This Non-Exclusive Dealer Agreement ("Agreement") effective as of April , 1999,
is entered into by and between FUJITSU BUSINESS COMMUNICATION SYSTEMS, INC., a
California corporation, 3190 Miraloma Avenue, Anaheim, California 92806
("Fujitsu") and Method Products Corporation ("Dealer"), a Corporation having
offices at l3Ol W. Copons Rd. F-l-, Pompano Bch, Florida, for purchase,
distribution, and resale of certain products and equipment manufactured,
marketed and/or distributed by Fujitsu.
WITNESETH:
WHEREAS, Fujitsu has developed a Dealer program to distribute Fujitsu Products
and Fujitsu intends to appoint Dealers in the United States; and
WHEREAS, Fujitsu is interested in selecting Dealers for Fujitsu Products who are
able to provide professional marketing, sales efforts and competent service, and
as a result a high level of customer satisfaction; and
WHEREAS, the Dealer has applied to become a Dealer for Fujitsu Products and
Fujitsu in reliance on representations made by said Dealer, has approved such
application and wishes to enter into this Agreement with said Dealer.
NOW, THEREFORE, in consideration of the recitals above and the mutual
covenants herein contained, the parties hereto
agree as follows:
1. APPOINTMENTS NON-EXCLUSIVE DEALER AND ASSIGNED SALES AREA-
1.1 Subject to the terms and conditions herein Fujitsu hereby appoints Dealer
and Dealer accepts appointment as a non-exclusive dealer of the Fujitsu Products
listed on Attachment A hereto and made a part of this Agreement (hereinafter
referred to as "Product(s)"). The Agreement shall also apply to Application
Processor products and Other Equipment Manufacturer (OEM) manufactured by third
parties that Dealer has agreed to market by execution of an amendment to this
Agreement for each such Application Processor or OEM and product.
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1.2 The purpose of promoting, marketing, reselling, and servicing (if
applicable) the Products only in its primary target markets as indicated below
(hereinafter referred to as "Assigned Sales Area"): Territory: Florida.
In no event shall Dealer export to any other countries any of the products sold
to it by Fujitsu.
The dealer will not actively seek to compete with a GTE, sponsored Fujitsu bid
inside GTE franchised dial tone areas.
2. TERM
2.1 The initial term of this Agreement shall be for a period of twelve (12)
months from the date the Agreement is signed. This Agreement shall be
automatically renewed for an additional and successive twelve (12) month
period(s), subject to the termination provisions herein, unless either party
shall give written notice of termination at least sixty (60) days prior to the
end of the then current Agreement period, in which event termination shall be
effective at the end of the then current Agreement period.
3. PRODUCT DEVELOPMENT
3.1 Fujitsu reserves the right at any time and from time to time to change the
specifications or designs of its Products. Fujitsu shall be under no obligation
to make any such change to any of the Products previously shipped to Dealer.
3.2 It is further agreed that Fujitsu has the right at its sole option, to
discontinue the manufacture and/or sale of any of its Products subject to this
Agreement upon at least sixty (60) days prior notice to the Dealer.
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4. OBLIGATIONS AND DUTIES OF DEALER
4.1 In addition to and subject to the other provisions of this Agreement. Dealer
hereby further specifically agrees as follows:
a) Dealer shall exercise its best efforts to create and maintain goodwill for
Fujitsu and Dealer, in a manner consistent with the terms of this Agreement and
applicable law.
b) Dealer shall meet its training requirements as set forth in Section 13
herein.
c) Dealer shall actively solicit and promote the sale of the Products in the
Assigned Sales Area and provide adequate service support to its customers.
d) Dealer shall ensure that each end user which acquires any of the Products is
provided proper installation support and operational training Dealer must
register with Fujitsu the site location and end user name for each Product sold,
for purposes of warranty and software licensing.
e) Dealer shall maintain complete, current and accurate records of purchases
from Fujitsu, inventory and sales of Products, and such other business records
as may be required by Fujitsu.
f) Dealer shall work with a Fujitsu representative to develop a twelve (12)
month sales forecast for the Products and an ongoing ninety (90) day sales
forecast each month. Each such forecast shall indicate units of the Products as
well as total dollar amounts.
g) Dealer shall maintain adequate financial stability to carry out the
terms of this Agreement.
h) Dealer shall be fully responsible for all the acts and omissions of its
branches, agents and employees and shall indemnify, protect defend and hold
Fujitsu harmless against all claims, damages, losses, costs or expenses made
against incurred or sustained by Fujitsu by reason of any act or omission of
Dealer, its branches, agents or employees, or any breach or default of this
Agreement by Dealer.
i) Dealer shall actively participate in the resolution of customer complaints,
comply with all Fujitsu sales, advertising, operations, credit marketing,
service and other policies, comply with applicable federal, state, and local
laws, regulations, and licensing requirements, and properly store and handle the
Products.
j) Dealer shall stock adequate spare parts for the Products to meet customer
demands. Dealer will comply with all Fujitsu recommendations for stocking
Product spare parts. Dealer may utilize its demo system to meet its initial
spare parts inventory requirement.
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k) Dealer shall respond on site to customer service requests for major
malfunctions of an attendant console, loss of special service network
capabilities, or loss of 10% or more of incoming, outgoing or station-to-station
service) within four (4) hours and to all other customer service requests within
twenty-four (24) hours of receipt or within such shorter periods as the customer
and Dealer shall agree. Dealer will make service trouble records available to
Fujitsu upon request.
l) Dealer shall maintain an adequate documentation library for all Fujitsu
products sold (including all software releases and Fujitsu Application
Processors).
m) Dealer shall not solicit to employ, hire or retain nor shall it actually
employ, hire or retain any trained technician or any other employee of FBCS or
FBCS' authorized Dealers, without prior written approval.
n) Dealer shall not offer to service, sell products to, or in any way solicit or
take business away from or provide products or service to customers of FBCS and
FBCS' other authorized Dealer's installed based. Notwithstanding the foregoing,
Dealer may sell products or services to other FBCS Dealer's customers only if
such customer has approached Dealer for such products or services.
