPS or other
shippers for shipment of the packages processed by ACS's.
<PAGE>
EXHIBIT B, PAGE 2 OF 2
E. Shipping services of U-SHIP under this Agreement shall include the
following, with respect to mailing transactions conducted through use of the
ASC's: (i) handling all interactions and processing all financial transactions
with the package carrier; (ii) package tracking; (iii) loss recovery; and (iv)
provisions of signage and promotional materials and assistance of KINKO'S,
including press releases and advertising materials for use by KINKO'S.
3. ASC GENERAL SUPPORT.
U-SHIP shall provide telephone support for employees of KINKO'S
concerning operation or failure of ASCs, at U-SHIP's 1-800 number, provided
that such employees call promptly after a problem occurs, but between the
hours of 9:00 a.m. and 7:00 p.m. Eastern Standard Time, and have the following
information ready: (i) ASC number, from the top of the receipts issued by the
ASC, and on the Managers Screen; (ii) the product function that the ASC was
performing when the problem occurred; (iii) the process that was taking place
when the problem occurred; (iv) a statement of when the problem occurred; and
(v) a description of the steps that KINKO'S representatives have taken since
the problem occurred and the information currently being displayed on the
monitor.
4. SOFTWARE TECHNICAL SUPPORT.
Support for the U-SHIP Software generally consists of telephone technical
assistance provided by U-SHIP relating to U-SHIP Software licensed to KINKO'S
hereunder and offered during the hours specified in Section 3 above in this
Exhibit B. From time to time U-SHIP or KINKO'S may notice and report material
deviations between the U-SHIP Software and the U-SHIP manual for the relevant
model ASC ("Software Problems"). In such cases, U-SHIP will employ reasonable
efforts to correct Software Problems within 24 hours of a report thereof by
KINKO'S to U-SHIP, or if U-SHIP is unable to provide such correction by
telephone-to KINKO'S or to the ASC directly within 24 hours despite the use of
all reasonable best efforts, then U-SHIP will supply the corrections as soon
as is reasonably possible. Correction of Software Problems shall consist of
supplying or transmitting to the ASC or KINKO'S, or may consist of publishing,
corrections which will bring the U-SHIP Software into compliance with the
relevant U-SHIP manual. Any changes in manuals in connection with this
provision shall be for the purpose of removing errors in documentation,
providing consistency of interpretation, or describing an update or
enhancement to the U-SHIP Software.
<PAGE>
EXHIBIT C
[LOGO]
REQUEST FOR ASC PLACEMENT
- -------------------------------------------------------------------------------
LOCATION
- -------------------------------------------------------------------------------
Store Name:
- -------------------------------------------------------------------------------
Contacts - Store Manager:
- -------------------------------------------------------------------------------
Customer Service Manager:
- -------------------------------------------------------------------------------
Bookkeeper:
- -------------------------------------------------------------------------------
Address: Do you go on daylight savings? YES / NO
Time Zone: EASTERN CENTRAL MOUNTAIN
PACIFIC ALASKA HAWAII
- -------------------------------------------------------------------------------
Phone #: ( ) Fax #: ( )
- -------------------------------------------------------------------------------
Current
UPS: YES/NO Postal Substation: YES/NO Weekly store traffic: Store hours:
Pkgs per month:
- -------------------------------------------------------------------------------
Directions to Store:
- -------------------------------------------------------------------------------
U-SHIP 4100 UNIT PLACEMENT SPECIFICATIONS
- -------------------------------------------------------------------------------
Please mark (X) if specification has been met:
/ / Phone: RJ11 wall-mounted phone jack, using a direct
access phone line
/ / Power: 120 VAC; 15 amps; dedicated outlet
[Picture]
/ / Package drop-off within sight of the unit
/ / Unit not placed in direct sunlight
/ / Unit away from cart storage
/ / Unit not placed in extreme temperatures
/ / Area for overhead sign and shipping supplies
Dimensions: 43"(w) x 55"(h) x 31" (d)
- -------------------------------------------------------------------------------
SHIPPING SUPPLIES
- -------------------------------------------------------------------------------
Please circle YES or NO to order shipping supplies
Are you interested in
ordering discount shipping If yes, a U-Ship representative will send you
supplies to complement your information on pricing and supplies offered.
UPS shipping services?
- -------------------------------------------------------------------------------
PROMOTIONAL DESIGN DIMENSIONS
- -------------------------------------------------------------------------------
For promoting your U-Ship UPS Shipping Center you will
be provided with two of the following items.
[Picture] Please circle your two choices:
a) One 44" x 30" two-sided directional sign
b) One 30" x 20" two-sided directional sign
c) One 6' x 3' outdoor/indoor banner
- -------------------------------------------------------------------------------
Authorized Signature: FOR OFFICE USE ONLY:
Site Number:
- -------------------------------------------------------------------------------
Title or Position: Shipper number:
- -------------------------------------------------------------------------------
Date: Installation Date:
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT D
PAGE 1 OF 14
September 19, 1996
Mr. Greg Klausner
Kinko's Service Corporation
255 West Stanley Avenue
Ventura, California 93002-8000
Dear Greg:
This letter is to confirm that upon entering into the Installation and
Marketing Agreement between Kinko's and U-Ship, U-Ship will buy out the
current Kinko's lease contracts and convert the existing locations over to the
terms and conditions of the new Agreement. Attached you will find a list of
the current Kinko's locations that will fall under this arrangement.
Best regards,
/s/ Bryan Virgin
Bryan Virgin
Vice President, Marketing & Sales
<PAGE>
EXHIBIT D
PAGE 2 OF 14
KINKO'S INSTALLATIONS
FINANCING ARRANGEMENTS
STORE NAME LOCATION MONTHLY FEE FINANCING DATE OF INSTALL
- ---------- -------- ----------- --------- ---------------
Kinko's Phoenix AZ $160.20 Bank of Bismarck 10/14/95
Kinko's Scottsdale AZ $160.20 Bank of Bismarck 1/22/96
*The systems in Arizona are leased through Bank of Bismarck lease #818.
Kinko's Bloomington MN $159.75 Bank of Bismarck 9/24/95
Kinko's Burnsville MN $159.75 Bank of Bismarck 4/6/95
Kinko's Eden Prairie MN $159.75 Bank of Bismarck 10/12/95
Kinko's Minneapolis MN $159.75 Bank of Bismarck 9/25/95
Kinko's Minnetonka MN $159.75 Bank of Bismarck 10/17/95
Kinko's Roseville MN $159.75 Bank of Bismarck 9/26/95
Kinko's St. Paul MN $159.75 Bank of Bismarck 3/29/95
*Six systems in Minnesota are leased through Bank of Bismarck lease #813.
(There is also an addendum to these lease for the seven system).
U-SHIP PAYS BANK OF BISMARCK EACH MONTH AND BILLS THE RESPECTIVE LOCATION FOR
THE LEASE PAYMENT.
Kinko's Brownsville TX $100 U-Ship 8/29/96
Kinko's
Chicago 9 Chicago IL $100 U-Ship 8/20/96
Kinko's Knoxville TN $108.25 U-Ship 6/1/96
Kinko's Knoxville TN $108.25 U-Ship 6/1/96
*These locations are billed monthly directly through U-Ship.
<PAGE>
EXHIBIT D, PAGE 3 OF 14
LESSEE SUPPLIER OF LEASE #
EQUIPMENT 870
Name T J KINKO'S, INC. U-SHIP INC.
Address 5516 LONAS ROAD SUITE #200 5583 WEST 78TH STREET
City KNOXVILLE State TN Zip 37909 EDINA, MN 55439
(612) 941-4080
CONTACT TODD JOHNSON
TELEPHONE NUMBER 423.558.8080
- --------------------------------------------------------------------------------
QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER(S)
- --------------------------------------------------------------------------------
96050003
2 U-SHIP MODEL 4100 AUTOMATED SHIPPING CENTER(S) 96050004
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
INITIAL PAYMENT MONTHLY PAYMENTS TERM AND NUMBER OF PAYMENTS MONTHS
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Total Lease Term: 36
First Month $216.50 Base Rent $200.00 Advanced Rentals Paid: 1
Documentation Fee Sales/Use tax $ 16.50 Lease Rentals Remaining: 35
Total Initial Payment $216.50 Total Monthly Payment $216.50 Payments Due And Payable As Invoiced
- ----------------------------------------------------------------------------------------------------------
</TABLE>
TERMS AND CONDITIONS
LESSEE HEREBY WARRANTS AND REPRESENTS THAT THE EQUIPMENT WILL BE USED FOR
BUSINESS PURPOSES, AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD, OR AGRICULTURAL
PURPOSES. LESSEE ACKNOWLEDGES THAT THE LESSOR AND ITS ASSIGNS HAS RELIED
UPON THIS REPRESENTATION IN ENTERING INTO THIS LEASE.
1. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT,
NOR MANUFACTURE'S AGENT AND LESSEE REPRESENTS THAT LESSEE HAS SELECTED THE
EQUIPMENT LEASED HEREUNDER BASED UPON LESSEE'S JUDGMENT PRIOR TO HAVING
REQUESTED LESSOR TO PURCHASE THE SAME FOR LEASING TO LESSEE, AND LESSEE
AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS OF A DESIGN, SIZE, FITNESS, AND
CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS
SUITABLE AND FIT FOR ITS ATTENDED PURPOSES. LESSEE FURTHER AGREES THAT LESSOR
HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE,
DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO
ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUITABILITY, DURABILITY,
FITNESS FOR USE AND MERCHANTABILITY OF ANY SUCH EQUIPMENT, THE PURPOSES AND
USES OF THE LESSEE OR OTHERWISE. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO
MAKE CLAIM AGAINST LESSOR HEREIN FOR BREACH OF ANY WARRANTY OF ANY KIND
WHATSOEVER, LESSOR HEREBY PASSES TO LESSEE ALL WARRANTIES, IF ANY RECEIVED BY
LESSOR BY VIRTUE OF ITS OWNERSHIP OF THE EQUIPMENT. LESSOR SHALL NOT BE
LIABLE TO LESSEE FOR ANY LOSS DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED
DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER FOR THE USE OF THE
MAINTENANCE THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE
REPAIRS, SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO
PROVIDE ANY THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF
OR FOR ANY LOSS OF ANY BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER
CAUSED. NO DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE
OBLIGATION TO PAY RENT, OR ANY OTHER OBLIGATION UNDER THIS AGREEMENT TO
LESSOR OR ITS ASSIGNEE. LESSEE FURTHER AGREES THAT LESSOR HAS MADE AND MAKES
NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATION OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, INTERFERENCE ORE INFRINGEMENT WITH THE USE OR ENJOYMENT
OF THE EQUIPMENT, DURABILITY OR SUITABILITY OF THE EQUIPMENT FOR THE PURPOSES
OR THE USES OF LESSEE OR OTHERWISE, OR THE LIKE. THERE IS NO EXPRESS OR
IMPLIED WARRANTY FROM LESSOR THAT THE GOODS WILL BE FIT FOR A PARTICULAR
PURPOSE, MERCHANTABLE OR FREE FROM ANY CLAIMS OF INTERFERENCE OR
INFRINGEMENT. LESSEE AGREES THAT, WITH RESPECT TO ANY CLAIMS AGAINST LESSOR,
THE EQUIPMENT IS DELIVERED "AS IS" AND "WITH ALL FAULTS". LESSEE
SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIM AGAINST LESSOR HEREIN FOR BREACH
OF ANY WARRANTY OF ANY KIND WHATSOEVER, LESSOR SHALL NOT BE LIABLE TO LESSEE
FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR
INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, FOR THE USE OR THE MAINTENANCE
THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE REPAIRS,
SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY
THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USES THEREOF OR FOR ANY
LOSS OF BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. LESSEE
ACCORDINGLY AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS
OF ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. LESSOR SHALL HAVE NO
OBLIGATION TO INSTALL, ERECT, TEST, SERVICE, ORE MAINTAIN THE EQUIPMENT.
LESSEE SHALL LOOK TO THE MANUFACTURER AND/OR SELLER FOR ANY CLAIM RELATED TO
THE EQUIPMENT. Lessor hereby acknowledges that any manufacture's and/or
seller's warranties are for the benefit of both lessor and lessee. To the
extent permitted by the manufacturer or seller, and provided Lessee is not in
default under this Lease, Lessor shall make available to Lessee all
manufacturer and/or seller warranties with respect to equipment. Lessee
understands and agrees that the Lease is an equipment lease only, and the
lease does not include providing services in any matter related to or arising
out of installation or operation of the equipment supplied thereunder.
Notwithstanding any thing to the contrary contained in the Lease or any
supporting schedules, Lessee understands and agrees that Lessor shall not be
obliged in any manner to furnish or warrant the availability or suitability
of any services rendered or to be rendered in connection with the equipment,
including but not limited to, support or other services of any kind
whatsoever. Lessee understands and agrees that any and all services rendered
or to be rendered in connection wit the equipment including the installation,
operation or maintenance thereof shall be provided solely by the Lessee under
separate agreement between the Lessee and the provider of the services.
Notwithstanding the foregoing, Lessee's obligations to pay the rentals or
otherwise under this Lease shall and are absolute and unconditional.
2. LEASE: Lessor hereby leases to Lessee and Lessee hereby hires and takes
from Lessor the personal property described above and on any attached
supplemental "Equipment Lease Schedule" (Hereinafter with all replacement
parts, additions, repairs and accessories incorporated therein and/or affix
thereto, referred to as "Equipment"). Each Equipment Lease Schedule shall be
in from prescribed by Lessor and, upon the execution and delivery thereof,
shall constitute a part of this Lease to the same extent as if the provisions
thereof were set forth in full in this Lease; the terms "Agreement,"
"hereof," "herein," and "hereunder," when used in this Lease, shall mean this
Lease and each Equipment Lease Schedule.
3. TERM AND RENT: THIS LEASE IS NON/CANCELABLE FOR THE TERM STATED ABOVE and
shall commence upon the Date of Acceptance of the equipment and shall
continue for the period specified as the "term" stated above. All rental
payments shall be payable in advance. If one or more advance rental are
payable, the total amount of such advance rentals shall be set forth in the
Advance Rental Payment(s) section above and shall be due upon acceptance by
the Lessor of this lease. Advance rentals, when received by Lessor, shall be
applied to the first rent payment for the Equipment and the balance of the
advance rental shall be applied to the final rental payment or payments for
said Equipment. In no event shall any advance rent or any other rental
payment be refunded to Lessee.
(CONTINUE ON REVERSE SIDE)
- -------------------------------------------------------------------------------
THE UNDERSIGNED AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH ABOVE AND ON
THE REVERSE SIDE HEREOF, AND IN WITNESS WHEREOF, HEREBY EXECUTES THIS LEASE
AND CERTIFIES THAT THE UNDERSIGNED IS DULY AUTHORIZED TO EXECUTE SAME, ON
BEHALF OF OR AS THE LESSEE AND THAT HE HAS RECEIVED AN EXECUTED COPY OF THIS
LEASE.
Executed this 16 day of May , 1996
-------- ---------------------
NOTE: ANNEX I, ATTACHED HERETO AND INITIALED BY THE PARTIES, IS HEREBY
INCORPORATED IN AND MADE A PART OF THIS AGREEMENT.
LESSEE: T J KINKO'S, INC. LESSOR: U-SHIP, INC.
------------------------ --------------------------
BY: /s/ Todd Johnson TITLE: President BY: TITLE:
------------------ ---------- ----------------- ----------
<PAGE>
despite use of all reasonable best efforts, than as soon as is reasonably
possible. For purposes of this Agreement, the terms "malfunctions, errors or
defects" shall mean functional deviation between the Software and the U-Ship
Model 4100 Manual and "correct" shall mean solely to publish corrections
which will bring such malfunctions, errors or defects into compliance with
the Manual. Any changes in the User Manual shall be for the purpose of
removing errors in documentation, providing consistency of interpretation or
describing an update or enhancement made in the Software. This Agreement
does not cover maintenance service necessitated by accident, damage in
transit, neglect, misuse or abuse by RETAILER, disruption or surge of
electrical power, fire, flood or any other casualty, or repair or attempted
repair by any one other than U-SHIP or RETAILER at the direction of U-SHIP.
3.0-EQUIPMENT MAINTENANCE:
U-SHIP will provide maintenance and emergency repair services as required for
the Equipment. RETAILER may call for emergency repair or maintenance service
during U-SHIP's normal business hours, 7:00 a.m. to 9:00 p.m. EST.
Lubricants and other materials needed to service the Equipment except
consumable supplies, are provided without additional charge, and U-SHIP will
take all reasonable steps to provide such repair or maintenance within twelve
(12) hours of such call by RETAILER. Not included as normal wear is
coverage for repairs made necessary due to modification of the Equipment by
RETAILER, or accident, negligence, misuse by RETAILER, external forces such
as lightning, fire, smoke or water, loss of electrical power, power
fluctuation, service by other than U-SHIP employees or agents (except at the
direction of U-SHIP); or the use of supplies not meeting U-SHIP's
specifications, which specifications shall have been provided in advance to
RETAILER.
4.0-TRADEMARK STANDARDS:
U-SHIP is the exclusive owner of the name "U-SHIP" and all goodwill
associated therewith. RETAILER shall use the name "U-SHIP" only in the
precise manner, and in association with U-SHIP's goods and services,
prescribed periodically by U-SHIP. U-SHIP represents and warrants that
RETAILER may use the name "UPS" in displays and advertising, as provided or
approved by U-SHIP, in association with the goods and services provided by
U-SHIP hereunder.
