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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB/A
Amendment No. 1
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number 000-21909
PIRANHA INTERACTIVE PUBLISHING, INC.
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(Exact name of small business issuer as specified in its charter)
Nevada 86-0779928
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1839 West Drake, Suite B, Tempe, Arizona 85283
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(Address of principal executive offices)
602-491-0500
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(Registrant's telephone number, including area code)
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(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer (1) filed all reports required to be filed by 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. [X] Yes [ ] No
As of July 31, 1998, the number of outstanding shares of the Registrant's
Common Stock was 3,200,000.
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EXPLANATORY NOTE
This Amendment No. 1 to the Company's Quarterly Report on Form 10-QSB for the
Quarter Ended June 30, 1998, is being filed solely for the purpose of filing
Exhibit 10.1 to such report.
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PART II -- OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS.
Exhibit
Number Description
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10.1 -- Computer Software Distribution Agreement between Ingram
Micro, Inc. and the Registrant dated June 30, 1998 (1)
27.1 -- Financial Data Schedule (2)
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(1) The Company has requested confidential treatment for certain
portions of this agreement. An excised version has been
filed herewith.
(2) Previously filed.
(B) REPORTS ON FORM 8-K.
None.
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SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused
this amendment to its report to be signed on its behalf by the undersigned,
thereunto duly authorized.
PIRANHA INTERACTIVE PUBLISHING, INC.
Date: September 3, 1998 /s/ Timothy M. Brannan
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Timothy M. Brannan, Chief Executive Officer
Date: September 3, 1998 /s/ Keith P. Higginson
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Keith P. Higginson, Chief Financial Officer
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EXPLANATORY NOTE
PIRANHA INTERACTIVE PUBLISHING, INC. HAS FILED AN APPLICATION FOR CONFIDENTIAL
TREATMENT FOR CERTAIN PORTIONS OF THE FOLLOWING COMPUTER SOFTWARE DISTRIBUTION
AGREEMENT BETWEEN INGRAM MICRO, INC. AND THE REGISTRANT DATED JUNE 30, 1998(THE
"AGREEMENT"). THE PORTIONS OF THE AGREEMENT FOR WHICH CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED HAVE BEEN REMOVED AND ARE DENOTED BY AN ASTERISK IN BRACKETS [*]
AND A FOOTNOTE REFERENCING THE CONFIDENTIAL TREATMENT REQUEST. THE AGREEMENT,
INCLUDING THE CONFIDENTIAL PORTIONS, HAS BEEN SEPARATELY FILED IN ITS ENTIRETY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE APPLICATION FOR
CONFIDENTIAL TREATMENT.
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EXHIBIT 10.1
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement"), is entered into this 30 day of
June, 1998, by and between INGRAM MICRO INC. ("Ingram"), a Delaware corporation,
having its principal place of business at 1600 E. St. Andrew Place, Santa Ana,
California 92705, and PIRANHA INTERACTIVE PUBLISHING, INC. ("Vendor"), a Nevada
corporation, having its principal place of business at 1839 W. Drake, Suite B,
Tempe, AZ 85283. The parties desire to and hereby do enter into a
distributor/supplier relationship, the governing terms and mutual promises of
which are set out in this Agreement.
1. DISTRIBUTION RIGHTS
1.1 TERRITORY Vendor grants to Ingram, including its affiliates for resale,
and Ingram accepts, the non-exclusive right to distribute worldwide all computer
products produced and/or offered by Vendor ("Product") during the term of this
Agreement. Ingram shall have the right to purchase, sell and ship to any
reseller within the territory or to Ingram's affiliate, or at Vendor's option
Ingram's affiliate may purchase direct from Vendor.
1.2 PRODUCT Vendor agrees to make available and to sell to Ingram such Product
as Ingram shall order from Vendor at the prices and subject to the terms set
forth in this Agreement. Ingram shall not be required to purchase any minimum
amount or quantity of the Product.