m) Dealer must include a Purchase Order for demonstration (demo) equipment with
the dealer application and dealer agreement. Fujitsu and the Dealer will jointly
determine the minimum configuration requirements for demonstration units. The
F9600 demo systems will be priced from the autoquote using the "F9600 System
Discount Schedule"(see attachment "A-1"). additional 10% discount will be
applied against the autoquote discount schedule. Any F9600 Master Pack ordered
as a demo system is not subject to any discount. Fujitsu F9600 Application
Processors are subject to a 25% discount. Demo system(s) purchased by Dealer may
not be resold. Dealer Demo system shall be Net 90 day terms.
n) Comply with the minimum annual volume purchase requirement as described
in Section 7 and Attachment A of this Agreement
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4.2 FINANCIAL STATEMENTS
Dealer shall furnish to Fujitsu continuously, quarterly unaudited financial
statements and audited annual financial statements certified by Dealer's
certified public accountant or its Chief Financial Officer. If audited shipments
are not available dealer will provide unaudited statements. Upon or prior to
signing this Agreement Dealer shall furnish its most recent financial
statements, three trade references and one bank reference.
5. OBLIGATIONS AND DUTIES OF FUJITSU
5.1 In addition to and subject to the other provisions of this Agreement
Fujitsu shall, while this Agreement is in effect:
a) Supply Dealer with reasonable start-up quantities of Fujitsu Product
sales literature, and promotional materials.
b) Make available reasonable Sales Engineering support On-site Sales
Engineering support will require Dealer to provide reasonable advance notice.
c) Make available technical assistance pursuant to Attachment Supply Dealer
with I (one) complimentary copy, on CD ROM of the current release for:
d) F9600 General Description and Feature Descriptions Manual for Authorized
F9600 Dealers. Additional documentation can be purchased through Customer
Service.
e) Fujitsu shall not solicit to employ, hire or retain nor shall it actually
employ, hire or retain any employee of Dealer, without prior written approval of
Dealer.
f) Fujitsu shall not offer to service, sell products to, or in any way solicit
or take business away from or provide products or services to customers of
Dealer and Dealer's other authorized installed base. Notwithstanding the
foregoing Fujitsu may sell products or services to other Dealer's customers only
if such customer has approached Fujitsu for such products or services.
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6. RELATIONSHIP OF PARTIES
6.1 The parties agree that Dealer is an independent contractor and is not a
legal representative, franchisee, or agent of Fujitsu for any purpose
whatsoever. Dealer my not and acknowledges it is not authorized by Fujitsu to,
transact business, incur obligations, craft responsibilities, stop goods or
otherwise act in any manner in the name of or on behalf of Fujitsu, or to make
any promise, agreement, warranty or representation with respect to the Products
or any other matter in the name of or on behalf of Fujitsu
6.2 During the term of this Agreement and thereafter, Fujitsu reserves the right
without obligation or liability to the Dealer, to market Products which are the
same as or similar to the Products which are the subject of this Agreement in
Dealers Assigned Sales Area or other geographic areas, either directly or
through other dealer/dealers or through other types of distribution channels.
Fujitsu reserves the right for any reason whatsoever to increase or decrease the
number of Fujitsu Dealers or Dealers.
6.3 Dealer shall market the Products directly to end users only and not to other
dealers. The Dealer shall have no right to, and agrees it will not appoint any
other dealer or Dealer as its agent or otherwise.
7. ANNUAL VOLUME COMMITMENT
7.1 Dealer agrees to order and take delivery of, during the initial twelve (12)
month term of this Agreement and each subsequent year of this Agreement,
Products having an aggregate net discounted invoice value equal to the Annual
Volume commitment amount agreed to by Dealer and Fujitsu in Attachment A hereto
(referred to herein as the, Annual Volume Commitment,), including any Annual
Volume Commitment adjusted pursuant to Section '7.2. The Price to be invoiced
Dealer for each Product upon Shipment during the effectiveness of this Agreement
shall be the list price current on the date the Orders arc received by Fujitsu
less the discount appearing on Attachment A hereto based on Dealer's Annual
Volume Commitment For Dealers who have signed an Amendment to distribute one or
more Application Processor products or OEM product distributed by Fujitsu all
Orders place on Application Processors manufactured by a third party or OEM
product distributed by Fujitsu will be credited towards Dealer's current Annual
Volume Commitment.
7.2 Three (3) months from first anniversary of the effective date of this
Agreement and in each year thereafter, three (3) month from the anniversary of
the effective date of this Agreement Fujitsu will review the performance of
Dealer up to that point including bookings, aggregate shipments and any other
relevant issues pertaining to the sale of Fujitsu Products by and to Dealer.
Based upon this review, an evaluation shall be made by Fujitsu as to whether
Dealer is reasonably capable of meeting the Annual Volume Commitment previously
agreed to. If Fujitsu, in its sole discretion believes that Dealer will not
before the annual anniversary of the Agreement place and order for, and take
delivery of sufficient equipment for Dealer to meet the Annual Volume Commitment
Fujitsu shall so notify the Dealer and the Dealer shall place an order, with
Fujitsu no later than 45 days before the Anniversary of the Agreement with a
value sufficient to bring the Dealer total purchases for the year to at least
the Annual Volume Commitment. The delivery date for such order shall be before
the annual anniversary date of the Agreement. If Dealer fails to place such an
order, Fujitsu shall invoice Dealer for the difference between Dealers purchases
to date and the Annual Volume Commitment. Fujitsu my also, at its sole
discretion terminate this Agreement pursuant to Section 22.2(f).
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8. ORDERS
8.1 Products to be sold to Dealer during the term of this Agreement will be by
way of purchase orders ("Orders") placed by the Dealer with Fujitsu. All
preprinted terms and conditions on such Orders shall be governed and superseded
by the terms and conditions of this Agreement and this Agreement shall in all
events be the controlling document.
