Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT 10.11
[Ingram Micro Logo]
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement"), is entered into this 6th day
of September, 2000 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 Roxio, Inc. ("Vendor"), a Delaware corporation,
having its principal place of business at 461 South Milpitas Blvd., Milpitas,
California 95035. 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 affiliate; and Ingram
accepts, the non-exclusive right to resell and distribute in the United States,
Canada, Mexico and all other countries in North and South America, all computer
products produced and/or offered by Vendor ("Product") during the term of this
Agreement. Ingram shall only have the right to purchase, sell and ship Product
to any reseller within the territory. At Vendor's option Ingram's affiliate
may be allowed to purchase Product direct from Vendor provided the affiliate
agrees to abide by the terms and conditions of this Agreement.
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 be required to purchase in such minimum
quantities as mutually agreed upon in writing between the parties. Ingram may
cancel a purchase order if it is within forty-eight (48) hours from Vendor's
receipt of that order. Outside of this 48 hours Ingram may cancel an order at
anytime but not within fifteen (15) days of its scheduled ship date. Ingram may
at any time reschedule orders but not within three (3) days of its scheduled
ship date if the rescheduled ship date is within the same calendar quarter as
the original ship date. With Vendor's approval shipments can be rescheduled to
future calendar quarters.
1.3 APPOINTMENT For the period from November 1, 2000 through, and including,
October 31, 2001, if Vendor [*].
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
1
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
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 sixty (60) 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
(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 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. Non-standard "Sales Out"
information shall be provided by Ingram subject to a separate Point
of Sale Report License Agreement, a copy of which is attached hereto as
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
2
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
Exhibit F. Ingram agrees to [*] the applicable license fee shall be [*] and
shall be effective immediately thereafter.
(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 F.O.B. destination via ground freight to
Ingram's designated United States (U.S.) warehouse or other specified location
within the U.S. If Ingram requires expedited freight, Vendor will use Ingram's
designated carrier and invoice Ingram the difference in freight cost between the
ground freight and the expedited freight charges. [*] For all shipments Vendor
agrees to comply with Ingram's Vendor Routing and Packaging Guide attached
hereto as Exhibit A (the "Guide"). Vendor is not obligated to utilize the
carrier selection as specified in the routing matrix Section of the Guide but is
encouraged to do so. In the event Ingram is erroneously charged for freight
costs, upon notice from Ingram, Vendor agrees to immediately reimburse Ingram
via credit or via a check if there are no outstanding invoices.
(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.
4.3 PRODUCT AVAILABILITY Vendor agrees to maintain sufficient Product inventory
to fill historically expected Ingram orders. If a shortage of any Product
exists, for Product shipped by Vendor into Ingram's territory, Vendor agrees to
allocate such shipped inventory of such Product to Ingram in proportion to
Ingram's percentage of all accepted Vendor's customer orders for such Product
during the previous sixty (60) days, where the denominator is all accepted
Vendor customer orders for the same Product from all distributors in the same
territory and the numerator is Ingram's accepted customer order for the same
Product for the same territory.
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
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
3
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
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 the Guide specified
in Section 4.1(a) above. 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 B 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 [*]. 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.
(c) END-USER WARRANT 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.
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
4
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
(e) CLASS B WARRANTY Vendor hereby represents and warrants that if
applicable, 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) 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 C. Vendor may modify Exhibit C 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 accepted. Ingram shall
have sole discretion as to selling price of Product to its customers.
5.2 VENDOR PRICING
(a) Vendor agrees that [*].
(b) If [*].
(c) For the purposes of this Agreement, OEM customers shall not be
considered distributors.
5.4 PRICE ADJUSTMENTS If [*]. In the event that Vendor shall raise the list
price of a Product, all orders for such Product accepted prior to, and are
scheduled to be shipped [*] 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 Ingram's payment terms shall be [*]. 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.
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
5
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
6.2 ADVERTISING Vendor agrees to cooperate in Ingram's or Ingram's reseller
customers' advertising and promotion of Product. Vendor grants Ingram a
cooperative advertising allowance of [*] of net purchases amount for such
advertising featuring Product and/or Vendor. Ingram shall submit advertising to
Vendor for review and approval prior to any initial release, and Vendor shall
not unreasonably withhold or delay such approval. Upon receipt of reasonable
evidence of such advertising expenditures, Vendor agrees to credit the amount
thereof [*] against future Ingram purchases.
6.3 PROGRAMS
(a) 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.
(b) Vendor will [*].