2. TERM AND TERMINATION
2.1 TERM The initial term of this Agreement is one (1) year. Thereafter the
Agreement will automatically renew for successive one (1) year terms, unless it
is earlier terminated.
2.2 TERMINATION
(a) Either party may terminate this Agreement, with or without cause, by
giving thirty (30) days written notice to the other party.
(b) Either party may immediately terminate this Agreement with written
notice if the other party:
(i) materially breaches any term of this Agreement and such breach
continues for thirty (30) business days after written notification
thereof, or
(ii) ceases to conduct business in the normal course, becomes
insolvent, makes a general assignment for the benefit of creditors,
suffers or permits the appointment of a receiver for its business or
assets, or avails itself of or becomes subject to any proceeding under
any Bankruptcy Act or any other federal or state statute relating to
insolvency or the protection of rights of creditors; or
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(iii) attempts to assign or otherwise transfer its rights hereunder
unless both have agreed in writing to such assignment or transfer.
3. INGRAM OBLIGATIONS
3.1 PRODUCT AVAILABILITY Ingram will list Product in its catalog(s) as
appropriate and endeavor to make such Product available to customers.
3.2 ADVERTISING Ingram will advertise and/or promote Product in a commercially
reasonable manner and will transmit as reasonably necessary Product information
and promotional materials to its customers.
3.3 SUPPORT Ingram will make its facilities reasonably available for Vendor and
will assist in Product training and support. Ingram will provide reasonable,
general Product technical assistance to its customers, and will direct all other
technical issues directly to Vendor.
3.4 ADMINISTRATION
(a) Upon request, Ingram will furnish Vendor with a valid tax exemption
certificate.
(b) Ingram will provide Vendor standard sales-out and inventory reports
via its electronic Bulletin Board System.
(c) Ingram may handle its customers' Product returns by batching them for
return to Vendor at regular intervals.
4. VENDOR OBLIGATIONS
4.1 SHIPPING/EXPORT
(a) Vendor shall ship Product pursuant to Ingram purchase order(s)
("P.O."). Product shall be shipped regular/ground freight F.O.B. Ingram's
designated warehouse with risk of loss or damage to pass to Ingram upon delivery
to the warehouse specified on Ingram's P.O. Ingram will maintain insurance
coverage adequate to cover the normal cost of Product.
(b) Ingram requires concurrent with the execution of this Agreement Export
Administration Regulations product classification and supporting documentation:
Certificate of Origin (General Use and/or NAFTA), Export Commodity Control
Number's; (ECCN's), General License and/or Individual Validated License
information and Schedule "B"/Harmonized Numbers. This applies when distribution
rights granted under Section 1. 1 are outside the United States for the initial
Product/s and when additions or changes to these Products occurs.
4.2 INVOICING For each Product shipment to Ingram, Vendor shall issue to
Ingram an invoice showing Ingram's order number, the Product part number,
description, price and any discount. At least monthly, Vendor shall provide
Ingram with a current statement of account, listing all invoices outstanding and
any payments made and credits given since the date of the previous statement.
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4.3 PRODUCT AVAILABILITY Vendor agrees to maintain sufficient Product inventory
to fill Ingram's orders. If a shortage of any Product exists, Vendor agrees to
allocate its available inventory of such Product to Ingram in proportion to
Ingram's percentage of all of Vendor's customer orders for such Product during
the previous sixty (60) days.
4.4 PRODUCT MARKING Vendor will clearly mark each unit of Product with the
Product name and computer compatibility. Such packaging will also bear a
machine-readable bar code identifier scannable in standard Uniform Product Code
(UPC) format. The bar code must identify the Product as specified by the Uniform
Code Council (UCC). If the Vendor or Ingram customers' require serial number
tracking the serial number must be clearly marked and bar coded on the outside
of the individual selling unit. The bar code shall fully comply with all
conditions regarding standard product labeling set forth in Exhibit B in the
then-current Ingram GUIDE TO BAR CODE: THE PRODUCT LABEL. Vendor may be assessed
a reasonable per unit charge for all Product not in conformance herewith.