8.2 All Orders shall include a fully completed Fujitsu order package which shall
contain the information set forth in Attachment B hereto. Fujitsu reserves the
right to accept or reject such Orders or any part thereof for any reason. Orders
shall not be effective or binding upon Fujitsu unless and until accepted by
Fujitsu. All Orders and shipments by Fujitsu shall be governed by the terms and
conditions of this Agreement. Dealer's Orders once accepted by Fujitsu are
binding contractual commitments and shall be subject to Fujitsu's fees and
charges upon any cancellation or revocation, such fees and charges to be 25% of
the amount of the Orders unless Fujitsu otherwise notifies Dealer in writing.
8.4 All material returned to Fujitsu requires the use of a Return Material
Authorization set forth in Attachment D hereto. A 25% restocking fee of the
product price will be charged to the dealer if returned to Fujitsu after 30 days
or found to be dealer error. Material and/or equipment being returned to Fujitsu
for credit my only be returned if (a) the material and/or equipment is new,
unopened and unused condition; and (b) the material and/or equipment was not
shipped to Dealer more than six months prior to the date for the request of a
Return Material Authorization.
8.5 Shipment of Orders, which Fujitsu accepts, will be handled on a schedule
that is reasonably established by Fujitsu consistent with the current Product
availability schedule at the time an Order is submitted.
8.6 Within twenty (20) days after receipt of Products or related goods by
Dealer, Dealer shall notify Fujitsu in writing of any defect in or damage to
such Products. Failure to do so shall be deemed conclusive proof that the
Products were received without damage or observable defect and shall constitute
a waiver of all claims against Fujitsu or the shipper arising out of such defect
or damage, except that Fujitsu's product warranty shall remain in effect for
non-apparent defects.
8.7 Fujitsu's list prices and the discounts in Attachment A shall also not
necessarily apply where the Orders specify non-manufactured or nonstandard or
specially configured Fujitsu Products or services, where the terms and
conditions are other than those of this Agreement or where the delivery schedule
provides for shipment more than three months beyond the termination date of this
Agreement Prices and discounts in said instances shall be a matter of separate
negotiations between the parties.
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9. PRODUCT ALLOCATION
Fujitsu reserves the exclusive right to allocate shipments of available Product
inventories.
10. PAYMENT AND GRANT OF SECURITY INTEREST
10.1 Dealer shall make payment in full directly to Fujitsu for each item of
Product Invoices are due and payable to Fujitsu in U.S. dollars according to the
following schedule:
a) Product Systems (including PBX, phones and Application Processors as part of
initial systems sale):
i) For Product System orders of $100,000 or higher one of the following 'LS
required:
1. 25%,with placement of the order and the balance net 60 days from 100%
compete shipment of order;
2. Assignment of lease payment proceeds at the time of order,
3. Establishment of a depository account for the purchase.
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ii) For Product System order less than $100,000 one of the following is
required:
1. Net 60 days from date of 100% complete shipment of order,
2. Assignment of lease payment proceeds at the time of order,
3. Establishment of a depository account for the purchase.
b) Spares and Replacement Components
1. Net 60 days from date of shipment.
c) Training.
Net 60 days from date of invoice for billable training expenses (e.g.
Documentation Computer Based Training (CBT), video training, or at Dealer site).
d) All other Invoices. (excluding terms from amendment agreements) shall be Net
60 days from date of invoice. Except for Dealer Demo systems which shall be Net
90 day terms.
Service and interest charges, of one percent (11/o) per month, subject to the
limits permitted under applicable law, may be made on past due invoices for
Products and any other charges due hereunder. In the event a Dealer disputes the
amount of an invoice, written explanation must be provided within ten (10) days
as to the reason for dispute. Dealer must make payment on the undisputed portion
or amount of the invoice within the applicable time period defined in this
Section 10. 1.
10.2 Dealer shall establish and maintain credit satisfactory to Fujitsu. Fujitsu
shall, in its sole discretion, establish a credit limit for Dealer based upon
Fujitsu's analysis of Dealers credit worthiness. If, in Fujitsu's sole judgment
the financial condition of Dealer does not justify continuation of the existing
tem-is of payment or established credit limit Dealer fails to timely pay
invoices for Product(s) shipped, or Dealer otherwise materially fails to perform
hereunder, Fujitsu may require full or partial payment in advance of shipment
assignment of proceeds, some other form of security, may otherwise change
Dealers credit terms, or may withhold or suspend, in whole or in part, any
shipment or any other performance or obligation hereunder.
10.3 Dealers will be required to set up an Depository Account as part of the
Non-Exclusive Dealer Agreement A Depository Agreement must be executed with the
Dealer and the dealer's bank within thirty (30) days of signing the
Non-Exclusive Dealer Agreement. If Dealer can not locate a bank that offers
depository accounts Fujitsu with recommend a source. The depository account will
be used as a supplement to the Dealer's credit line. When Dealer reaches its
credit line the next system purchase must be set up through the depository
account.
10.4 In the event of any interim or permanent lease or other financing
arrangements by any customer of Dealer, Dealer hereby agrees to take all action
necessary for the release of funds from such financing to pay Fujitsu directly
for such Products, without removing Dealer's obligation for payment.
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II. PRICES AND TAXES
11.1 The purchase price of Products or parts or components shipped hereunder
shall be invoiced to and paid by Dealer at Fujitsu's then current list price on
the date the order is received, less the applicable discount if any, on
Attachment A.
11.2 Fujitsu may change its list prices at any time. Such changed prices will
apply to all Orders received by Fujitsu after the effective date of such price
change. In the event of a list price increase, Fujitsu will provide written
notice to the Dealer at least thirty (30) days prior to the effective date of
the price increase.
11.3 Dealer shall be responsible for the payment of all taxes, levies, or
assessments imposed on
the transactions hereunder or the Products, including without limitation all
sales, use and excise taxes. Dealer must provide a copy of the tax exempt
certificate to Dealer Program Administrator at the time the Dealer agreement is
signed, to allow Fujitsu to refrain from collection of taxes it may otherwise be
obligated to collect In the event no exemption is available, Dealer will prepay
all applicable taxes to Fujitsu. Dealer's obligation in this regard shall
survive the termination of this Agreement
12. SHIPMENT AND DELIVERY AND TITLE
12.1 All shipments hereunder shall be freight prepaid, F.O.B. Fujitsu's Anaheim
CA. warehouse or shipping dock All Products shall be deemed delivered when
placed in the possession of a carrier ready for shipment to Dealer.