6.4 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
(a) Ingram may return [*] of the previous quarters net purchases of any
Products, including Products returned by Ingram customers, for credit against
open invoices. In the event the total Product returns exceed [*] of the previous
quarter purchases, both parties agree in good faith to determine the disposition
of such excess amounts within ten (10) days of the quarter end. Unsold Product
shall be inclusive of Products returned by Ingram customers. Such returns shall
be limited to once per month, and shall be made with advance notice to Vendor as
to estimated arrival date. Upon advance notice of returns, Vendor shall provide
a Return Material Authorization (RMA) within five (5) days of notice. In the
event that such RMA is not issued within five (5) days, Ingram shall have the
right to return any Product(s) to Vendor without an RMA, and Vendor shall be
obligated to accept such return for credit. Ingram shall bear expense and risk
of loss of return shipment.
(b) Vendor shall issue an immediate credit for the purchase price plus
all return freight charges for defective Product, and Products deemed
non-resellable by Ingram customers. Upon Vendor recall of Products due to
defects, revisions, or upgrades, Ingram shall provide reasonable assistance, at
Vendor's expense, in such recall.
(c) Ingram's right to return Products shall survive the term and
termination of this Agreement. Should Ingram have a balance due upon
reconciliation of the account for Products returns, freight chargebacks,
advertising credits, or other upon end of term or termination, Vendor shall
issue payment therefor within thirty (30) days of such term or termination.
Ingram shall use best efforts to return all Products in accordance with Section
7.2 below.
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
6
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
7.2 POST-TERM/TERMINATION For [*] 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 [*] advance written notice
of Product discontinuation. Ingram may return all such Product to Vendor [*]. In
addition, Ingram must return all of its on-hand inventory within [*] days of the
Product discontinuation notice. Ingram and Vendor will use best efforts to
return channel inventory within [*] days. However, Ingram may return Product
returned from its resellers [*]. Product Discontinuation shall include
end-of-life determinations by Vendor and shall also include any Product that is
revised, upgraded or other changes such that a new UPC code is issued for the
Product.
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 Ingrain
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 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
(a) As Ingram's sole remedy for a breach of warranty under Section 4.9
(a) (iii), Vendor will defend, or settle at Vendor's option, any claim, suit, or
proceeding brought against Ingram or its customers, insofar as it is based on a
claim that a Product, or any part thereof, furnished by Vendor under this
Agreement constitutes an infringement of any third party's United States patent,
copyright, trademark, trade name, other proprietary right, or unauthorized trade
secret use; provided that Vendor will have sole control of such defense or
settlement and that Vendor will be relieved of the foregoing obligations unless
(i) Vendor is notified promptly in writing of such claim, and (ii) Vendor is
given, by Ingram or its customers, authority, information and reasonable
assistance (at Vendor's expense) to handle the claim or the defense of any suit
or proceeding. Vendor agrees to pay all damages and costs awarded therein
against Ingram and its customers. Vendor shall not be responsible for any cost
or expenses incurred without Vendor's prior written consent.
(b) In case any Product or any part thereof in such suit is held to
constitute an infringement and its use is enjoined, Vendor shall, at its own
expense and at its option: (i) procure for Ingram and its customers the right to
continue use, or (ii) if applicable, replace the same with a non-infringing
program and documentation of equivalent function and performance, (iii) modify
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
7
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
them so they become non-infringing without detracting from function or
performance, or (iv) request that Ingram and its customers remove the Product,
whereupon Vendor shall refund all purchase price paid for such Product removed.
(c) Notwithstanding anything to the contrary herein, Vendor does not
warrant that, and shall not be obligated to provide a defense to a claim of
infringement if, (i) Vendor's Product is alleged to infringe any property right
covering any assembly, circuit, combination, method or process in which any of
the Product may be used but not covering the Product standing alone; (ii) any
combination of the Product with other software or hardware; or (iii) the
modification of the Product, unless such modification was made by Vendor.
(d) Vendor agrees that in all cases it will provide adequate assurance
to Ingram regarding the risk of any continued sales and will fully indemnify
Ingram and if no action is taken within ninety (90) days of either a claim or
judicial determination of infringement, Ingram may return the 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.
8.7 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 VENDORS 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 more employees,
Vendor will (i) file an EEO-l 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
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
8
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
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 D.
9.6 WOMEN-OWNED BUSINESS CONCERNS Vendor shall comply with instructions
contained in Exhibit D. 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 E,
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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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
9
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
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 M 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
provisions 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.
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.
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CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
10
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
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.
- -----------------------------------------------------------------------------
CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
11
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
IN WITNESS WHEREOF, the parties hereunto have executed this Agreement.