4.5 TECHNOTES Vendor will within thirty (30) days of execution of this
Agreement sign the CIS/ Manufacture Product Information Library - TechNotes and
Content Distribution Agreements as shown in Exhibit C and provide the required
product information in the designated template format.
4.6 SUPPORT At no charge to Ingram, Vendor shall support Product and any
reasonable Ingram efforts to sell Product. Vendor shall also provide to Ingram,
its employees, and its customers reasonable amounts of sales literature,
advertising materials, and training and support in Product sales.
4.7 NEW PRODUCT Vendor shall endeavor to notify Ingram at least thirty (30)
days before the date any new Product is introduced. Vendor shall make such
Product available for distribution by Ingram no later than the date it is first
offered for sale in the marketplace.
4.8 INSURANCE Vendor shall carry insurance coverage for product
liability/completed operations with minimum limits of two million dollars
($2,000,000). Within ten (10) days of full execution of this Agreement, Vendor
shall provide Ingram with a Certificate of Insurance. This Certificate of
Insurance must include: (i) a broad form endorsement naming Ingram as an
additional insured, and (ii) a mandatory thirty (30) day notice to Ingram of
insurance cancellation.
4.9 WARRANTIES/CERTIFICATION
(a) GENERAL WARRANTY Vendor represents and warrants that (i) it has good
transferable title to the Products, (ii) the Product will perform in conformity
with specifications and documentation supplied by Vendor, (iii) the Product or
its use does not infringe any patents, copyrights, trademarks, trade secrets, or
any other intellectual property rights, (iv) that there are no suits or
proceedings pending or threatened which allege any infringement of such
proprietary rights, and (v) the Product sales to Ingram do not in any way
constitute violations of any law, ordinance, rule or regulation in the
distribution territory.
(b) WARRANTY Vendor hereby represents and warrants that any Product
offered for distribution does not contain any obscene, defamatory or libelous
matter or violate any right of publicity or privacy.
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(c) END-USER WARRANTY Vendor shall provide a warranty statement with
Product for end user benefit. This warranty shall commence upon Product delivery
to end-user.
(d) MILLENNIUM COMPLIANCE WARRANTY Vendor warrants and represents that
the Product will properly (a) record, store, process, calculate or present
calendar dates falling on and after (and if applicable, spans of time including)
January 1, 2000 as a result of the occurrence, or use of data consisting of,
such dates and (b) calculate any information dependent on or relating to dates
on or after January 1, 2000 in the same manner, and with the same functionality,
data integrity and performance, as such Product records, stores, processes,
calculates and presents calendar dates on or before December 31, 1999, or
information dependent on or relating to such dates.
(e) CLASS B WARRANTY Vendor hereby represents and warrants that the
Product has been or will be at the time of shipment certified as a Class B
computing device as required by the rules of the U.S.A. Federal Communications
Commission ("FCC Rules").
(f) EU WARRANTY Vendor further warrants and represents for Products
distributed to the European Union ("EU") that the Products will be accepted
under all EU directives, regulations and the EU country's legislation.
(g) MADE IN AMERICA CERTIFICATION Vendor by the execution of this
Agreement certifies that it will not label any of its products as being "Made in
America," "Made in U.S.A.," or with similar wording, unless all components or
elements of such Product is in fact made in the United States of America. Vendor
further agrees to defend, indemnify and hold harmless from and against any and
all claims, demands, liabilities, penalties, damages, judgments or expenses
(including attorney's fees and court costs) arising out of or resulting in any
way from Product that does not conform to the Certification.
5. PRICING
5.1 INGRAM PRICING The suggested retail price and any Ingram discount for
Product is set out in Exhibit D. Vendor may modify Exhibit D with a minimum of
thirty (30) days advance written notice to Ingram. All Ingram orders for Product
will be billed at the price in effect when the order is placed. Ingram shall
have sole discretion as to selling price of Product to its customers.