12.2 Unless otherwise specified by the Dealer on the Orders, Fujitsu shall ship
Products according to Fujitsu's customary method, freight and other necessary
expenses prepaid and invoiced to Dealer. Dealer will pay shipping and handling
charges, cost of insurance, and any applicable sales, customs, duties and use
taxes, as well as any other costs associated with the shipment of the Products.
12.3 Dealer shall assume all risk of loss or damage upon delivery to the carrier
at the F.O.B. point In the event of loss or damage subsequent to such delivery,
Dealer shall bear complete responsibility for promptly advising any carrier and
insurer of the loss, for filing a claim and for recovery of any sums owed by
such parties to Dealer. Fujitsu agrees to cooperate with Dealer in establishing
any such claim.
12.4 Fujitsu shall not be liable for any loss, damages or penalties for
delay or failure in delivery for any cause.
12.5 Title to any Product hardware or component hardware shall pass to Dealer
when Fujitsu has been paid in full for such Product hardware or component
hardware.
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13. TRAINING
13.1 Dealer will order the appropriate Computer Based Training (CBT) module and
set a tentative date to attend the first available F9600 I&M class offered by
Fujitsu in conjunction with the execution of the Dealer Agreement. Dealer must
maintain a minimum of two (2) certified technicians on each product. If Dealer's
technicians are not certified prior to the first installation, support may be
provided by the local branch at a negotiable price.
Fujitsu will Provide technical training at Fujitsu's National Training Center in
Phoenix, AZ., Dealer, upon signing Agreement win be allowed four (4) weeks of
tuition for technical training at, no charge (excluding fees for documentation
and CBT). For new dealers, the four (4) weeks must be taken during the first
year of the signed Agreement. For existing dealers training will be charged
according to Attachment H.
Dealer shall be responsible for the following:
i. All travel, lodging, meals, and other expenses for their personnel
attending training class at the Fujitsu facility.
ii. Dealer must order the appropriate Computer Based Training (CBT) module and
set a tentative date to attend the first available class offered by Fujitsu in
conjunction with the execution of the Dealer Agreement. To purchase all Computer
Base Training (CB'f), videos, and documentation required for courses, at
published rates.
iii. All off-site training classes, not held at the Fujitsu Facility, will
require the Dealer to pay all expenses for Fujitsu personnel including
instructor's cost, transportation, meals and lodging.
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13.2 The following training is mandatory for Dealer:
a) Installation and maintenance.
i. Minimum of two (2) certified technicians on each Product on a perpetual
basis until the termination of this Agreement
ii. At least one (1) technician must be certified prior to first system
installation (each Product line) or dealer must arrange with Fujitsu (at
negotiated rate) to perform installation and maintenance until such time as a
technician is certified
b) Product Sales
i. Minimum of one (1) trained sales person for each major market office. Sales
Training classes will be provided at Fujitsu's National Training Center in
Phoenix, AZ. Lodging, transportation, meals and documentation expenses are the
responsibility of Dealer.
ii. Dealer is encouraged to attend Fujitsu's product sales class at Fujitsu's
training facility in Phoenix, AZ. There will be a document fee for classes held
in Phoenix. Training may also be provided at a Fujitsu branch office or dealer's
office by a Fujitsu representative. Field training requires a $1,000 travel fee
for the Fujitsu trainer and payment of this fee can be shared by the number of
participating dealers. There will be an additional $200 master documentation fee
per participating dealer for field held classes.
13.3. Fujitsu will monitor Dealer so that required tuition waived training is
achieved. Fujitsu reserves the right to cancel Dealer participation if tuition
waived training is misused. In the event that Dealer needs to cancel or change
reservations the Dealer must comply with the cancellation policy in.
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13.4. Cancellation Policy
i. Notify the Fujitsu Training Registrar as soon as possible.
ii. If Dealer cancels enrollment of off-site class more than ten (10)
business days before the start of class, Fujitsu will waive all charges.
iii. If Dealer cancels enrollment of off-site class, between six (6) and ten
(10) business days prior to the start of class, Dealer will be billed for 50% of
the standard published rate.
iv. If Dealer cancels enrollment of off-site class, five (5) business days or
less prior to the start of class, Dealer will be billed for 100% of the standard
published rate.
14. EXCUSABLE DELAY
14.1 Neither Fujitsu nor Dealer shall be liable for any delay in or failure of
performance hereunder due to causes beyond its control rendering performance
commercially unreasonable including, but not limited to, war, revolution civil
strike, labor trouble or disturbance, climatic disturbance, natural disaster,
fire, acts of God, acts of public enemies, blockade, embargo, strikes, shortage
of materials, failure of performance by suppliers, acts of government power
failure, or import quotas. The party so affected by any delay shall use its best
efforts to avoid or remove such cause for the delay and shall continue to
perform hereunder whenever such cause or causes are removed or avoided. The
party affected by any such delay will provide notice thereof to the other party
as soon as possible.
14.2 Should such inability to perform continue for a period in excess of ninety
(90) days, Fujitsu shall not be obligated to sell nor shall Dealer be obligated
to purchase that portion of the goods which Fujitsu is unable to deliver or
Dealer is unable to receive or use.
15. WARRANTY AND WARRANTY ADMINISTRATION
15.1 The WARRANTY set forth in this Section 15 and the obligations and
liabilities hereunder are exclusive and in lieu of and each party hereby waives
all other guarantees and warranties, whether statutory, expressor implied,
including, without limitation, any warranty of merchantability or fitness for a
particular purpose. Dealers exclusive remedy for defective products shall be
only as stated in this Section 15 in the event the remedies provided fail of
their essential purpose, Fujitsu shall have the right but not the obligation to
refund the money paid Fujitsu for the particular item of the products less a
reasonable amount for its use.