"Ingram" "Vendor"
Ingram Micro, Inc. Roxio, Inc.
1600 E. St. Andrew Place 461 South Milpitas Blvd.
Santa Ana, California 92705 Milpitas, California 95035
By: /s/ Sue Sandoal By: /s/ Tom Shea
Name: Sue Sandoal Name: Tom Shea
Title: VP/GM Title: Chief Operating Officer
Date: 1/23/01 Date: 1/10/01
*Agreement must be signed by President or by a duly authorized Vice President or
Partner.
EXHIBITS:
A - Vendor Routing and Packaging Guide
B - TechNotes
C - Product Price List
D - Small And Disadvantaged Business Certification
E - Partnership America
F - Point of Sale Report License Agreement
- ------------------------------------------------------------------------------
CONFIDENTIAL
VENDOR INITIALS ________ INGRAM'S INITIALS ________
12
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
VENDOR #_____________________
PA #:________________________
[Ingram Micro Logo] Job #________________________
TECHNOTES AGREEMENT (RETURN ALL 3 PAGES)
NOTE: SIGNATURES REQUIRED ON PAGES 2 & 3 (EVEN IF MFR FILL)
This agreement ("Agreement") is made and entered into as of the 10th day of
January, 2001, between Roxio ("Manufacturer"), with its principle place of
business at 461 S. Milpitas Blvd., Milpitas, CA 95035 and Ingram Micro Inc.
("Ingram"), with its principal place of business at 1600 E. St. Andrew Place,
Santa Ana, California 92705. By Manufacturer's signature below, Manufacturer
agrees to participate in Ingram's TechNotes program, according to and bound by
the terms and conditions printed on both pages of this Agreement in addition to
Ingram's Content Distribution Agreement.
PARTICIPATION DETAILS AND REQUIREMENTS:
1. Ingram will distribute all information authored by the Manufacturer under
the terms and conditions of this Agreement and the Content Distribution
Agreement.
2. Ingram will provide the Manufacturer with authoring screens for product
templates via the World Wide Web. (Manufacturer must have Internet access
and a frame compatible browser such as Netscape 3.01 or higher or Internet
Explorer 3.02 or higher)
3. Ingram agrees to provide passwords to a limited number of people identified
by Manufacturer as Editors (able to enter or edit TechNotes) or Viewers
(able to view Manufacturer's Information). Ingram agrees to train Editors
on use of system.
4. Manufacturer agrees to identify a primary contact person as an Editor. This
person will be trained on the use of the publishing system and will have
access to edit certain information related to Manufacturer's products.
5. Manufacturer agrees that Editor(s) will enter information for existing and
new products, as they become available within Ingram's publishing system.
Alternatively, Manufacturer may, at its option, contract for Ingram to
complete product templates and will indicate this preference below.
Manufacturer will identify method of payment and source of available funds.
6. Manufacturer agrees to complete the required fields of each TechNote
template within 60 days of initial training, or 30 days of activating the
associated product in Ingram's electronic systems.
PRIMARY CONTACT
Name Colin Gregor E-mail: gregor@roxio.com
---------------- ------------------
(person who will be providing the content to Ingram and can authorize
its distribution)
Title: Sales Mgr. Telephone #: 949-455-8433 FAX #: 949-455-8473
---------- ------------ ------------
Address: 27121 Towne Centre Drive, Foothill Ranch, CA 92610
--------------------------------------------------
TEMPLATES WILL BE FILLED AND UPDATED BY (check one):
/X/ Manufacturer / / Ingram Tech Support (indicate $ amount below
in "Optional Authoring Fee")
2000 SIGN UP/PARTICIPATION FEE OPTION TEMPLATE ENTRY SERVICE
------------------------------ -----------------------------
FREE if you sign up in 2000 [*]
[*]
[*]
There is no fee to participate in the TechNotes program. If Manufacturer selects
the "Ingram Tech Support" box above, Manufacturer agrees to have Ingram's
Technical Support department or other partner fill out TechNotes on
Manufacturer's behalf and agrees to pay the service fees indicated above and
below. Billing will be done on a quarterly basis for TechNotes authored during
the previous quarter. [*]
PAGE 1 OF 3
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
OPTIONAL AUTHORING FEE (COMPLETE SHADED SECTION BELOW ONLY IF YOU SELECTED
"INGRAM" TO FILL TEMPLATES.)
There are two types of authoring fees available to Manufacturers who have
selected to have Ingram complete TechNotes: a one-time Start-up Fee and a
Quarterly Maintenance fee. Start-up fees should be used to fund initial TechNote
completion for existing products. Quarterly Maintenance Fees are to be used for
completion of TechNotes for new products as they are released each quarter.