5.2 VENDOR PRICING Vendor agrees that the prices and terms it offers to Ingram
are now and will continue to be at least as low as those it offers to any of its
U.S. based distributors/resellers. If Vendor offers price discounts, promotional
discounts or other special prices to its other U.S. based
distributors/resellers, Ingram shall also be entitled to participate in and
receive notice of the same no later than Vendor's other U.S. based
distributors/resellers.
5.3 INTERNATIONAL PRICING If Vendor offers a better price for Product sales
into Canada and Ingram has distribution rights in that territory then the same
price shall be offered to Ingram for Product sales into that territory.
5.4 PRICE ADJUSTMENTS If Vendor reduces any Product price, or offers increased
discounts to any U.S. based distributors/resellers, Vendor will promptly credit
Ingram for the difference between the original Product price and the reduced
Product price for Ingram's and its customers' Product inventory (provided that
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all such Product inventory must have been originally purchased by Ingram from
Vendor), including: (i) any Customer Product in-transit from/to Ingram, (ii) any
unshipped orders, and (iii) orders in-transit to Ingram on the price reduction
or increased discount offer date. Price adjustment credits will be issued upon
presentation of proof of inventory by Ingram and/or its customers. In the event
that Vendor shall raise the list price of a Product, all orders for such Product
placed prior to the effective date of the price increase shall be invoiced at
the lower price. Vendor shall provide Ingram with thirty (30) days advance
notice of any price increases.
5.5 PAYMENT TERMS Terms shall be two percent (2%) ten (10) days, net forty
five (45) days. Payment shall be deemed made on the payment postmark date.
5.6 RIGHT TO WITHHOLD Notwithstanding any other provision in this Agreement to
the contrary, Ingram shall not be deemed in default if it withholds any specific
amount to Vendor because of a legitimate dispute between the parties as to that
specific amount pending the timely resolution of the disputed amount.
6. MARKETING
6.1 TRADEMARKS Ingram may advertise and promote the Product and/or Vendor, and
may thereby use Vendor's trademarks, service marks and trade names. Neither
party shall acquire any rights in the trademarks, service marks or trade names
of the other.
6.2 PROGRAMS
(a) Vendor shall allow Ingram a quarterly rebate bases on Ingram Sales to
offset Ingram's handling and channel costs. The rebate will be paid via a check
within thirty (30) days after the quarter end and id no check is received within
that period Ingram shall deduct that amount from its next check. Ingram Sales
shall be defined as Ingram's gross sales for the quarter (Product purchased by
Ingram's customers from Ingram and shipped by Ingram to its customers during the
quarter). The following rebates shall be paid for the following Ingram Sales
volume:
$1 - $[*] [*] % of Ingram Sales
$[*] - $[*] [*] % of Ingram Sales
$[*] and above [*] % of Ingram Sales
By way of example, if Ingram Sales for a quarter were $560,000, the rebate for
that quarter would be $560,000 x [*]% = $[*].
(b) Ingram may offer marketing programs to Vendor including but not
limited to launch programs and reseller pass through opportunities. If Vendor
elects to participate, Vendor agrees to pay such funds as may be required for
this purpose.
(c) Vendor may be asked to prepay all marketing activities until a mutually
agreed upon sell through rate is achieved.
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[*] Confidential portion deleted and filed separately with the Securities and
Exchange Commission
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6.3 SUPPORT PRODUCT Vendor shall consign a reasonable amount of demonstration
Product to aid Ingram in its support and promotion of Product. All such
consigned Product will be returned to Vendor upon request.
7. RETURNS
7.1 STOCK BALANCING Notwithstanding anything herein to the contrary, Ingram
may return throughout the term any Products which are in their original
packaging to Vendor for full credit of the Products' purchase price. Vendor must
give written approval (RMA or credit memo) before Product may be shipped, charge
backs may be imposed or any other credits may be imposed. Vendor will issue an
RMA within seven (7) days of notice. Vendor will pay all regular/ground freight
charges from Ingram's warehouse to Piranha's warehouse for Product stock
balancing returns.