15.2 The warranty herein is made only to Dealer and is not transferable. All
warranty claims must be made by Dealer. Fujitsu will not accept warranty claims
from Dealer's customers or other end users.
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15.3 Subject to the provisions of this Section 15, Fujitsu warrants, for a
period of three (3) years from the date of shipment to Dealer for a period of
three (3) years from the date of shipment to Dealer for F9600 Products, that the
Products (hardware and software) manufactured by Fujitsu or a Fujitsu affiliate
will be free from defects in material and workmanship. If any defects covered by
this warranty appear and Fujitsu is notified within the said applicable period,
Fujitsu shall have the option of repairing or replacing the defective
component(s) of the Products at its expense. Reconditioned replacement
components, parts or materials may be used in any such repair or replacement.
Repaired or replacement parts or components are warranted for the remainder of
the original warranty period or for ninety (90) days after replacement whichever
is longer. Ile foregoing warranty shall be void for any item of the Products
which has been subject to: (1) alteration or repair by persons not authorized by
Fujitsu; (2) misuse, negligence, accident fire or other casualty, (3) operation
beyond its design range, improper testing, or mishandling in any way, or (4 )
improper installation or maintenance or service by persons not authorized by
Fujitsu. Fujitsu reserves the right to make any changes in the design or
construction of the Products supplied hereunder at any time without incurring
any obligation to make any change whatsoever to the Products previously shipped.
The above warranty does not extend to products normally consumed in operation or
which have a normal life shorter than the applicable warranty period.
15.4 Products to be repaired or replaced under this warranty must be returned to
Fujitsu's repair facility, pursuant to Fujitsu Return and Repair Policy in
Attachment D hereto. Dealer shall bear the cost of shipment to, and Fujitsu
shall bear the normal cost of suffice shipment from the repair facility of
Fujitsu in the United States. Fujitsu will confirm that the defect to the
Product is covered by this warranty upon examination at its facility. Fujitsu
has no obligation under warranty or otherwise to make repairs or replacements on
customer or Dealer site or to send Fujitsu personnel on site for any Product
situation or deficiency.
15.5 Dealer will provide to all of its customers and to all other end users of
the Products sold by Dealer as part of the sale a copy of Fujitsu's Limited
Warranty Policy Statement as set forth on Attachment G- I hereto or the
applicable Application Processor warranty if such Application Processor is
manufactured by a third party.
16. SOFTWARE, LICENSE
16.1 The terms of this Section 16 shall apply to any software and enhancements,
updates or new releases thereof, and related documents provided by Fujitsu to
Dealer and incorporated within, or used in conjunction with, the Fujitsu
Products sold by Fujitsu to Dealer under this Agreement. Software licenses for
any Application Processors manufactured by a third party and sold to Dealer
under this agreement shall be limited to and governed by the terms and
conditions of the distribution agreement between Fujitsu and the Application
Processor supplier.
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16.2 Fujitsu hereby grants and Dealer hereby accepts a non-exclusive license to
use and sublicense the software to customers of Dealer ("sublicenses") only in
conjunction with the use and sale of the Products as provided for herein,
provided that such software is used only in conjunction with the Products
obtained by the Dealer from Fujitsu and only in accordance with the following
terms and conditions:
a) Right to use : Dealer or its immediate customer will use the Software only
with the specific PBX Product to which it relates during the useful life of the
Product Title and ownership of the Software shall at all times remain with
Fujitsu or its affiliated company. This license is not transferable by Dealer
except as permitted herein to its customers of the Products.
b) Confidentiality: Dealer and its customers agree that the Software shall be
treated as the exclusive property of Fujitsu or its affiliated company and as
proprietary to and a trade secret of Fujitsu or its affiliated company. Dealer
and its customers win not decipher or otherwise attempt to ascertain the
contents of the Software. Dealer and its customers will not make any copies of
the Software without the prior written consent of Fujitsu except as necessary to
administer and maintain the Product and any such copies are deemed to be the
property of Fujitsu Dealer and its customers agree to pay Fujitsu a penalty of
three times the right to use published list price, or equivalent if no published
price, for each unauthorized copy of the Software made by or for Dealer or its
customers and such copies are also to be deemed Fujitsu property.
c) Nondisclosure: Dealer and its customers will hold the Software in confidence
for the benefit of Fujitsu or its affiliated company and will prevent the
disclosure or communication to third parties of the Software and A information,
data and know-how pertaining to the design and operation of the Software. Dealer
and its customers will disclose the Software only to their respective employees
or others authorized by Dealer or its Customers to administer and maintain the
system who have a need to know for purposes consistent with the uses authorized
under this license. Dealer and its customers shall be responsible to insure that
their respective employees and others so authorized agree and are committed to
abide by the provisions of this Agreement.
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d) Modification : Dealer and its customers shall not make any additions,
deletions or other modifications to the Software except as specifically
instructed or authorized by Fujitsu
e) Termination : This license shall automatically terminate at such time as
Dealer or any customer discontinues use of the Software. Fujitsu may terminate
this license by written notice if Dealer or any customer breaches or defaults in
any of its obligations under this license. In the event of any such breach or
default Fujitsu shall be entitled to injunctive relief against any proscribed
use or disclosure of die Software in addition to any other remedies provided by
law and Dealer and its customers agree to indemnify Fujitsu for any loss or
damage resulting from any such breach or default.
f) Return: Upon termination of this license, Dealer will promptly deliver to
Fujitsu the Software and all copies thereof and all information pertaining to
its design and operation or, at Fujitsu's election, destroy such item and
deliver to Fujitsu certification of their destruction Dealer shall furnish its
customers with a copy of Fujitsu's Limited Software Use Policy (Attachment G-2
hereto) and each such customer shall agree to the terms and conditions therein
as a precondition of the transfer of the software license. There may be
additional software restriction materials to be provided the customer by Dealer
as Fujitsu may direct or as accompany the Products. Dealer will promptly notify
Fujitsu if Dealer learns of any unauthorized copying, reproduction or transfer
of the software or this license or any other breach of the license by any
customer or user. The obligations of Dealer in this Section 16 shall survive any
termination of this Agreement
16.3 The software and software license my not be transferred by Dealers
customers except with the sale of the specific Product to which it relates
provided the transfer has received Fujitsu prior written permission which
permission to transfer may be granted by the specific software license finished
with or for the Product if applicable, provided the intended transferee agrees
in writing to be bound by the provisions as a precondition to the transfer.