Please indicate the amount Manufacturer agrees to pay for each of the following:
Start-up: $_________________ OR/AND Quarterly Maintenance $______________
Manufacturer will only be billed for completed TechNotes up to the maximum
amount indicated.
METHOD OF PAYMENT (Check One) (Complete ONLY if you selected "Ingram Tech
Support" to fill templates.)
_____ Check Payable to Ingram Micro ______ Credit Memo (Requires Product
Manager approval)
SOURCE OF FUNDS (Check One)
_____ MDF _____ Co-op _____ In-house MDF
_____ Other ___________________ (Please specify)
- --------------------------------------------------------------------------------
DURATION OF AGREEMENT: Agreement will continue one year from the date above.
Thereafter, the Agreement will be automatically renewed for additional one-year
periods, subject to the right of either party to terminate at the end of the
term by delivering written notice to the party at least thirty (30) days prior
to the end of the period. Manufacturer may terminate this Agreement, with or
without cause.
Submission of a Contract is not a guarantee of inclusion. Ingram reserves the
right to refuse or cancel any participation in the TechNotes for any reason at
any time. Ingram reserves the right, at any time, to review and/or edit
information added to TechNotes without notice. Ingram may require Manufacturer
to maintain a minimum level of complete TechNotes in order to participate in
other Ingram programs or activities. Ingram will not liable for damages related
to information that is inaccurately entered into a product template, whether the
work in completed by the Manufacturer, an Ingram associate, or other partner.
Manufacturer's sole remedy and Ingram's only liability will be for Ingram to
correct the submission and republish it at Ingram's expense. Payment is due
within thirty (30) days of the invoice date. If payment is not received within
30 days, Ingram has the right to deduct moneys from any balance due and owing to
the Manufacturer. The party signing below represents that it has the requisite
authority to execute this Agreement.
Info Below to be filled by Manufacturer Representative (even if MFR fill)
Manufacturer Representative Name: Tom Shea Title: COO
---------------- ----------------
Signed: /s/ Tom Shea Date: 1/10/01 Manufacturer #: 6725
--------------------- ----------------- -------
Company: Roxio Phone: (408) 259-7694 Fax #: ( )
-------------------- ---------------- ----------------
Address: 461 S. Milpitas Blvd., Milpitas, CA 95035
-----------------------------------------------------------------------
Info Below to be filled by Ingram Micro Representative (Product Manager)
Ingram Signature: /s/ Sue Sandoal Title: VP/GM Ext.:
-------------------- ------------- --------------
++++ The following information is very critical. Please complete!
+++ Please LIST ALL VENDOR NUMBERS associated with this
manufacturer: (______) (______) (______)(_______)
++ Who is the Product Manager ext.
------------------- ------------------------
+ What is your BUYER #
--- --- --- ---
PAGE 2 OF 3
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
INGRAM MICRO CONTENT DISTRIBUTION AGREEMENT
This agreement "Agreement" is made and entered into as of the 10 day of
January, , 2001 (The "Commencement Date") between Ingram Micro Inc., a
Delaware corporation ("Ingram"), and Roxio ("Manufacturer"), a Delaware
corporation. The parties agree as follows:
7. Delivery and License. Manufacturer agrees to provide to Ingram data, images,
photos, logos, and other varieties of information regarding Manufacturer's
products and services (collectively "Information") for distribution by Ingram
through its information distribution services which may be updated from time to
time (hereinafter referred to as "Electronic Resources"), including, but not
limited to, distribution via the World Wide Web (internet), Intranet, Fax,
CD-ROM, Floppy disk, broadcast, narrowcast, email, and other electronic media.
Manufacturer hereby grants Ingram a non-exclusive worldwide license to market,
license, distribute, display, perform, transmit and promote the Information
through the Electronic Resources. Manufacturer agrees to deliver the information
to Ingram in the manner and format set forth in the Electronic Resources
Policies and Procedures for Ingram's Manufacturer Partners for the specific
program to which particular information is appropriate. ("Procedures").
Manufacturer agrees that it is both necessary and of mutual benefit to the
parties that the information be as error free as is commercially feasible.
8. Use. Both parties agree that the Electronic Resources (and Manufacturer's
Information therein) will be made available to users which have registered with
Ingram to use the variety of electronic tools offered by Ingram. Certain
Information may also be made available to Ingram's customer's customers,
non-registered users, or other business partners. Manufacturer acknowledges that
the Information will be made available to such users worldwide via the World
Wide Web or other methods of distribution.