7.2 POST-TERM/TERMINATION For one hundred eighty (180) days after the
expiration or earlier termination of this Agreement, Ingram may return to Vendor
any Product for credit against outstanding invoices, or if there are no
outstanding invoices for a cash refund. Any credit or refund due Ingram for
returned Product shall be equal to the Product purchase price plus all freight
charges incurred by Ingram in returning the Product.
7.3 PRODUCT DISCONTINUATION Vendor shall give Ingram thirty (30) days' advance
written notice of Product discontinuation. For one hundred eighty (180) days
thereafter, Ingram may return all such Product to Vendor for full credit of
Product purchase price plus all freight charges incurred by Ingram in returning
the Product.
7.4 DEFECTIVE PRODUCT
(a) Ingram may return any Product to Vendor that Ingram or its customer
finds defective. Vendor shall immediately credit Ingram for the Product purchase
price, plus all freight charges incurred by Ingram in returning the defective
Product.
(b) If any Product is recalled by Vendor because of defects, revisions or
upgrades, Ingram will, at Vendor's request, provide reasonable assistance with
the recall. Vendor will pay Ingram's expenses in connection with such recall.
8. INDEMNIFICATION
8.1 PRODUCT INDEMNITY Vendor shall defend, indemnify, and hold harmless Ingram
from and against any claims, demands, liabilities, or expenses (including
attorney's fees and costs) for any injury or damage, including, but not limited
to, any personal or bodily injury or property damage, arising out of or
resulting in any way from any defect in Products. This duty to indemnify Ingram
shall be in addition to the warranty obligations of Vendor.
8.2 GENERAL INDEMNITY Each party shall indemnify, defend and hold the
other harmless from and against any and all claims, actions, damages,
demands, liabilities, costs and expenses, including reasonable
attorney's fees and expenses, resulting from any act or omission of the
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acting party or its employees under this Agreement, that causes or results in
property damage, personal injury or death.
8.3 INTELLECTUAL PROPERTY RIGHTS INDEMNITY Vendor shall defend, indemnify and
hold Ingram, its resellers and their customers, harmless from and against all
damages and costs incurred by any of them arising from the infringement of any
patent, copyright, trademark, trade secret or other proprietary right by reason
of the manufacture, sale, marketing, or use of Product.
8.4 PRODUCT INFRINGEMENT Upon threat of claim of infringement, Vendor may, at
its expense and option (i) procure the right to continue using any part of
Product, (ii) replace the infringing Product with a non-infringing Product of
similar performance, or (iii) modify Product to make it non-infringing. If
Vendor does not so act within ninety (90) days after such claim, Ingram may
return Product to Vendor for a full credit against future purchases or for a
cash refund, at Ingram's option.
8.5 MULTI-MEDIA INDEMNITY Vendor shall defend, indemnify and hold Ingram, its
resellers and their customers, harmless from and against all damages and costs
incurred by any of them to the extent it is based upon a claim that the Product
either (i) violates a third party's right of publicity and/or right of privacy,
or (ii) contains any obscene, defamatory or libelous matter.
8.6 EUROPEAN INDEMNITY For Products distributed to a country of the EU, the
Vendor accepts full responsibility for, and will indemnify Ingram for, all costs
and damages arising from any non-compliance with any manufacturer-directed EU
decree, regulation or directive.
8.7 MILLENNIUM COMPLIANCE INDEMNITY Vendor agrees to indemnify and hold Ingram
and its shareholders, officers, directors, employees, agents, successors, and
assigns harmless from and against any and all claims, suits, actions,
liabilities, losses, costs, reasonable attorney's fees, expenses, judgments or
damages, whether ordinary, special or consequential, resulting from any third
party claim made or suit brought against Ingram or such persons, to the extent
such results from Vendor's breach of the warranty specified in Section 4.9(d).