5.0-COMMISSIONS DUE TO RETAILER: REMITTANCE OF PAYMENTS TO U-SHIP:
U-SHIP shall pay commissions to RETAILER equal to $2.10 for each package
processed at the Store and held by RETAILER for pickup. Commissions are
payable by the 15th day of each month for packages processed at the Store in
the preceding month. RETAILER shall remit to U-SHIP, within five (5)
business days after receipt by RETAILER of an invoice therefore, the full
amount of the cash service payments received by RETAILER in connection with
packages processed at the store for which payment was made in cash. U-SHIP
may offset commissions due to RETAILER against cash service payments received
due from RETAILER by furnishing RETAILER a detailed statement thereof. In
the event that RETAILER defaults in its obligation to remit to U-SHIP the
full amount of cash service payments as set forth above, U-SHIP may
discontinue the cash service option and require that all packages processed
at the store be paid by credit card. For purposes of this Section, a default
by RETAILER shall mean the failure of RETAILER to remit undisputed sums owed
within thirty (30) or fifteen (15) days after such sums are due and payable.
RETAILER agrees to enter into the necessary agreements to set up U-SHIP as an
"EFT (Electronic Funds Transfer) or other ATM-type" direct payment vendor if
cash transactions exceed 25% of total shipping transactions.
6.0-TERM:
The initial term of this Agreement shall be a thirty-six (36) month period
commencing on the date of the Lease. Thereafter, this Agreement shall be
automatically renewed for additional twelve (12) month periods and maybe
terminated by either party on thirty (30) days' prior written notice, during
such additional twelve (12) month periods.
7.0-TERMINATION:
The termination of the Lease shall automatically result in the termination of
this Agreement.
8.0-DISCLAIMER OF UN-STATED WARRANTIES; LIMITATION OF LIABILITY:
THERE ARE NOT UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE), NOT SPECIFIED HEREIN, RESPECTING THIS
AGREEMENT, THE EQUIPMENT, THE SOFTWARE OR THE SERVICES TO BE PROVIDED
HEREUNDER. NOTWITHSTANDING THE FOREGOING, U-SHIP AGREES TO INDEMNIFY, DEFEND
AND HOLD HARMLESS RETAILER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
LIABILITIES, EXPENSES AND DAMAGES OR INJURY TO PERSONS OR PROPERTY CAUSED BY
ANY ASC OR ANY EMPLOYEE OR AGENT OF U-SHIP, OR CLAIMS THAT ANY PORTION OF THE
ASC INFRINGES ANY COPYRIGHT OR PATENT RIGHT OF ANY THIRD PARTY. THIS
AGREEMENT STATES THE ENTIRE OBLIGATION OF U-SHIP WITH RESPECT TO THE ASC.
NEITHER U-SHIP NOR RETAILER SHALL BE LIABLE FOR ANY LOST PROFITS, OR FOR ANY
INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES HEREUNDER
Your signature is our assurance that you have the authority to enter into
this Agreement.
RETAILER ACCEPTANCE: U-SHIP INTERNATIONAL, LTD.
COMPANY. /S/ T. J. KINKO'S DATE 5/16/96 BY
------------------- -------- -----------------
BY /S/ G. TODD JOHNSON EFFECTIVE DATE UPON INSTALLATION
--------------------- ------------
EXHIBIT D
PAGE 4 OF 14
<PAGE>
ANNEX I TO LEASE CONTRACT
Provisions to the contrary notwithstanding, upon execution of a master
contract between U-Ship, Inc. and T J Kinko's, Inc. this lease will be
terminated and replaced by a form lease contract approved by U-Ship, Inc. and
T J Kinko's, Inc. for use with a master contract, and both parties hereto
shall sign such form, which shall become effective retroactive to the date of
execution hereof.
T J Kinko's, Inc. U-Ship, Inc.
By /S/ G. TODD JOHNSON By
----------------------- --------------------
EXHIBIT D
PAGE 5 OF 14
<PAGE>
U-SHIP INC.
SOFTWARE, INSTALLATION AND MAINTENANCE AGREEMENT
FOR KINKO'S CHICAGO 9
U-Ship Inc. herein referred to as "U-SHIP", hereby agrees to provide the
services set forth below with respect to the equipment used by RETAILER (the
"Equipment") pursuant to the terms of this agreement (the "Agreement") and
U-SHIP's proprietary software licensed to RETAILER pursuant to the terms of
this Agreement (the "Software").
1.0-INSTALLATION OF THE AUTOMATED SHIPPING SERVICE:
U-SHIP shall install the Equipment and Software (collectively, the "Automated
Shipping Center", "ASC") at the location designated by the RETAILER (the
"Store"). Installation shall include delivery, placement, electrical plug
in, and telephone hook-up to telephone and power hook-up requirements as
defined in Section 1.3. RETAILER will have the right to reject any ASC if,
the ASC or the Software has malfunctions, errors or defects.
1.1-GENERAL SERVICES PROVIDED BY U-SHIP:
U-SHIP shall, at its sole cost and expense:
/-/ handle all interactions and process all financial transactions with UPS
or other designated carriers
/-/ provide customer service, including customer package tracking and loss
recovery
/-/ process all credit card transactions
/-/ provide training to RETAILER personnel in the performance of their duties
/-/ prepare and submit standard usage reports to RETAILER no less than once
a month and no more often than once a week, at U-SHIP's discretion
/-/ provide signage and promotional materials and assistance to RETAILER,
including advertising materials for use by RETAILER
1.2-SUPPORT SERVICES PROVIDED BY U-SHIP:
U-SHIP shall provide on-line ASC maintenance and support through U-SHIP's
support staff who shall research the problem encountered by RETAILER and then
communicate the problem resolution to RETAILER. Upon taking a call from
RETAILER, the support engineer will review the problem with RETAILER and
record RETAILER's description of the problem. U-SHIP will then make all
reasonable attempts to solve the problem over the phone or through remote
technical diagnostics. If the problem requires additional research or
testing, the support representative will take the RETAILER'S phone number and
respond as quickly as possible.
When calling U-SHIP support staff, the RETAILER should have the following
information ready:
/-/ Automated Shipping Center #, the ASC # is printed on the top of every
receipt and in the Managers Screen.
/-/ The product function RETAILER was using when the problem occurred.
/-/ The process that was taking place when the problem occurred and when the
problem occurred?
/-/ The steps the RETAILER has taken since the problem occurred and the
information currently being displayed on the monitor?
The support representative will measure the severity of the problem in terms
of data integrity and time frame and will make all reasonable efforts to
resolve both to RETAILER's satisfaction.
1.3-RETAILER'S COMMITMENT:
RETAILER hereby makes the following commitments with respect to the
installation and operation of the ASC and agrees to provide the following at
its sole cost and expense:
/-/ provide five (5) square feet of high traffic retail floor space and
adequate storage facilities to provide secure package storage
/-/ provide for 110 volt power and a direct access telephone line hook-up at
the location where the ASC is to be installed
/-/ provide adequate personnel to accept packages, stamp receipts and
collect cash service payments
/-/ provide routine site services such as cleaning, restocking label and
printer paper
/-/ pay any and all federal, state or local taxes associated with the
services provided by the ASC except for taxes based on U-SHIP's income
/-/ provide adequate insurance with respect to the ASC equipment
2.0-SOFTWARE LICENSE AND MAINTENANCE:
U-SHIP grants RETAILER a non-exclusive, non-transferable license to use the
Software for the sole purpose of operating the ASC at the installed Store
Location. RETAILER acquires no right, title or interest in the Software
pursuant to this Agreement, and RETAILER shall take all steps necessary to
prevent the Software from being acquired or copied by unauthorized persons or
used other than as authorized in this Agreement or in writing by U-SHIP. The
software maintenance to be provided hereunder shall consist of toll free
telephone technical assistance provided by U-SHIP relating to Software
licensed to RETAILER hereunder. From time to time, U-SHIP may offer updates
and/or enhancements to the Software. Updates are features, minor
enhancements or problem corrections that are added to the Software and issued
periodically to customers of U-SHIP for no additional cost. U-SHIP may also
develop additional features that add significant functionality to the
Software which may be sold separately as enhancements. If the RETAILER
elects to buy an enhancement the RETAILER shall be charged the then current
price therefor, and such enhancements shall be covered by the terms of this
Agreement. U-SHIP will employ reasonable efforts to correct malfunctions,
errors or defects in the Software within twelve (12) hours of a report
thereof by RETAILER to U-SHIP, or if U-Ship is unable to provide such
correction within twelve (12) hours despite use of all reasonable best
efforts, than as soon as is reasonably possible. For purposes of this
Agreement, the terms
EXHIBIT D
PAGE 6 OF 14
<PAGE>
"malfunctions, errors or defects" shall mean functional deviation between the
Software and the U-Ship Model 4100 Manual and "correct" shall mean solely to
publish corrections which will bring such malfunctions, errors or defects
into compliance with the Manual. Any changes in the User Manual shall be for
the purpose of removing errors in documentation, providing consistency of
interpretation or describing an update or enhancement made in the Software.