9. Information Warranties. Manufacturer hereby represents and warrants that the
Information (i) will not infringe on or violate any copyright, patent or any
other proprietary right of any third party, and (ii) will not contain any
content, materials or services which violate any applicable law, regulation or
third party right, and (iii) contains no computer virus or similar program or
data.
10. Ingram Operation Responsibilities. Ingram will maintain and implement such
facilities, equipment, programming and data communications network and any other
combination of hardware and software as are necessary to offer and provide
Electronic Resources. Ingram shall not be responsible for screening, editing, or
monitoring the Information prior to its distribution by Electronic Resources,
but may do so at its discretion.
11. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM THE USE OR INABILITY TO USE THE ELECTRONIC RESOURCES OR
THE INFORMATION, OR ANY OTHER PROVISIONS OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
12. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ELECTRONIC
RESOURCES OR THE INFORMATION, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE.
13. Indemnity. Either party will defend, indemnify, save and hold harmless the
other party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other party from any and all third party
claims, demands, liabilities, cost or expenses, including reasonable attorney's
fees ("Liabilities"), resulting from the indemnifying party's material breach of
any duty, representation, or warranty of this Agreement, except where
Liabilities result from the gross negligence or knowing and willful misconduct
of the other party.
14. Law. The validity, construction, and performance of this Agreement will be
governed by the substantive law of the State of California, not including its
law on conflicts of laws. If any provision of this Agreement is held by a court
of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise
contrary to law, the remaining provisions of this Agreement shall remain in full
force and effect.
15. Independent Contractors. The parties hereby agree that in the performance of
their respective obligations hereunder, they are, and shall be independent
contractors, and not agents of each other.
16. Waiver. The failure of either party to enforce or to exercise, at any time
or for any period of time, any term of or any right arising pursuant to this
Agreement does not constitute, and shall not be construed as, a waiver of such
term or right, and shall in no way affect that party's right later to enforce or
exercise it.
17. Confidential Information. Each party acknowledges that Confidential
Information may be disclosed to the other party during the course of this
Agreement. Each party agrees that it shall take reasonable steps, at least
substantially equivalent to the steps it takes to protect its own proprietary
information, during the period this Agreement is in effect, and for a period of
three (3) years following expiration or termination of this Agreement, to
prevent the duplication or disclosure of Confidential Information, other than by
or of its employees or agents who must have access to the Confidential
Information to perform such party's obligations hereunder, who shall each agree
to comply with this Section 11. Nor shall there be "Confidential Information"
for purposes of this Agreement, any information relating to or disclosed in the
course of the Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing party, including, but not limited
to, the material terms of this Agreement, technical processes and formulas, and
source codes, sales, projections and marketing data.
18. Notices. All notices or other communications required to be given hereunder
shall be in writing and delivered either personally or by mail or overnight
courier to the parties at the address provided by each party below, unless such
address has been changed and notice of such change has been delivered in
accordance with this provision.
19. Entire Agreement. The provisions of this Agreement or other agreements
authorizing Ingram to distribute manufacturer's information constitute the
entire Agreement between the subject matter hereof, except other related
agreements referenced herein. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth in a
writing that refers to the Agreement and provisions so affected and is executed
by authorized representatives of both parties.
- --------------------------------------------------------------------------------
Agreed as of the Commencement Date stated above.
MANUFACTURER SECTION (MANUFACTURER REP MUST FILL) INGRAM MICRO SECTION
(INGRAM REP MUST FILL)
Company Name: Roxio, Inc. INGRAM MICRO, INC.
Mailing Address: 461 S. Milpitas Blvd. 1600 E. ST. ANDREW PLACE
City, State, Zip: Milpitas, CA 95035 SANTA ANA, CALIFORNIA 92705
Company Rep: Tom Shea Ingram Rep: Sue Sandoal
Signature: /s/ Tom Shea Signature: /s/ Sue Sandoal
Your Title: Chief Operating Officer Your Title: VP/GM
PAGE 3 OF 3
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT C
PRODUCT PRICE LIST
The prices for the Products offered under this Agreement shall be
(check one):
X As shown on Vendor's price list dated 1/1/2001.
- ------- --------
As shown below.