8.8 LIMITATION OF LIABILITY NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
LOST PROFITS OF BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER
BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE),
AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION IS IN NO WAY MEANT TO LIMIT VENDOR'S LIABILITY FOR PERSONAL
INJURY OR DEATH AS A RESULT OF A DEFECT IN ANY PRODUCT IN THOSE JURISDICTIONS
WHERE THE LAW DOES NOT ALLOW THIS LIMITATION.
9. COMPLIANCE WITH FEDERAL LAWS AND REGULATIONS
9.1 EXECUTIVE ORDER 11246 Vendor agrees to include the Equal Employment
Opportunity Clause by reference in every contract, agreement and purchase order
entered into with subcontractors or suppliers as required by 41 CFR 60-1.4.
9.2 EMPLOYER INFORMATION REPORT EEO-1/ WRITTEN AFFIRMATIVE ACTION PROGRAM
Vendor agrees that if the value of any contract or purchase order is
fifty thousand dollars ($50,000) or more and the Vendor has fifty (50) or
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more employees, Vendor will (i) file an EEO-1 report (Standard Form 100) and
comply with and file such other compliance reports as may be required under
Executive Order 11246, as amended, and Rules and Regulations adopted thereunder
and (ii) will develop a written affirmative action compliance program for each
of its establishments as required by Title 41 CFR 60-1.40.
9.3 VETERANS EMPLOYMENT CLAUSE Vendor agrees to abide by and comply with the
provisions of the Affirmative Action Clause, 41 CFR 60-250.4.
9.4 EMPLOYMENT OF HANDICAPPED PERSONS VENDOR AGREES THAT IT WILL ABIDE BY AND
COMPLY WITH THE PROVISIONS OF THE AFFIRMATIVE ACTION CLAUSE, 41 CFR 60-741.4.
9.5 SMALL BUSINESS CONCERNS AND SMALL BUSINESS CONCERNS OWNED AND CONTROLLED BY
SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS Where a government contract
is expected to exceed five hundred thousand dollars ($500,000), Vendor agrees to
comply with all requirements of P.L. 95-507 and regulations promulgated
thereunder. Vendor shall comply with instructions contained in Exhibit E.
9.6 WOMEN-OWNED BUSINESS CONCERNS Vendor shall comply with instructions
contained in Exhibit E. Where a government contract is expected to exceed five
hundred thousand dollars ($500,000), Vendor agrees to comply with all
requirements of Executive Order 12138 and all regulations promulgated
thereunder.
10. GOVERNMENT PROGRAM
10.1 PARTNERSHIP AMERICA Vendor may, at its sole option, participate in
Ingram's government reseller program in which case the provisions of Exhibit F,
Partnership America, shall apply. A draft copy is provided solely for your
information and review.
11. GENERAL PROVISIONS
11.1 NOTICES Any notice which either party may desire to give the other party
must be in writing and may be given by (i) personal delivery to an officer of
the party, (ii) by mailing the same by registered or certified mail, return
receipt requested, to the party to whom the party is directed at the address of
such party as set forth at the beginning of this Agreement, or such other
address as the parties may hereinafter designate, and (iii) by facsimile or
telex communication subsequently to be confirmed in writing pursuant to item
(ii) herein.
11.2 GOVERNING LAW This Agreement shall be construed and enforced in accordance
with the laws of the State of California, except that body of law concerning
conflicts of law. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
11.3 COOPERATION Each party agrees to execute and deliver such further
documents and to cooperate as may be necessary to implement and give effect to
the provisions contained herein.
11.4 FORCE MAJEURE NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DELAY OR
FAILURE TO PERFORM WHICH RESULTS FROM CAUSES OUTSIDE ITS REASONABLE CONTROL.
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11.5 ATTORNEYS FEES In the event there is any dispute concerning the terms of
this Agreement or the performance of any party hereto pursuant to the terms of
this Agreement, and any party hereto retains counsel for the purpose of
enforcing any of the provisions of this Agreement or asserting the terms of this
Agreement in defense of any suit filed against said party, each party shall be
solely responsible for its own costs and attorney's fees incurred in connection
with the dispute irrespective of whether or not a lawsuit is actually commenced
or prosecuted to conclusion.