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16.4 The license granted hereunder shall commence on the date the software is
received by the Dealer and shall continue until terminated by Fujitsu due to any
one of the following:
a) A breach by Dealer in the terms of this Section; or
b) Mutual agreement of the parties hereto; or
c) Termination of this Agreement for any reason; or
d) Expiration of this Agreement; provided, however that termination of such
license shall not act to terminate existing sublicenses granted by Dealer in
accordance with the terms of this Agreement unless the sublicenses has also
violated the provisions of the sublicense granted or this Agreement.
16.5 The software license herein may be supplemented by the provisions of
any software license specifically finished with or for the Product.
16.6 In the event that these licenses are subject to ongoing taxation by any
jurisdiction, Fujitsu shall not be responsible for the payment of such taxes.
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17. LIMITATION OF LIABILITY
17.1 Fujitsu shall not be liable for any commercial losses, loss of revenues or
profits, loss of goodwill, inconvenience, or exemplary, special, incidental,
indirect consequential or punitive damages whatsoever, or claims of third
parties, regardless of the form of any claim, whether in contract or tort
whether from breach of this agreement or defective or inadequate products or
service, or arising from dealers or its customers inability to use a product
either separately or in combination with any other equipment or from loss of
data, or from any other cause, even if Fujitsu has been advised or should be
aware of the possibility of such damages. Fujitsu's liability for loss or
damages shall not exceed the price paid Fujitsu for the particular item of a
product regardless of the form of any claim Fujitsu shall have no liability
resulting from use of a product in connection with life support devices.
17.2 The period of limitation for any cause of action arising out to based upon
or relating to Fujitsu's warranty herein or a defect in or a failure of
performance of a product or any service rendered by Fujitsu is hereby reduced to
and shall be a period of one year after such cause of action accrues.
18. PATENT MATTERS
Fujitsu shall defend any suit or proceeding brought against Dealer and shall
hold Dealer harmless from any damages finally awarded against Dealer to the
extent they are based upon a claim that the Products sold by Fujitsu infringe a
United States patent or copyright (excepting a claim based upon a design or
modification incorporated in such Products at die request of Dealer or a claim
based upon the use of the Products in combination with other apparatus in which
event(s) Dealer shall indemnify Fujitsu);provided that Dealer promptly notifies
Fujitsu in writing within ten (10) days of receipt of notice of any such suit or
proceeding and provided that Dealer gives Fujitsu the right to defend or control
the defense and/or settlement of any such suit or proceeding (at Fujitsu's
expense) and Dealer provides all necessary information and assistance for such
defense. In the event the Products, or any part thereof is in such suit held to
constitute infringement and/or the use of said Products or part is enjoined,
Fujitsu may, at its own expense and obligation, and at Fujitsu election procure
for the Dealer the right to continue using said Product or may replace same with
non-infringing equipment modify it so it becomes non-infringing, or remove said
item of equipment and refund the Purchase Price thereof paid to Fujitsu less a
reasonable deduction commensurate with the value of the use of said Product.
THIS SECTION 18 SETS FORTH FUJITSU'S ENTIRE LIABILITY AND RESPONSIBILITY WITH
RESPECT TO PATENTS AND COPYRIGHTS. THIS SECTION SHALL NOT APPLY TO APPLICATION
PROCESSORS MANUFACTURED BY A THIRD PARTY AND SOLD UNDER THIS AGREEMENT, AND
FUJITSU SHALL HAVE- NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO SUCH
APPLICATION PROCESSORS, UNLESS THIS SECTION IS INCORPORATED BY REFERENCE INTO
THE AMENDMENT AUTHORIZING DEALER TO SELL SUCH APPLICATION PROCESSOR.
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19. USE OF TRADEMARKS AND NAME
19.1. The Dealer may refer to itself during the Agreement period as a Dealer for
Fujitsu Products solely in connection with Products purchased or otherwise
acquired from Fujitsu under this Agreement. Dealer shall not represent, state,
or imply that it is a division, subsidiary, affiliate, franchise or agent of
Fujitsu or any other Fujitsu affiliate.
19.2. Dealer acknowledges and agrees that Fujitsu's or its affiliates trademarks
and trade names set forth in Attachment C hereto or anything similar thereto
(all of which are however referred to as the "Trademarks") shall at all times be
the property of Fujitsu or its affiliate, that Fujitsu or its affiliate has
title thereto, and that Fujitsu or its affiliate has the right to control the
use of the Trademarks and take all appropriate measures for their protection.
Any use of the Trademarks by Dealer shall inure the benefit of Fujitsu or its
affiliate. Dealer my only use the Trademarks associated with the particular
Products herein. Dealer shall cooperate fully with Fujitsu or its affiliate at
Fujitsu's or its affiliates expense in the defense and protection of the
Trademarks.
19.3. Dealer may utilize the Trademarks of Fujitsu solely for the purpose of
identifying Products purchased from Fujitsu pursuant to this Agreement. No other
rights are granted to the Dealer to use the Trademarks of Fujitsu its suppliers
and vendors, or any Fujitsu affiliate who may supply equipment, Products, or
services pursuant to sales made under this Agreement or otherwise.
19.4. Upon termination or expiration of this Agreement Dealer shall immediately
cease referring to itself as a Dealer for Fujitsu and its Products, and shall
cease using the Trademarks of Fujitsu except as to those Products which remain
in the inventory of the Dealer. The Dealer shall also promptly return to Fujitsu
or destroy all materials in its possession or under its control employing such
Trademarks used in connection with the Products, including all signs,
advertising, letterhead, and forms. Dealer shall likewise discontinue all
representations from which it might be inferred that any relationship exists
between Dealer and Fujitsu.