- -------
Product List Price Discount
- ----------------------- ------------------------------ -----------------------
ROXIO, INC. PAGE 1 CONFIDENTIAL
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
[Roxio logo] DISTRIBUTOR PRICE LIST-- JANUARY 2001
THE DIGITAL MEDIA COMPANY FROM ADAPTEC
- ------------------------------------------------------------------------------------------------------------------------------------
ORDERING DISTRIBUTOR SUGGESTED MIN. ORDER
NUMBER PRODUCT/DESCRIPTION PRICE RETAIL PRICE QUANTITY DIMENSIONS WEIGHT UPC CODE
- ------ ------------------- ----------- ------------ ---------- ------------------- --------- ---------------
1818600 ASW-EZCDCRTR 4 RTL [*] $99.00 10 L 10.00 W8.00 H2.50 1.65 lbs. 7 60884 13465 8
- ------------------------------------------------------------------------------------------------------------------------------------
CD-Recording Software for PCs. Easily create audio, data, photo and video CDs and back up your hard drive.
OS Support: Win95/98/NT4.0. Included Software: TakeTwo, DirectCD, CD SpinDoctor, PhotoRelay, MGI PhotoSuiteIISE,
MGI VideoWaveIISE
1832600 ASW-Soundstream RTL v1.x [*] $29.00 10 L 10.23 W7.76 H2.08 .64 lbs. 7 60884 13516 7
- ------------------------------------------------------------------------------------------------------------------------------------
Sound Stream. Software for recording audio CDs. OS Support: Win95/98/NT4.0
1822600 ASW-Toast 4 RTL [*] $99.00 10 L 10.00 W8.00 H2.50 1.65 lbs. 7 60884 13467 2
- ------------------------------------------------------------------------------------------------------------------------------------
Toast 4 Deluxe for Macintosh lets you make your own CDs. Now includes CD SpinDoctor and PhotoRelay applications. MP3
support, USB and IDE drive support. OS Support: Mac OS 7.6 to Mac OS 8.6 Included Software: PhotoRelay, CD SpinDoctor,
Toast CDReader, Toast Audio Extractor
1687300 ASW-JAM RTL E [*] $199.00 10 L 10.00 W8.13 H2.50 1.00 lbs. 7 60884 12994 4
- ------------------------------------------------------------------------------------------------------------------------------------
CD-Recording software for Macintosh, specifically designed to enable users to make their own professional audio CDs. OS
Support: Macintosh
1862400 ASW-GoBack RTL [*] $49.95 10 L 2.25 W7.75 H10.25 .70 lbs. 7 60884 13608 9
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Retail Kit has the power to undo PC problems. Effortlessly protect, recover and repair your system and data to
maximize your productivity. OS Support: Win 95/98/Millenium
1864300 ASW-GoBack 10 PK [*] $420.00 2 L 5.00 W5.25 H8.25 2.70 lbs. 7 60884 13614 0
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack 10-Pack consists of a 10-pack (shrinkwrapped, no box) of the Roxio GoBack software-the power to undo PC problems.
OS Support: Win95/98/Millennium
1862600 ASW-GoBack Pro 1 LIC [*] $69.95 10 L 8.00 W.5.25 H0.65 .40 lbs. 7 60884 13609 6
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 1 User License provides one user license of the Roxio GoBack Pro software. Ideal to undo PC problems in public
access computing environments. OS Support: Win95/98/Millennium. Included Software: CD and one manual with the "right to
copy" for one seat.
1862700 ASW-GoBack Pro 5 LIC [*] $320.00 2 L 8.00 W5.25 H0.65 .40 lbs. 7 60884 13610 2
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 5 User License provides five user licenses of the Roxio GoBack Pro software. Ideal to undo PC problems in
public access computing environments. OS Support: Win95/98/Millennium. Included Software: CD and one manual with the
"right to copy" for five seats.
ROXIO CONFIDENTIAL ROXIO DISTRIBUTOR PRICE LIST
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
[Roxio logo] DISTRIBUTOR PRICE LIST-- JANUARY 2001
THE DIGITAL MEDIA COMPANY FROM ADAPTEC
- ------------------------------------------------------------------------------------------------------------------------------------
ORDERING DISTRIBUTOR SUGGESTED MIN. ORDER
NUMBER PRODUCT/DESCRIPTION PRICE RETAIL PRICE QUANTITY DIMENSIONS WEIGHT UPC CODE
- ------ ------------------- ----------- ------------ ---------- ------------------- --------- ---------------
1864500 ASW-GoBack Pro 10 LIC [*] $520.00 2 L 8.25 W5.25 H0.65 .40 lbs. 7 60884 13615 7
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 10 User License provides ten user licenses of the Roxio GoBack Pro software. Ideal to undo PC problems in
public access computing environments. OS Support: Win95/98/Millennium. Included Software: CD and one manual with the
"right to copy" for ten seats.