11.6 EXPORT REGULATIONS Ingram agrees by the purchase of Products to conform
to, and abide by, the export laws and regulations of the United States,
including but not limited to, the Export Administration Act of 1979 as amended
and its implementing regulations. Ingram shall include a statement in it's
standard sales terms and conditions that any shipment of Product outside the
United States will require a valid export license. Ingram further agrees to
distribute Product in accordance with the territory as defined in Section 1. 1.
Whenever a EU country is specified as Territory under Section 1. 1, Territory
shall include all EU countries.
12. AGREEMENT
12.1 COUNTERPARTS This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12.2 SECTION HEADINGS Section headings in this Agreement are for convenience
only, and shall not be used in construing the Agreement.
12.3 INCORPORATION OF ALL EXHIBITS Each and every exhibit referred to
hereinabove and attached hereto is hereby incorporated herein by reference as if
set forth herein in full.
12.4 SEVERABILITY A judicial determination that any provision of this Agreement
is invalid in whole or in part shall not affect the enforceability of those
provisions found to be valid.
12.5 NO IMPLIED WAIVERS If either party fails to require performance of any
duty hereunder by the other party, such failure shall not affect its right to
require performance of that or any other duty thereafter. The waiver by either
party of a breach of any provision of this Agreement shall not be a waiver of
the provision itself or a waiver of any breach thereafter, or a waiver of any
other provision herein.
12.6 BINDING EFFECT/ASSIGNMENT This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their respective
representatives, successors and permitted assigns. This Agreement shall not be
assignable by Vendor, without the express written consent of Ingram, which
consent shall not be unreasonably withheld, including to a Person in which it
has merged or which has otherwise succeeded to all or substantially all of such
party's business and assets to which this Agreement pertains and which has
assumed in writing or by operation of law its obligations under this Agreement.
Any attempted assignment in violation of this provision will be void.
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12.7 SURVIVAL Sections 5.5 (Payment Terms), 5.6 (Right to Withhold), 7.2
(Post-Term Termination) and 8. (Indemnification) shall survive the expiration or
earlier termination of this Agreement.
12.8 ENTIRETY This Agreement constitutes the entire agreement between the
parties regarding its subject matter. This Agreement supersedes any and all
previous proposals, representations or statements, oral or written. Any previous
agreements between the parties pertaining to the subject matter of this
Agreement are expressly terminated. The terms and conditions of each party's
purchase orders, invoices, acknowledgments/confirmations or similar documents
shall not apply to any order under this Agreement, and any such terms and
conditions on any such document are objected to without need of further notice
or objection. Any modifications to this Agreement must be in writing and signed
by authorized representatives of both parties.
12.9 AUTHORIZED REPRESENTATIVES Either party's authorized representative for
execution of this Agreement or any amendment hereto shall be president, a
partner, or a duly authorized vice- president of their respective party. The
parties executing this Agreement warrant that they have the requisite authority
to do so.
IN WITNESS WHEREOF, the parties hereunto have executed this Agreement.
"Ingram" "Vendor"
Ingram Micro Inc. Piranha Interactive Publishing, Inc.
1600 E. St. Andrew Place 1839 W. Drake, Suite B
Santa Ana, California 92705 Tempe, AZ 85283
By: /s/ V.L. Cotten By: /s/ Douglas M. Brannan
---------------------------------- ----------------------------------
Name: Victoria L. Cotten Name: Douglas M. Brannan
Title: Sr. V.P., Purchasing Title: VP, Sales & Mktg/comm.
Date: 6-30-98 Date: 6-30-98
*AGREEMENT MUST BE SIGNED BY PRESIDENT OR BY A DULY AUTHORIZED VICE PRESIDENT OR
PARTNER.
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EXHIBITS:
A - Vendor Routing Guide (if applicable)
B - Guide to Bar Code: The Product Label
C - TechNotes
D - Product Price List
E - Small And Disadvantaged Business Certification
F - Partnership America
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