19.5. Dealer will not register or apply to register any Trademark of Fujitsu or
any other Fujitsu affiliate, nor use, register or apply to register any other
word or device likely to be confused with Fujitsu Trademarks or those of any
Fujitsu affiliate. The obligations of this Section 19 shall survive the
termination or expiration of this Agreement.
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20. REPAIR SUPPORT
20.1. Dealer shall be responsible for all field maintenance services to its
customers and end users at its sole cost and expense.
20.2. In addition to repairs provided for pursuant to the provisions of this
Agreement Fujitsu agrees to provide, at Fujitsu's standard price and terms for
such work, repair service on all products ordered hereunder during the term of
this Agreement and for a period of five (5) years from the shipment to Dealer of
the particular product system or until Fujitsu provides (60) days notice of
discontinuation to Dealer, if earlier.
20.3. Payment for repair services shall be made by Dealer within sixty (60) days
of the invoice date. At the sole discretion of Fujitsu, Dealer may be required
to pay for repair services prior to services actually being performed.
20.4. Return authorization procedures for repairs and repair services shall be
governed by Fujitsu Return and Repair Policy in Attachment D hereto (which may
be amended at any time by Fujitsu upon (30) days notice). Dealer agrees to
utilize Fujitsu's repair services wherever practicable.
21. SPARE PARTS
21.1. Fujitsu will provide new or refurbished (at Fujitsu election) spare parts
for the Fujitsu Products sold hereunder for a period of ten (10) years from the
shipment to Dealer of the particular Fujitsu Product or until Fujitsu provides
sixty (60) days' notice of discontinuation to Dealer, if earlier. Such spare
parts will be available to the Dealer at prices in effect at the time such items
are requested.
22. TERMINATION
22.1 Either party may terminate this Agreement at any time for any reason upon
(60) days' written notice.
22.2 Fujitsu may immediately terminate this Agreement effective upon written
notice to the Dealer at any one of the following events occur:
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a) Insolvency of Dealer, the filing by or against Dealer for relief under
the U.S. (or other applicable) Bankruptcy Code, or the execution by Dealer
of an assignment for the benefit of its creditors.
b) A significant change in the nature, control, or ownership of Dealer's
business, whether voluntary or by operation of law, not acceptable to Fujitsu.
c) Any attempted transfer or assignment of tins Agreement by Dealer without the
prior written consent of Fujitsu.
d) Failure of Dealer to function in the ordinary course of business as a Dealer
or failure or default of Dealer for any reason to carry out the obligations of
this Agreement which is not remedied within thirty (30) days of Fujitsu's notice
to cure said failure or default. .
e) Any failure by Dealer to properly pay for Products or services in accordance
with the terms and conditions of this Agreement.
f) Any failure by Dealer to purchase an F9600 demo system(s) for its own
internal use as required by Section 4.1 (o) of this Agreement.
g) Any failure by Dealer to complete its required training as set forth in
Section 13 herein.
22.3 In addition to the foregoing, in the event Fujitsu is not promptly and
properly paid for Products or any services rendered, Fujitsu may, at its option,
suspend performance under this Agreement.
22.4 Termination or non-renewal of this Agreement shall not release Dealer from
any obligation to pay Fujitsu any sum wlnch may then be due or thereafter become
due and owing including without limitation payments for Product ordered or
shipped.
22.5 Dealer acknowledges and agrees there shall be no obligation on the part of
Fujitsu to repurchase any portion of Dealer's inventory of Products if this
Agreement is terminated or not renewed for any reason by Dealer or by Fujitsu.
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22.6 Upon notice of election to terminate or not renew this Agreement, Fujitsu,
at its option, my accept Orders on cash terms or such other terms as may be
mutually agreed upon, for Products which Dealer is contractually obligated to
furnish to customers/end users prior to the effective date of terminationand
which are not in Dealer's inventory; provided that Dealer furnishes satisfactory
evidence to Fujitsu of the existence of the contractual obligation and provided
further that Fujitsu has a sufficient supply of Product(s) in stock and
available for distribution to supply the same to Dealer.
22.7. DEALER ACKNOWLEDGES THAT IN THE EVENT OF TERMINATION OR
NONRENEWAL OF THIS AGREEMENT, IT SHALL HAVE NO RIGHT TO DAMAGES OR
INDEMNIFICATION OF ANY NATURE FROM FUJITSU WHETHER BY WAY OF FUTURE PROFITS OR
REVENUE OR ANY OTHER LOSS ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS MADE IN CONNECTION WITH THE BUSINESS OR GOODWILL OF DEALER OR
OTHERWISE.
22.8. DEALER ACKNOWLEDGES THAT IN THE EVENT OF TERMINATION OR
NONRENEWAL OF THIS AGREEMENT, IT SHALL HAVE NO RIGHT TO DAMAGES OR
INDEMNIFICATION OF ANY NATURE FROM FUJITSU WHETHER BY WAY OF FUTURE PROFITS OR
REVENUE OR ANY OTHER LOSS ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS MADE IN CONNECTION WITH THE BUSINESS OR GOODWILL OF DEALER OR
OTHERWISE.
22.9. Any failure or forbearance by Fujitsu to exercise its right of termination
upon the accrual of a cause for termination under this Section 22 shall not
operate as a waiver by Fujitsu to exercise such right at a later date or upon
continued or further default.
22.10. In the event that either party has any business transactions with the
other after termination or non- renewal of this Agreement such transactions
shall not be construed as a renewal of this Agreement In the event of
termination or non-renewal of this Agreement Fujitsu shall not be liable for
refusing to accept any orders which had not been accepted prior to the date of
termination or expiration, except that Fujitsu will reasonably attempt to accept
orders as set forth in Section 22.6 above. Any Orders from Dealer accepted by
Fujitsu after termination or non-renewal of this Agreement and the furnishing of
products thereunder shall be governed by the provisions of Fujitsu's General
Conditions of Sale then in effect
23. MANUFACTURE OF PRODUCTS BY FUJITSUS AFFILIATE
It is expressly understood that some of the Products to be sold to Dealer
hereunder will be manufactured by Fujitsu affiliate and Fujitsu's right to
resell to Dealer is granted to Fujitsu by its affiliate. Accordingly, there may
be delays in shipments of Products to Fujitsu in warranty or other repair, or
changes in the Products not caused by or within the control of Fujitsu.