1864600 ASW-GoBack Pro 50 LIC [*] $2,240.00 1 L 4.00 W5.50 H8.50 2.63 lbs. 7 60884 13616 4
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 50 User License provides fifty user licenses of the Roxio GoBack Pro software. Ideal to undo PC problems in
public access computing environments. OS Support: Win95/98/Millennium. Included Software: 5 CDs and five manuals with the
"right to copy" for fifty seats.
1864700 ASW-GoBack Pro 100 LIC [*] $3,730.00 1 L 4.00 W5.50 H8.50 2.30 lbs. 7 60884 13617 1
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 100 User License provides one-hundred user licenses of the Roxio GoBack Pro software. Ideal to undo PC
problems in public access computing environments. OS Support: Win95/98/Millennium. Included Software: 5 CDs and five
manuals with the "right to copy" for one-hundred seats.
1864800 ASW-GoBack Pro 500 LIC [*] $16,980.00 1 L 8.00 W5.50 H8.50 4.50 lbs. 7 60884 13618 8
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 500 User License provides five-hundred user licenses of the Roxio GoBack Pro software. Ideal to undo PC
problems in public access computing environments. OS Support: Win95/98/Millennium. Included Software: 10 CDs and ten
manuals with the "right to copy" for five-hundred seats.
1864900 ASW-GoBack Pro 1000 LIC [*] $29,700.00 1 L 8.00 W5.50 H8.50 4.50 lbs. 7 60884 13619 5
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack Pro 1000 User License provides one-thousand user licenses of the Roxio GoBack Pro software. Ideal to undo PC
problems in public access computing environments. OS Support: Win95/98/Millennium. Included Software: 10 CDs and ten
manuals with the "right to copy" for one-thousand seats.
1822600FR ASW-Toast 4 RTL/FR [*] $99.00 10 L 10.00 W8.00 H2.50 1.65 lbs. 7 60884 13031 8
- ------------------------------------------------------------------------------------------------------------------------------------
Toast 4.0 Deluxe for Macintosh French Version for Canada
1818600FR ASW-EZCDCRTR 4 RTL/FR [*] $99.00 10 L 10.00 W8.00 H2.50 1.65 lbs. 7 60884 13507 5
- ------------------------------------------------------------------------------------------------------------------------------------
EZ CD Creator 4.0 Deluxe for PC French Version for Canada
1862400FR ASW-GoBack RTL/FR [*] $49.95 10 L 10.25 W7.75 H2.25 .70 lbs. 7 60884 13737 1
- ------------------------------------------------------------------------------------------------------------------------------------
GoBack PC Undo Software for PC French Version for Canada
- ------------------------------------------------------------------------------------------------------------------------------------
ROXIO CONFIDENTIAL ROXIO DISTRIBUTOR PRICE LIST
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT F
POINT OF SALE REPORT
LICENSE AGREEMENT
This Agreement (the "Agreement") is made this 17th day of November,
2000 by and between Ingram Micro Inc., a Delaware corporation with its principal
place of business at 1600 East St. Andrew Place, Santa Ana, California 92705
("Ingram"), and Roxio, Inc., a Delaware corporation, with its principal place of
business at 691 South Milpitas Blvd., Milpitas, California 95035, California
90405 ("Licensee").
WHEREAS Ingram is engaged in the research, collection, compilation and
distribution of information relating to its sales and it is willing to license
such information to Licensee for its internal use. Licensee wishes to receive
such information and to use it in accordance with the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual promises set out herein, the
parties hereby agree as follows:
1. INFORMATION DEFINED. Ingram shall provide Licensee information relating to
its sales and such information includes, but is not limited to the Point of Sale
Report hereinafter referred to as "Proprietary Information".
2. LICENSE TO USE. Ingram hereby grants Licensee a nonassignable license to use
the Proprietary Information for internal purposes only. Licensee agrees not to
contact any customer or dealer listed in the Proprietary Information for the
purpose of soliciting a direct sales relationship between Licensee and such
customer or dealer. Notwithstanding the foregoing, Licensee shall not be
prohibited from contacting or soliciting those customers or dealers (a) with
whom Licensee already has a direct relationship, (b) who contact Licensee of
their own accord, and (c) who are developed as prospective customers or dealers
independent of the Proprietary Information.
3. LICENSE FEES. Ingram agrees to [*] license fee shall be [*] and shall be
effective immediately thereafter.
4. TERM. The term of this Agreement, unless terminated in accordance with
paragraph 9, shall be concurrent with the term of that mutual Distribution
Agreement between Ingram and Licensee dated September 6, 2000, incorporated by
reference as if fully set forth herein or any successor Agreements thereto
provided there is no contractual lapse. In the event of expiration or earlier
termination of the Distribution Agreement or the earlier termination of this
Agreement Ingram may deduct any outstanding accrual of the rebated amount.