This Agreement does not cover maintenance service necessitated by accident,
damage in transit, neglect, misuse or abuse by RETAILER, disruption or surge
of electrical power, fire, flood or any other casualty, or repair or
attempted repair by any one other than U-SHIP or RETAILER at the direction of
U-Ship.
3.0-EQUIPMENT USAGE / MAINTENANCE:
The RETAILER acquires no right title or interest in the hardware pursuant to
this agreement. U-SHIP will provide maintenance and emergency repair
services as required for the Equipment. RETAILER may call for emergency
repair or maintenance service during U-SHIP's normal business hours, 7:00
a.m. to 9:00 p.m. EST. Lubricants and other materials needed to service the
Equipment except consumable supplies, are provided without additional charge,
and U-SHIP will take all reasonable steps to provide such repair or
maintenance within twelve (12) hours of such call by RETAILER. Not included
as normal wear is coverage for repairs made necessary due to modification of
the Equipment by RETAILER, or accident, negligence, misuse by RETAILER,
external forces such as lightning, fire, smoke or water, loss of electrical
power, power fluctuation, service by other than U-SHIP employees or agents
(except at the direction of U-SHIP); or the use of supplies not meeting
U-SHIP's specifications, which specifications shall have been provided in
advance to RETAILER.
4.0-TRADEMARK STANDARDS:
U-SHIP is the exclusive owner of the name "U-SHIP" and all goodwill
associated therewith. RETAILER shall use the name "U-SHIP" only in the
precise manner, and in association with U-SHIP's goods and services,
prescribed periodically by U-SHIP. U-SHIP represents and warrants that
RETAILER may use the name "UPS" in displays and advertising, as provided or
approved by U-SHIP, in association with the goods and services provided by
U-SHIP hereunder.
5.0-COMMISSIONS DUE TO RETAILER: REMITTANCE OF PAYMENTS TO U-SHIP:
U-SHIP shall pay commissions to RETAILER to at $2.10 per package (pending
completion of corporate contract) processed at the Store and held by RETAILER
for pickup. Commissions are payable by the 15th day of each month for
packages processed at the Store in the preceding month. RETAILER shall remit
to U-SHIP, within five (5) business days after receipt by RETAILER of an
invoice therefore, the full amount of the cash service payments received by
RETAILER in connection with packages processed at the store for which payment
was made in cash. U-SHIP may offset commissions due to RETAILER against cash
service payments received due from RETAILER by furnishing RETAILER a detailed
statement thereof. In the event that RETAILER defaults in its obligation to
remit to U-SHIP the full amount of cash service payments as set forth above,
U-SHIP may discontinue the cash service option and require that all packages
processed at the store be paid by credit card. For purposes of this Section,
a default by RETAILER shall mean the failure of RETAILER to remit undisputed
sums owed within thirty (30) or fifteen (15) days after such sums are due and
payable. RETAILER agrees to enter into the necessary agreements to set up
U-SHIP as an "EFT (Electronic Funds Transfer) or other ATM-type" direct
payment vendor if cash transactions exceed 25% of total shipping transactions.
6.0-TERM:
The term of this Agreement shall be for a thirty-six month period commencing
on the date of installation and training. A $100 fee for installation and
maintenance will be billed monthly by U-Ship to Chicago 9 directly. This
agreement will be re-established with Kinko's Chicago 9 per the terms and
conditions of the Kinko's Inc. national program.
7.0-TERMINATION:
The termination of the Software, Installation and Marketing Agreement shall
automatically result in the termination of this Agreement.
8.0-DISCLAIMER OF UN-STATED WARRANTIES; LIMITATION OF LIABILITY:
THERE ARE NOT UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE), NOT SPECIFIED HEREIN, RESPECTING THIS
AGREEMENT, THE EQUIPMENT, THE SOFTWARE OR THE SERVICES TO BE PROVIDED
HEREUNDER. NOTWITHSTANDING THE FOREGOING, U-SHIP AGREES TO INDEMNIFY, DEFEND
AND HOLD HARMLESS RETAILER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
LIABLILITES, EXPENSES AND DAMAGES OR INJURY TO PERSONS OR PROPERTY CAUSED BY
ANY ASC OR ANY EMPLOYEE OR AGENT OF U-SHIP, OR CLAIMS THAT ANY PORTION OF THE
ASC INFRINGES ANY COPYRIGHT OR PATENT RIGHT OF ANY THIRD PARTY. THIS
AGREEMENT STATES THE ENTIRE OBLIGATION OF U-SHIP WITH RESPECT TO THE ASC.
NEITHER U-SHIP NOR RETAILER SHALL BE LIABILE FOR ANY LOST PROFITS, OR FOR ANY
INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES HEREUNDER
Your signature is our assurance that you have the authority to enter into
this Agreement.
RETAILER ACCEPTANCE: U-SHIP INC.
Kinko's Chicago 9 By
----------------------
By /S/ PAUL CALES Date AUGUST 15, 1996 Effective Date
------------------- ---------------- -----------------
EXHIBIT D
PAGE 7 OF 14
<PAGE>
U-SHIP INC.
SOFTWARE, INSTALLATION AND MAINTENANCE AGREEMENT
FOR KINKO'S OF BROWNSVILLE
U-Ship Inc. herein referred to as "U-SHIP", hereby agrees to provide the
services set forth below with respect to the equipment used by RETAILER (the
"Equipment") pursuant to the terms of this agreement (the "Agreement") and
U-SHIP's proprietary software licensed to RETAILER pursuant to the terms of
this Agreement (the "Software").
1.0-INSTALLATION OF THE AUTOMATED SHIPPING SERVICE:
U-SHIP shall install the Equipment and Software (collectively, the "Automated
Shipping Center", "ASC") at the location designated by the RETAILER (the
"Store"). Installation shall include delivery, placement, electrical plug
in, and telephone hook-up to telephone and power hook-up requirements as
defined in Section 1.3. RETAILER will have the right to reject any ASC if,
the ASC or the Software has malfunctions, errors or defects.
1.1-GENERAL SERVICES PROVIDED BY U-SHIP:
U-SHIP shall, at its sole cost and expense:
/-/ handle all interactions and process all financial transactions with UPS
or other designated carriers
/-/ provide customer service, including customer package tracking and loss
recovery
/-/ process all credit card transactions
/-/ provide training to RETAILER personnel in the performance of their duties
/-/ prepare and submit standard usage reports to RETAILER no less than once
a month and no more often than once a week, at U-SHIP's discretion
/-/ provide signage and promotional materials and assistance to RETAILER,
including advertising materials for use by RETAILER
1.2-SUPPORT SERVICES PROVIDED BY U-SHIP:
U-SHIP shall provide on-line ASC maintenance and support through U-SHIP's
support staff who shall research the problem encountered by RETAILER and then
communicate the problem resolution to RETAILER. Upon taking a call from
RETAILER, the support engineer will review the problem with RETAILER and
record RETAILER's description of the problem. U-SHIP will then make all
reasonable attempts to solve the problem over the phone or through remote
technical diagnostics. If the problem requires additional research or
testing, the support representative will take the RETAILER'S phone number and
respond as quickly as possible.
When calling U-SHIP support staff, the RETAILER should have the following
information ready:
/-/ Automated Shipping Center #, the ASC # is printed on the top of every
receipt and in the Managers Screen.
/-/ The product function RETAILER was using when the problem occurred.
/-/ The process that was taking place when the problem occurred and when the
problem occurred?
/-/ The steps the RETAILER has taken since the problem occurred and the
information currently being displayed on the monitor?
The support representative will measure the severity of the problem in terms
of data integrity and time frame and will make all reasonable efforts to
resolve both to RETAILER's satisfaction.