Fujitsu's right to resell may be terminated or curtailed. Dealer accepts this
Agreement and its terms and conditions subject to the above and agrees not to
hold Fujitsu responsible or otherwise look to Fujitsu for recourse of
compensation should any of the above occur. Fujitsu agrees to use its best
efforts to avoid any such occurrence. Dealer will advise its customers of this
situation.
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24. INDEMNIFICATION
Dealer shall defend, hold harmless and indemnify Fujitsu from and against any
and all claims, actions or suits arising out of or resulting from the actions or
omissions of Dealer or its employees or agents under or with respect to the
Agreement or any prior Agreement between the parties or their predecessors or
affiliates or from any default by Dealer under this or any prior Agreement
25. ASSIGNMENT
Neither this Agreement nor the obligations arising hereunder, may be assigned by
Dealer without the prior written consent of Fujitsu. Any prohibited assignment
of this Agreement shall be null and void. Fujitsu may assign this Agreement to
any Fujitsu affiliated company or as the result of any reorganization, merger or
restructuring and shall advise Dealer of such assignment This Agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
parties hereto.
26. GENERAL TERMS
26.1. This Agreement shall be governed by and construed in accordance with the
substantive and procedural laws and practice of the State of California, without
giving effect to the principles of conflict of laws. Venue and jurisdiction for
the resolution of all controversies of this Agreement shall lie only in Los
Angeles or Orange County, California.
26.2. The invalidity or unenforceabihty of any particular provision of this
Agreement shall not effect the other provisions of this Agreement and shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.
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26.3. All information or assistance of a technical or business nature, including
the contents of this Agreement provided to Dealer by Fujitsu in connection with
the negotiation of this Agreement or performance hereunder, and not specifically
authorized in writing by Fujitsu and delivered for the purpose of dealer's
reproduction and/or delivery to its customers, shall be deemed to be of a
proprietary and confidential nature and shall be received by Dealer in strict
confidence and not revealed to third parties or applied to uses or purposes
outside Dealers performance of its obligations under this Agreement No use or
disclosure my be made of such information for die manufacture, sale or promotion
of communications products except for the Products to be sold pursuant hereto.
All such information and material provided to Dealer and all copies thereof
shall remain Fujitsu property and shall be returned to Fujitsu upon demand.
26.4. The waiver of any term, condition or provision of this Agreement shall not
be construed as a waiver of any other term, condition, or provision nor shall
such waiver be deemed a waiver of any subsequent breach thereof.
26.5. Headings used in this Agreement are for convenience only and shall
not be used in interpreting the provisions of this Agreement.
26.6. Except as otherwise expressly provided in this Agreement the provisions of
the Agreement are for the benefit of the parties hereto and not for the benefit
of any other person or entity.
26.7. The provisions contained in this Agreement that by their sense and context
are capable of surviving the expiration or termination of the Agreement shall so
survive the expiration or termination of this Agreement
26.8. The provisions of this Agreement obligate Dealer and Fujitsu only to the
extent that such provisions are lawful and if any provision of this Agreement is
or shall be deemed by mutual agreement of the parties or by final decision in
arbitration or of a court of law or regulative body to be prohibited by law, it
is and shall be ineffective, but only to the extent of and wherever such
prohibition shall be applicable and without invalidating any other provisions
hereof
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27. NOTICES
Any notices or demand given in connection with this Agreement shall be given in
writing and transmitted by personal delivery, prepaid registered or certified
mail, addressed as follows:
To: Fujitsu Business Communication Systems, Inc.
Attn: President
3190 Miraloma Avenue
Anaheim, California 92806
With a copy to: Fujitsu Business Communication Systems, Inc.
1001 Warrenville Road, Suite 200
Attn: Vice President, Distributor Sales
Lisle, IL 60532
To: Dealer: Method Products Corporation
Address: 1301 W. Copons Road F-2 Pompano Bch, Florida 33064
Attention:
CEO Mark Antonucci
Any such notice shall be effective when given.
28. RESOLUTION OF DISPUTES
28.1 Any controversy or claim arising out of or relating to this Agreement, any
modifications or extensions hereto, or any Order, sale, or performance
hereunder, including any claim for damages or rescission or both shall be
settled by binding arbitration m accordance with the Commercial arbitration
codes of the American Arbitration Association. Judgment upon the award rendered
by the arbitrator(s) may be entered m any court having jurisdiction thereof and
the parties cannot agree on the place of arbitrators the arbitration shall take
place in Santa Ana, CA.
28.2 The prevailing party in any arbitration shall be entitled, in addition to
any other rights or remedies it may have, to reimbursement for its expenses
incurred thereby including arbitration costs, reasonable attorneys' fees, and
arbitrators' fees.
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29. ENTIRE AGREEMENT: AMENDMENT
This Agreement constitutes the entire Agreement between the parties with respect
to the subject matter hereof. This Agreement supersedes and terminates all prior
agreements, representations or understandings, whether written or oral, with
respect to the subject matter hereof, except with respect to any existing trade
indebtedness which may be owing from either party to the other or any existing
unfilled orders from Dealer to Fujitsu which will be governed and controlled by
the terms and conditions herein. This Agreement may only be modified or amended
by an instrument in writing signed by duly authorized representatives of both
parties.
IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
representatives by both parties hereto be effective as of the date first written
above.
DEALER FUJITSU BUSINESS COMMUNICATION
SYSTEMS, INC.
Signature Signature
CEO Vice President, Distributor Sales
Title Title
11-6-99 11-22-99
Date Date