5. COPYRIGHT. Licensee acknowledges that all Proprietary Information and all
written descriptions, extractions, or summaries thereof, whether made by
Licensee or Ingram, shall be the property of Ingram and that the granting of a
license to use the Proprietary Information hereunder shall in no way constitute
or be construed as a grant of any proprietary interests or copyrights in the
Proprietary Information. Licensee agrees that it will not copy, scan, duplicate
or reproduce any of the
ROXIO, INC. PAGE 1 CONFIDENTIAL
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
Proprietary Information in any manner whatsoever, except that Licensee shall be
permitted to create additional copies of the Proprietary Information for its
internal use only.
6. NON-DISCLOSURE. Licensee agrees to hold in confidence and not to directly or
indirectly use, reveal, report, publish, disclose or transfer to any other
person or entity any of the Proprietary Information or utilize any of the
Proprietary Information for any purpose at any time except as permitted under
Section 2. Licensee shall have the right to disclose the Proprietary Information
to key employees of Licensee to the extent necessary to perform tasks directly
related to the permitted uses; provided, however that the Licensee shall take
steps to ensure that such employees conduct themselves so as to preserve
confidentiality of the Proprietary Information. Licensee and Ingram mutually
agree that Ingram's public disclosure of the Proprietary Information, except
pursuant to a confidential disclosure agreement, to any party will release
Licensee from the obligation of confidentiality with respect to that portion of
the Proprietary information actually disclosed by Ingram.
7. REMEDY IN EVENT OF UNAUTHORIZED DISCLOSURE. Because of the unique and
proprietary nature of the Proprietary Information, it is understood and agreed
that Ingram's remedies at law for a breach by Licensee of its obligations under
this Agreement will be inadequate and that Ingram shall, in the event of such
breach by Licensee, be entitled to equitable relief (including, without
limitation, injunctive relief and specific performance) without any requirement
to post a bond as a condition for such relief, in addition to all other remedies
under this Agreement or available at law. In addition, Licensee agrees to and
shall indemnify Ingram from and compensate Ingram for any and all damage or
injury, including legal fees and costs incurred by Ingram because of Licensee's
misuse of any Proprietary Information or costs incurred by Ingram in enforcing
its rights hereunder. This provision shall survive the expiration or earlier
termination of this Agreement for a period of one (1) year.
8. DISCLAIMER OF LIABILITY. Ingram makes no warranty, either express or implied,
as to the completeness and accuracy of the Proprietary Information. All
Proprietary Information is provided to Licensee "as is". INGRAM DISCLAIMS ALL
WARRANTIES RELATING TO THE PROPRIETARY INFORMATION. INGRAM DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE. Licensee's sole remedy in the event that Proprietary
Information contains a material error (which Ingram cannot correct within thirty
(30) days after Licensee notifies Ingram in writing) shall be to return the
Proprietary Information to Ingram for a refund of a prorate portion of the
license fee as applicable.
9. TERMINATION. Upon termination of this Agreement by either party for any
reason which shall be effective upon thirty (30) days written notice, Licensee
shall return all Proprietary Information, irrespective of format, to Ingram
within thirty (30) days of the effective date of termination or if Ingram so
requests, to certify to Ingram that all Proprietary Information and copies
have been destroyed. For purposes of enforcing this provision, Licensee's return
obligation shall survive the termination of this Agreement.
10. ADDITIONAL PROVISIONS. This Agreement shall be governed by the laws of the
State of California. This Agreement contains the full and complete understanding
of the parties with respect
ROXIO, INC. PAGE 2 CONFIDENTIAL
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
to the subject matter hereof and supersedes all prior representations or
understandings, whether oral or written. In the event that any provision is
found invalid or unenforceable pursuant to statutory or judicial decree, such
provision shall be construed only to the maximum extent permitted by law, and
the remainder of the Agreement shall be valid and enforceable in accordance with
its terms. Notwithstanding the termination or expiration of any other agreement
between the parties, the obligations created hereunder shall continue
indefinitely.
INGRAM MICRO INC. ROXIO, INC.
By: /s/ Sue Sandoal By: /s/ Tom Shea
----------------------------- ----------------------------
Name: Sue Sandoal Name: Tom Shea
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Title: VP/GM Title: Chief Operating Officer
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Date: 1/23/01 Date: 1/10/01
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ROXIO, INC. PAGE 3 CONFIDENTIAL