1.3-RETAILER'S COMMITMENT:
RETAILER hereby makes the following commitments with respect to the
installation and operation of the ASC and agrees to provide the following at
its sole cost and expense:
/-/ provide five (5) square feet of high traffic retail floor space and
adequate storage facilities to provide secure package storage
/-/ provide for 110 volt power and a direct access telephone line hook-up at
the location where the ASC is to be installed
/-/ provide adequate personnel to accept packages, stamp receipts and
collect cash service payments
/-/ provide routine site services such as cleaning, restocking label and
printer paper
/-/ pay any and all federal, state or local taxes associated with the
services provided by the ASC except for taxes based on U-SHIP's income
/-/ provide adequate insurance with respect to the ASC equipment
2.0-SOFTWARE LICENSE AND MAINTENANCE:
U-SHIP grants RETAILER a non-exclusive, non-transferable license to use the
Software for the sole purpose of operating the ASC at the installed Store
Location. RETAILER acquires no right, title or interest in the Software
pursuant to this Agreement, and RETAILER shall take all steps necessary to
prevent the Software from being acquired or copied by unauthorized persons or
used other than as authorized in this Agreement or in writing by U-SHIP. The
software maintenance to be provided hereunder shall consist of toll free
telephone technical assistance provided by U-SHIP relating to Software
licensed to RETAILER hereunder. From time to time, U-SHIP may offer updates
and/or enhancements to the Software. Updates are features, minor
enhancements or problem corrections that are added to the Software and issued
periodically to customers of U-SHIP for no additional cost. U-SHIP may also
develop additional features that add significant functionality to the
Software which may be sold separately as enhancements. If the RETAILER
elects to buy an enhancement the RETAILER shall be charged the then current
price therefor, and such enhancements shall be covered by the terms of this
Agreement. U-SHIP will employ reasonable efforts to correct malfunctions,
errors or defects in the Software within twelve (12) hours of a report
thereof by RETAILER to U-SHIP, or if U-Ship is unable to provide such
correction within twelve (12) hours despite use of all reasonable best
efforts, than as soon as is reasonably possible. For purposes of this
Agreement, the terms
EXHIBIT D
PAGE 8 OF 14
<PAGE>
"malfunctions, errors or defects" shall mean functional deviation between the
Software and the U-Ship Model 4100 Manual and "correct" shall mean solely to
publish corrections which will bring such malfunctions, errors or defects
into compliance with the Manual. Any changes in the User Manual shall be for
the purpose of removing errors in documentation, providing consistency of
interpretation or describing an update or enhancement made in the Software.
This Agreement does not cover maintenance service necessitated by accident,
damage in transit, neglect, misuse or abuse by RETAILER, disruption or surge
of electrical power, fire, flood or any other casualty, or repair or
attempted repair by any one other than U-SHIP or RETAILER at the direction of
U-Ship.
3.0-EQUIPMENT USAGE / MAINTENANCE:
The RETAILER acquires no right title or interest in the hardware pursuant to
this agreement. U-SHIP will provide maintenance and emergency repair
services as required for the Equipment. RETAILER may call for emergency
repair or maintenance service during U-SHIP's normal business hours, 7:00
a.m. to 9:00 p.m. EST. Lubricants and other materials needed to service the
Equipment except consumable supplies, are provided without additional charge,
and U-SHIP will take all reasonable steps to provide such repair or
maintenance within twelve (12) hours of such call by RETAILER. Not included
as normal wear is coverage for repairs made necessary due to modification of
the Equipment by RETAILER, or accident, negligence, misuse by RETAILER,
external forces such as lightning, fire, smoke or water, loss of electrical
power, power fluctuation, service by other than U-SHIP employees or agents
(except at the direction of U-SHIP); or the use of supplies not meeting
U-SHIP's specifications, which specifications shall have been provided in
advance to RETAILER.
4.0-TRADEMARK STANDARDS:
U-SHIP is the exclusive owner of the name "U-SHIP" and all goodwill
associated therewith. RETAILER shall use the name "U-SHIP" only in the
precise manner, and in association with U-SHIP's goods and services,
prescribed periodically by U-SHIP. U-SHIP represents and warrants that
RETAILER may use the name "UPS" in displays and advertising, as provided or
approved by U-SHIP, in association with the goods and services provided by
U-SHIP hereunder.
5.0-COMMISSIONS DUE TO RETAILER: REMITTANCE OF PAYMENTS TO U-SHIP:
U-SHIP shall pay commissions to RETAILER to at $2.10 per package (pending
completion of corporate contract) processed at the Store and held by RETAILER
for pickup. Commissions are payable by the 15th day of each month for
packages processed at the Store in the preceding month. RETAILER shall remit
to U-SHIP, within five (5) business days after receipt by RETAILER of an
invoice therefore, the full amount of the cash service payments received by
RETAILER in connection with packages processed at the store for which payment
was made in cash. U-SHIP may offset commissions due to RETAILER against cash
service payments received due from RETAILER by furnishing RETAILER a detailed
statement thereof. In the event that RETAILER defaults in its obligation to
remit to U-SHIP the full amount of cash service payments as set forth above,
U-SHIP may discontinue the cash service option and require that all packages
processed at the store be paid by credit card. For purposes of this Section,
a default by RETAILER shall mean the failure of RETAILER to remit undisputed
sums owed within thirty (30) or fifteen (15) days after such sums are due and
payable. RETAILER agrees to enter into the necessary agreements to set up
U-SHIP as an "EFT (Electronic Funds Transfer) or other ATM-type" direct
payment vendor if cash transactions exceed 25% of total shipping transactions.
6.0-TERM:
The term of this Agreement shall be for a thirty-six month period commencing
on the date of installation and training. A $100 fee for installation and
maintenance will be billed monthly by U-Ship to Chicago 9 directly. This
agreement will be re-established with Kinko's Chicago 9 per the terms and
conditions of the Kinko's Inc. national program.
7.0-TERMINATION:
The termination of the Software, Installation and Marketing Agreement shall
automatically result in the termination of this Agreement.
8.0-DISCLAIMER OF UN-STATED WARRANTIES; LIMITATION OF LIABILITY:
THERE ARE NOT UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE), NOT SPECIFIED HEREIN, RESPECTING THIS
AGREEMENT, THE EQUIPMENT, THE SOFTWARE OR THE SERVICES TO BE PROVIDED
HEREUNDER. NOTWITHSTANDING THE FOREGOING, U-SHIP AGREES TO INDEMNIFY, DEFEND
AND HOLD HARMLESS RETAILER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
LIABLILITES, EXPENSES AND DAMAGES OR INJURY TO PERSONS OR PROPERTY CAUSED BY
ANY ASC OR ANY EMPLOYEE OR AGENT OF U-SHIP, OR CLAIMS THAT ANY PORTION OF THE
ASC INFRINGES ANY COPYRIGHT OR PATENT RIGHT OF ANY THIRD PARTY. THIS
AGREEMENT STATES THE ENTIRE OBLIGATION OF U-SHIP WITH RESPECT TO THE ASC.
NEITHER U-SHIP NOR RETAILER SHALL BE LIABILE FOR ANY LOST PROFITS, OR FOR ANY
INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES HEREUNDER
Your signature is our assurance that you have the authority to enter into
this Agreement.
RETAILER ACCEPTANCE: U-SHIP INC.
Kinko's of Brownsville By
----------------------
By /S/ DAVID RILEY Date JULY 23, 1996 Effective Date
------------------- ---------------- -----------------
EXHIBIT D
PAGE 9 OF 14
<PAGE>
LESSEE SUPPLIER OF
EQUIPMENT
Name Kinko's of Arizona U-Ship International, Ltd.
Address 4110 N. Scottsdale Road Ste. #150 5583 West 78th Street
City Scottsdale State AZ Zip 85251 Edina, MN 55439
(612) 941-4080
Contact Brenda Helfert
Telephone Number 602.990.3636
- --------------------------------------------------------------------------------
QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER(S)
1 U-SHIP MODEL 4100 AUTOMATED SHIPPING CENTER(S) 95090011
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
INITIAL PAYMENT MONTHLY PAYMENTS TERM AND NUMBER OF PAYMENTS ber of
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Total Lease Term: 60
First Month $160.20 Base Rent $150.00 Advanced Rentals Paid: 1
Documentation Fee $ 25.00 Sales/Use tax $ 10.20 Lease Rentals Remaining: 59
Total Initial Payment $185.20 Total Monthly Payment $160.20 Payments Due And Payable As Invoiced
- ----------------------------------------------------------------------------------------------------------
</TABLE>
TERMS AND CONDITIONS
LESSEE HEREBY WARRANTS AND REPRESENTS THAT THE EQUIPMENT WILL BE USED FOR
BUSINESS PURPOSES, AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD, OR AGRICULTURAL
PURPOSES. LESSEE ACKNOWLEDGES THAT THE LESSOR AND ITS ASSIGNS HAS RELIED
UPON THIS REPRESENTATION IN ENTERING INTO THIS LEASE.
1. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT,
NOR MANUFACTURE'S AGENT AND LESSEE REPRESENTS THAT LESSEE HAS SELECTED THE
EQUIPMENT LEASED HEREUNDER BASED UPON LESSEE'S JUDGMENT PRIOR TO HAVING
REQUESTED LESSOR TO PURCHASE THE SAME FOR LEASING TO LESSEE, AND LESSEE
AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS OF A DESIGN, SIZE, FITNESS, AND
CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS
SUITABLE AND FIT FOR ITS ATTENDED PURPOSES. LESSEE FURTHER AGREES THAT LESSOR
HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE,
DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO
ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUITABILITY, DURABILITY,
FITNESS FOR USE AND MERCHANTABILITY OF ANY SUCH EQUIPMENT, THE PURPOSES AND
USES OF THE LESSEE OR OTHERWISE. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO
MAKE CLAIM AGAINST LESSOR HEREIN FOR BREACH OF ANY WARRANTY OF ANY KIND
WHATSOEVER, LESSOR HEREBY PASSES TO LESSEE ALL WARRANTIES, IF ANY RECEIVED BY
LESSOR BY VIRTUE OF ITS OWNERSHIP OF THE EQUIPMENT. LESSOR SHALL NOT BE
LIABLE TO LESSEE FOR ANY LOSS DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED
DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER FOR THE USE OF THE
MAINTENANCE THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE
REPAIRS, SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO
PROVIDE ANY THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF
OR FOR ANY LOSS OF ANY BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER
CAUSED. NO DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE
OBLIGATION TO PAY RENT, OR ANY OTHER OBLIGATION UNDER THIS AGREEMENT TO
LESSOR OR ITS ASSIGNEE. LESSEE FURTHER AGREES THAT LESSOR HAS MADE AND MAKES
NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATION OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, INTERFERENCE ORE INFRINGEMENT WITH THE USE OR ENJOYMENT
OF THE EQUIPMENT, DURABILITY OR SUITABILITY OF THE EQUIPMENT FOR THE PURPOSES
OR THE USES OF LESSEE OR OTHERWISE, OR THE LIKE. THERE IS NO EXPRESS OR
IMPLIED WARRANTY FROM LESSOR THAT THE GOODS WILL BE FIT FOR A PARTICULAR
PURPOSE, MERCHANTABLE OR FREE FROM ANY CLAIMS OF INTERFERENCE OR
INFRINGEMENT. LESSEE AGREES THAT, WITH RESPECT TO ANY CLAIMS AGAINST LESSOR,
THE EQUIPMENT IS DELIVERED "AS IS" AND "WITH ALL FAULTS". LESSEE
SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIM AGAINST LESSOR HEREIN FOR BREACH
OF ANY WARRANTY OF ANY KIND WHATSOEVER, LESSOR SHALL NOT BE LIABLE TO LESSEE
FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR
INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, FOR THE USE OR THE MAINTENANCE
THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE REPAIRS,
SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY
THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USES THEREOF OR FOR ANY
LOSS OF BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. LESSEE
ACCORDINGLY AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS
OF ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. LESSOR SHALL HAVE NO
OBLIGATION TO INSTALL, ERECT, TEST, SERVICE, ORE MAINTAIN THE EQUIPMENT.
LESSEE SHALL LOOK TO THE MANUFACTURER AND/OR SELLER FOR ANY CLAIM RELATED TO
THE EQUIPMENT. Lessor hereby acknowledges that any manufacture's and/or
seller's warranties are for the benefit of both lessor and lessee. To the
extent permitted by the manufacturer or seller, and provided Lessee is not in
default under this Lease, Lessor shall make available to Lessee all
manufacturer and/or seller warranties with respect to equipment. Lessee
understands and agrees that the Lease is an equipment lease only, and the
lease does not include providing services in any matter related to or arising
out of installation or operation of the equipment supplied thereunder.
Notwithstanding any thing to the contrary contained in the Lease or any
supporting schedules, Lessee understands and agrees that Lessor shall not be
obliged in any manner to furnish or warrant the availability or suitability
of any services rendered or to be rendered in connection with the equipment,
including but not limited to, support or other services of any kind
whatsoever. Lessee understands and agrees that any and all services rendered
or to be rendered in connection wit the equipment including the installation,
operation or maintenance thereof shall be provided solely by the Lessee under
separate agreement between the Lessee and the provider of the services.
Notwithstanding the foregoing, Lessee's obligations to pay the rentals or
otherwise under this Lease shall and are absolute and unconditional.
2. LEASE: Lessor hereby leases to Lessee and Lessee hereby hires and takes
from Lessor the personal property described above and on any attached
supplemental "Schedule A" (Hereinafter with all replacement parts, additions,
repairs and accessories incorporated therein and/or affix thereto, referred
to as "Equipment").
3. TERM AND RENT: THIS LEASE IS NON/CANCELABLE FOR THE TERM STATED ABOVE and
shall commence upon the Date of Acceptance of the equipment and shall
continue for the period specified as the "term" stated above. All rental
payments shall be payable in advance. If one or more advance rental are
payable, the total amount of such advance rentals shall be set forth in the
Advance Rental Payment(s) section above and shall be due upon acceptance by
the Lessor of this lease. Advance rentals, when received by Lessor, shall be
applied to the first rent payment for the Equipment and the balance of the
advance rental shall be applied to the final rental payment or payments for
said Equipment. In no event shall any advance rent or any other rental
payment be refunded to Lessee.
(CONTINUE ON REVERSE SIDE)
- -------------------------------------------------------------------------------
THE UNDERSIGNED AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH ABOVE AND ON
THE REVERSE SIDE HEREOF, AND IN WITNESS WHEREOF, HEREBY EXECUTES THIS LEASE
AND CERTIFIES THAT THE UNDERSIGNED IS DULY AUTHORIZED TO EXECUTE SAME, ON
BEHALF OF OR AS THE LESSEE AND THAT HE HAS RECEIVED AN EXECUTED COPY OF THIS
LEASE
Executed this 20 day of September , 1995
------------ -------------------
LESSEE: Kinko's of Arizona LESSOR: MLC Commercial Leasing
---------------------- ----------------------------
BY:/s/ Brenda Helfert TITLE: President BY: /S/ Carl Beaumont TITLE: President
------------------- ----------- ------------------- ----------
EXHIBIT D
PAGE 10 OF 14
<PAGE>
MLC COMMERCIAL LEASING
604-251 TWELVE OAKS CENTER
15500 WAYZATA BOULEVARD
WAYZATA, MN 55391
EQUIPMENT LEASE SCHEDULE
SCHEDULE NO. ONE TO LEASE AGREEMENT # 818
--------------- ------------------
DATED 11/21/95
-------------------------
1. DESCRIPTION OF LEASED EQUIPMENT: 1 U-Ship Model 4100 Automated
------- Shipping Center(s)
Serial # 95110013
2. TERM AND RENTAL PAYMENTS:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
INITIAL PAYMENT MONTHLY TERM AND NUMBER
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
Total Lease Term: 60
First Month $160.20 Base Rent $150.00 Advanced Rentals Paid: 1
Documentation Fee Sales/Use tax $ 10.20 Lease Rentals
Total Initial Payment $160.20 Total Monthly Payment $160.20 (Payments Due And Payable
As Invoiced)
- ---------------------------------------------------------------------------------------------
</TABLE>
3. OTHER PROVISIONS:
The undersigned agree to all the terms and conditions set forth above and IN
WITNESS WHEREOF LESSOR and LESSEE hereby execute this Lease this 27 day of
-----
day of NOVEMBER, 1995.
----------------
MLC COMMERCIAL LEASING KINKO'S OF ARIZONA
- ------------------------------- -------------------------------------
LESSOR LESSEE
By: /S/ CARL BEAUMONT By: /S/ DANNY WILSON
--------------------------- ---------------------------------
Title: PRESIDENT Title: REGIONAL MANAGER
------------------------- ------------------------------
EXHIBIT D
PAGE 11 OF 14
<PAGE>
LESSEE SUPPLIER OF
EQUIPMENT
Name KINKO'S OF MINNESOTA, INC. U-Ship International, Ltd.
------------------------------
Address 318 14TH AVENUE S.E. 5583 West 78th Street
----------------------
City MINNEAPOLIS State MN Zip 55414 Edina, MN 55439
---------------- (612) 941-4080
Contact Jeff Wilkin
Telephone Number 612.623.0322
- --------------------------------------------------------------------------------
QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER(S)
- --------------------------------------------------------------------------------
95080038 95080039
95090022 U-Ship Model 4100 Automated Shipping Center(s) 95080040 95080041
94120022 94120021
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
INITIAL PAYMENT MONTHLY PAYMENTS TERM AND NUMBER OF PAYMENTS ber of
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Total Lease Term: 60
First Month $958.50 Base Rent $900.00 Advanced Rentals Paid: 1
Documentation Fee $ 25.00 Sales/Use tax $ 58.50 Lease Rentals Remaining: 59
Total Initial Payment $983.50 Total Monthly Payment $958.50 Payments Due And Payable As Invoiced
- ----------------------------------------------------------------------------------------------------------
</TABLE>
TERMS AND CONDITIONS
LESSEE HEREBY WARRANTS AND REPRESENTS THAT THE EQUIPMENT WILL BE USED FOR
BUSINESS PURPOSES, AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD, OR AGRICULTURAL
PURPOSES. LESSEE ACKNOWLEDGES THAT THE LESSOR AND ITS ASSIGNS HAS RELIED UPON
THIS REPRESENTATION IN ENTERING INTO THIS LEASE.
1. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT,
NOR MANUFACTURE'S AGENT AND LESSEE REPRESENTS THAT LESSEE HAS SELECTED THE
EQUIPMENT LEASED HEREUNDER BASED UPON LESSEE'S JUDGMENT PRIOR TO HAVING
REQUESTED LESSOR TO PURCHASE THE SAME FOR LEASING TO LESSEE, AND LESSEE AGREES
THAT THE EQUIPMENT LEASED HEREUNDER IS OF A DESIGN, SIZE, FITNESS, AND CAPACITY
SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS SUITABLE AND
FIT FOR ITS ATTENDED PURPOSES. LESSEE FURTHER AGREES THAT LESSOR HAS MADE AND
MAKES NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUITABILITY, DURABILITY, FITNESS
FOR USE AND MERCHANTABILITY OF ANY SUCH EQUIPMENT, THE PURPOSES AND USES OF THE
LESSEE OR OTHERWISE. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIM
AGAINST LESSOR HEREIN FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER, LESSOR
HEREBY PASSES TO LESSEE ALL WARRANTIES, IF ANY RECEIVED BY LESSOR BY VIRTUE OF
ITS OWNERSHIP OF THE EQUIPMENT. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY
LOSS DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY
ANY EQUIPMENT LEASED HEREUNDER FOR THE USE OF THE MAINTENANCE THEREOF, OR FOR
THE FAILURE OF OPERATIONS THEREOF, OR FOR THE REPAIRS, SERVICE, OR ADJUSTMENT
THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF, OR BY ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF OR FOR ANY LOSS OF ANY BUSINESS
OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. NO DEFECT OR UNFITNESS OF
THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT, OR ANY OTHER
OBLIGATION UNDER THIS AGREEMENT TO LESSOR OR ITS ASSIGNEE. LESSEE FURTHER
AGREES THAT LESSOR HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF
WHATSOEVER NATURE, DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY REPRESENTATION OR WARRANTIES WITH RESPECT TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTERFERENCE ORE
INFRINGEMENT WITH THE USE OR ENJOYMENT OF THE EQUIPMENT, DURABILITY OR
SUITABILITY OF THE EQUIPMENT FOR THE PURPOSES OR THE USES OF LESSEE OR
OTHERWISE, OR THE LIKE. THERE IS NO EXPRESS OR IMPLIED WARRANTY FROM LESSOR
THAT THE GOODS WILL BE FIT FOR A PARTICULAR PURPOSE, MERCHANTABLE OR FREE FROM
ANY CLAIMS OF INTERFERENCE OR INFRINGEMENT. LESSEE AGREES THAT, WITH RESPECT
TO ANY CLAIMS AGAINST LESSOR, THE EQUIPMENT IS DELIVERED "AS IS" AND "WITH ALL
FAULTS". LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIM AGAINST LESSOR
HEREIN FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER, LESSOR SHALL NOT BE
LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED
DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, FOR THE USE OR THE
MAINTENANCE THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE
REPAIRS, SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE
ANY THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USES THEREOF OR FOR
ANY LOSS OF BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER CAUSED.
LESSEE ACCORDINGLY AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR
LOSS OF ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. LESSOR SHALL HAVE NO
OBLIGATION TO INSTALL, ERECT, TEST, SERVICE, ORE MAINTAIN THE EQUIPMENT. LESSEE
SHALL LOOK TO THE MANUFACTURER AND/OR SELLER FOR ANY CLAIM RELATED TO THE
EQUIPMENT. Lessor hereby acknowledges that any manufacture's and/or seller's
warranties are for the benefit of both lessor and lessee. To the extent
permitted by the manufacturer or seller, and provided Lessee is not in default
under this Lease, Lessor shall make available to Lessee all manufacturer and/or
seller warranties with respect to equipment. Lessee understands and agrees
that the Lease is an equipment lease only, and the lease does not include
providing services in any matter related to or arising out of installation or
operation of the equipment supplied thereunder. Notwithstanding any thing to
the contrary contained in the Lease or any supporting schedules, Lessee
understands and agrees that Lessor shall not be obliged in any manner to
furnish or warrant the availability or suitability of any services rendered or
to be rendered in connection with the equipment, including but not limited to,
support or other services of any kind whatsoever. Lessee understands and agrees
that any and all services rendered or to be rendered in connection wit the
equipment including the installation, operation or maintenance thereof shall be
provided solely by the Lessee under separate agreement between the Lessee and
the provider of the services. Notwithstanding the foregoing, Lessee's
obligations to pay the rentals or otherwise under this Lease shall and are
absolute and unconditional.
2. LEASE: Lessor hereby leases to Lessee and Lessee hereby hires and takes from
Lessor the personal property described above and on any attached supplemental
"Schedule A" (Hereinafter with all replacement parts, additions, repairs and
accessories incorporated therein and/or affix thereto, referred to as
"Equipment").
3. TERM AND RENT: THIS LEASE IS NON/CANCELABLE FOR THE TERM STATED ABOVE and
shall commence upon the Date of Acceptance of the equipment and shall continue
for the period specified as the "term" stated above. All rental payments shall
be payable in advance. If one or more advance rental are payable, the total
amount of such advance rentals shall be set forth in the Advance Rental
Payment(s) section above and shall be due upon acceptance by the Lessor of this
lease. Advance rentals, when received by Lessor, shall be applied to the first
rent payment for the Equipment and the balance of the advance rental shall be
applied to the final rental payment or payments for said Equipment. In no
event shall any advance rent or any other rental payment be refunded to Lessee.
(CONTINUE ON REVERSE SIDE)
- -------------------------------------------------------------------------------
THE UNDERSIGNED AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH ABOVE AND ON
THE REVERSE SIDE HEREOF, AND IN WITNESS WHEREOF, HEREBY EXECUTES THIS LEASE AND
CERTIFIES THAT THE UNDERSIGNED IS DULY AUTHORIZED TO EXECUTE SAME, ON BEHALF OF
OR AS THE LESSEE AND THAT HE HAS RECEIVED AN EXECUTED COPY OF THIS LEASE
Executed this 24 day of August, 1995
------ ---------------
LESSEE: Kinko's of Minnesota, Inc. LESSOR: MLC Commercial Leasing
----------------------------- --------------------------
BY: /s/ Jeff Wilkin TITLE: President BY: /s/ Carl Beaumont TITLE: President
----------------- ---------- ------------------- ----------
EXHIBIT D
PAGE 12 OF 14
<PAGE>
LESSEE SUPPLIER OF
EQUIPMENT
Name KINKO'S OF MINNESOTA, INC. U-Ship International, Ltd.
------------------------------
Address 318 14TH AVENUE S.E. 5583 West 78th Street
----------------------
City MINNEAPOLIS State MN Zip 55414 Edina, MN 55439
---------------- (612) 941-4080
Contact Jeff Wilkin
Telephone Number 612.623.0322
- --------------------------------------------------------------------------------
QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER(S)
- --------------------------------------------------------------------------------
1 U-SHIP MODEL 4100 AUTOMATED SHIPPING CENTER(S) 95090022-1
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
INITIAL PAYMENT MONTHLY PAYMENTS TERM AND NUMBER OF PAYMENTS ber of
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Total Lease Term: 60
First Month $159.75 Base Rent $150.00 Advanced Rentals Paid: 1
Documentation Fee $ 25.00 Sales/Use tax $ 9.75 Lease Rentals Remaining: 59
Total Initial Payment $184.75 Total Monthly Payment $159.75 Payments Due And Payable As Invoiced
- ----------------------------------------------------------------------------------------------------------
</TABLE>
TERMS AND CONDITIONS
LESSEE HEREBY WARRANTS AND REPRESENTS THAT THE EQUIPMENT WILL BE USED FOR
BUSINESS PURPOSES, AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD, OR AGRICULTURAL
PURPOSES. LESSEE ACKNOWLEDGES THAT THE LESSOR AND ITS ASSIGNS HAS RELIED UPON
THIS REPRESENTATION IN ENTERING INTO THIS LEASE.
1. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT,
NOR MANUFACTURE'S AGENT AND LESSEE REPRESENTS THAT LESSEE HAS SELECTED THE
EQUIPMENT LEASED HEREUNDER BASED UPON LESSEE'S JUDGMENT PRIOR TO HAVING
REQUESTED LESSOR TO PURCHASE THE SAME FOR LEASING TO LESSEE, AND LESSEE AGREES
THAT THE EQUIPMENT LEASED HEREUNDER IS OF A DESIGN, SIZE, FITNESS, AND CAPACITY
SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS SUITABLE AND
FIT FOR ITS ATTENDED PURPOSES. LESSEE FURTHER AGREES THAT LESSOR HAS MADE AND
MAKES NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUITABILITY, DURABILITY, FITNESS
FOR USE AND MERCHANTABILITY OF ANY SUCH EQUIPMENT, THE PURPOSES AND USES OF THE
LESSEE OR OTHERWISE. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIM
AGAINST LESSOR HEREIN FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER, LESSOR
HEREBY PASSES TO LESSEE ALL WARRANTIES, IF ANY RECEIVED BY LESSOR BY VIRTUE OF
ITS OWNERSHIP OF THE EQUIPMENT. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY
LOSS DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY
ANY EQUIPMENT LEASED HEREUNDER FOR THE USE OF THE MAINTENANCE THEREOF, OR FOR
THE FAILURE OF OPERATIONS THEREOF, OR FOR THE REPAIRS, SERVICE, OR ADJUSTMENT
THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF, OR BY ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF OR FOR ANY LOSS OF ANY BUSINESS
OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. NO DEFECT OR UNFITNESS OF
THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT, OR ANY OTHER
OBLIGATION UNDER THIS AGREEMENT TO LESSOR OR ITS ASSIGNEE. LESSEE FURTHER
AGREES THAT LESSOR HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF
WHATSOEVER NATURE, DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY REPRESENTATION OR WARRANTIES WITH RESPECT TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTERFERENCE ORE
INFRINGEMENT WITH THE USE OR ENJOYMENT OF THE EQUIPMENT, DURABILITY OR
SUITABILITY OF THE EQUIPMENT FOR THE PURPOSES OR THE USES OF LESSEE OR
OTHERWISE, OR THE LIKE. THERE IS NO EXPRESS OR IMPLIED WARRANTY FROM LESSOR
THAT THE GOODS WILL BE FIT FOR A PARTICULAR PURPOSE, MERCHANTABLE OR FREE FROM
ANY CLAIMS OF INTERFERENCE OR INFRINGEMENT. LESSEE AGREES THAT, WITH RESPECT
TO ANY CLAIMS AGAINST LESSOR, THE EQUIPMENT IS DELIVERED "AS IS" AND "WITH ALL
FAULTS". LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIM AGAINST LESSOR
HEREIN FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER, LESSOR SHALL NOT BE
LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED
DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, FOR THE USE OR THE
MAINTENANCE THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE
REPAIRS, SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE
ANY THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USES THEREOF OR FOR
ANY LOSS OF BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER CAUSED.
LESSEE ACCORDINGLY AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR
LOSS OF ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. LESSOR SHALL HAVE NO
OBLIGATION TO INSTALL, ERECT, TEST, SERVICE, ORE MAINTAIN THE EQUIPMENT. LESSEE
SHALL LOOK TO THE MANUFACTURER AND/OR SELLER FOR ANY CLAIM RELATED TO THE
EQUIPMENT. Lessor hereby acknowledges that any manufacture's and/or seller's
warranties are for the benefit of both lessor and lessee. To the extent
permitted by the manufacturer or seller, and provided Lessee is not in default
under this Lease, Lessor shall make available to Lessee all manufacturer and/or
seller warranties with respect to equipment. Lessee understands and agrees
that the Lease is an equipment lease only, and the lease does not include
providing services in any matter related to or arising out of installation or
operation of the equipment supplied thereunder. Notwithstanding any thing to
the contrary contained in the Lease or any supporting schedules, Lessee
understands and agrees that Lessor shall not be obliged in any manner to
furnish or warrant the availability or suitability of any services rendered or
to be rendered in connection with the equipment, including but not limited to,
support or other services of any kind whatsoever. Lessee understands and agrees
that any and all services rendered or to be rendered in connection wit the
equipment including the installation, operation or maintenance thereof shall be
provided solely by the Lessee under separate agreement between the Lessee and
the provider of the services. Notwithstanding the foregoing, Lessee's
obligations to pay the rentals or otherwise under this Lease shall and are
absolute and unconditional.
2. LEASE: Lessor hereby leases to Lessee and Lessee hereby hires and takes from
Lessor the personal property described above and on any attached supplemental
"Schedule A" (Hereinafter with all replacement parts, additions, repairs and
accessories incorporated therein and/or affix thereto, referred to as
"Equipment").
3. TERM AND RENT: THIS LEASE IS NON/CANCELABLE FOR THE TERM STATED ABOVE and
shall commence upon the Date of Acceptance of the equipment and shall continue
for the period specified as the "term" stated above. All rental payments shall
be payable in advance. If one or more advance rental are payable, the total
amount of such advance rentals shall be set forth in the Advance Rental
Payment(s) section above and shall be due upon acceptance by the Lessor of this
lease. Advance rentals, when received by Lessor, shall be applied to the first
rent payment for the Equipment and the balance of the advance rental shall be
applied to the final rental payment or payments for said Equipment. In no
event shall any advance rent or any other rental payment be refunded to Lessee.
(CONTINUE ON REVERSE SIDE)
- -------------------------------------------------------------------------------
THE UNDERSIGNED AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH ABOVE AND ON
THE REVERSE SIDE HEREOF, AND IN WITNESS WHEREOF, HEREBY EXECUTES THIS LEASE
AND CERTIFIES THAT THE UNDERSIGNED IS DULY AUTHORIZED TO EXECUTE SAME, ON
BEHALF OF OR AS THE LESSEE AND THAT HE HAS RECEIVED AN EXECUTED COPY OF THIS
LEASE
Executed this 26th day of September, 1995
------ ------------------
LESSEE: Kinko's of Minnesota, Inc. LESSOR: MLC Commercial Leasing
---------------------------- ----------------------------
BY:/s/ Jeff Wilkin TITLE: Regional Manager BY:/s/ Carl Beaumont TITLE: President
--------------- ---------------- ----------------- ---------
EXHIBIT D
PAGE 13 OF 14
<PAGE>
MLC COMMERCIAL LEASING
604-251 TWELVE OAKS CENTER
15500 WAYZATA BOULEVARD
WAYZATA, MN 55391
EQUIPMENT LEASE SCHEDULE
SCHEDULE NO. ONE TO LEASE AGREEMENT # 813
----------- -------------------
DATED 9/26/95
----------------------------
1. DESCRIPTION OF LEASED EQUIPMENT: 1 U-Ship Model 4100 Automated
---- Shipping Center(s)
Serial # 95090022
2. TERM AND RENTAL PAYMENTS:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
INITIAL PAYMENT MONTHLY TERM AND NUMBER
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
Total Lease Term: 60
First Month $159.75 Base Rent $150.00 Advanced Rentals Paid: 1
Documentation Fee Sales/Use tax $ 9.75 Lease Rentals Remaining 59
Total Initial Payment $159.75 Total Monthly Payment $159.75 (Payments Due And Payable
As Invoiced)
- ---------------------------------------------------------------------------------------------
</TABLE>
3. OTHER PROVISIONS:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________
The undersigned agree to all the terms and conditions set forth above and IN
WITNESS WHEREOF LESSOR and LESSEE hereby execute this Lease this 26 day
------
of SEPTEMBER, 1995.
------------------
MLC COMMERCIAL LEASING KINKO'S OF MINNESOTA, INC.
- --------------------------------- -------------------------------------
LESSOR LESSEE
By: /S/ CARL BEAUMONT By: /S/ JEFF WILKIN
----------------------------- ---------------------------------
Title: PRESIDENT Title: REGIONAL MANAGER
-------------------------- ------------------------------
EXHIBIT D
PAGE 14 OF 14
<PAGE>
EXHIBIT E
ASC SITE SPECIFICATIONS
The following specifications must be met prior to a U-Ship ASC being installed
and training conducted at a Kinko's location:
1. Analog telephone line installed and working; RJ11 wall-mounted
phone jack using a direct access phone line; Note, it does not
need to be a dedicated telephone line.
2. Electrical Power dedicated outlet to a 120 VAC; 15 amps
3. A dedicated package drop-off location within sight of the ASC unit
4. Location where ASC unit will not be placed in direct sunlight or
exposed to extreme temperatures
5. Area for overhead or wall mounted UPS/U-Ship sign
If one or more of the above specifications are not met prior to installation
and training, U-Ship shall have the right to bill Kinko's at cost for any
incremental or excessive expenses incurred because of failure to meet this
specifications. These expenses may involve, but are not limited to,
additional travel expenses (including airfare, hotels, transportation and
meals) additional training (personnel) expenses and any unusual UPS charges.
U-Ship's agreement calls for training a site only once on a prearranged date.
Additional training expenses for not meeting the above specifications, will
be the sole responsibility of Kinko's.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 2,696,134
<SECURITIES> 0
<RECEIVABLES> 78,979
<ALLOWANCES> 0
<INVENTORY> 901,203
<CURRENT-ASSETS> 3,676,316
<PP&E> 665,894
<DEPRECIATION> (249,404)
<TOTAL-ASSETS> 4,092,806
<CURRENT-LIABILITIES> 903,710
<BONDS> 58,259
0
0
<COMMON> 16,068
<OTHER-SE> 3,114,769
<TOTAL-LIABILITY-AND-EQUITY> 4,092,806
<SALES> 196,786
<TOTAL-REVENUES> 242,236
<CGS> 170,525
<TOTAL-COSTS> 170,525
<OTHER-EXPENSES> 454,793
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,739
<INCOME-PRETAX> (412,082)
<INCOME-TAX> 0
<INCOME-CONTINUING> (412,082)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (412,082)
<EPS-PRIMARY> (0.10)
<EPS-DILUTED> (0.10)
</TABLE>
