EXHIBIT 10.1
INGRAM
MICRO'r' INGRAM ALLIANCE'r'
RESALE AGREEMENT
This Agreement ("Agreement") is by and between Emtec, Inc. ("Emtec, Inc."), with
its principal place of business at 817 East Gate Drive, Mt. Laurel, NJ, 08054
and Ingram Micro Inc. ("Ingram Micro") including its division, Ingram Alliance
("Ingrain Alliance"), with their principal place of business at 1600 E. St.
Andrew Place, Santa Ana, California 92705. The term "Ingram will be used to
describe both Ingram Micro and Ingram Alliance unless a term or condition
differs between the two, in which case the specific name will be used
accordingly. This Agreement will include Emtec, Inc.'s domestic locations only.
1. Purpose
The purpose of this Agreement is to provide the terms and conditions
for the purchase and resale by Emtec, Inc. and the sale by Ingram to
Emtec, Inc. of various computer products including both hardware and
software ("Product").
2. Terms of Sale
A. All Product sales will be subject to Ingram Micro's then-current
standard Sales Terms and Conditions published in its Comprehensive
Catalog ("Catalog") at the time of purchase. Should Ingram Micro's
Catalog provisions conflict with this Agreement, the provisions of this
Agreement will prevail.
B. All Ingram Alliance Product sales are subject to the terms and
conditions shown in the Ingram Alliance Emtec, Inc. Agreement (Exhibit
A). Should the provisions in Exhibit A conflict with this Agreement,
the provisions of this Agreement will prevail.
C. If authorization for resale is required by the publisher or
manufacturer of any Product, then Ingram will not be obligated to sell
such Product to Emtec, Inc. unless Ingram has received such required
authorization.
3. Ordering
A. Emtec, Inc. will compile, update, and provide Ingram with Product
order information. The Product order information will include the: (i)
Product type(s), (ii) unit quantity, (iii) Ingram SKU number and or
Manufacturer Part Number, (iv) Emtec, Inc. price, and (v) correct
shipping address. Emtec, Inc. personnel will identify, for each Product
order, the ship-to destination as either Emtec, Inc., Emtec, Inc.'s
customer, or to some other specified third party. Ingram will, subject
to Product availability, use its best efforts to fill and ship all
Product orders placed by Emtec, Inc. within one (1) business day of
order receipt.
B. For government orders, Emtec, Inc. will compile, update, and provide
Ingram with the following Product order information: (i) Product
type(s), (ii) unit quantity, (iii) end user name and zip code, and (iv)
government contract number. Emtec, Inc. personnel will identify, for
each Product order, the ship-to destination as either Emtec, Inc.,
Emtec, Inc.'s customer, or to some other specified third party. Ingram
will, subject to Product availability, use its best efforts to fill and
ship all Product orders placed by Emtec, Inc. within one (1) business
day of order receipt. Ingram will have no obligation to confirm the
validity of any order placed or the authority of the person placing an
order in this manner. Emtec, Inc. will disclose its Ingram customer
number only to its personnel with a need to know.
C. Ingram will accept orders over telephone, via facsimile, and via
Ingram approved electronic ordering methods as defined in Ingram's
Comprehensive Catalog only from those who identify themselves
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as Emtec, Inc. personnel and provide the Ingram customer number prior
to placing the order. Ingram will have no obligation to confirm the
validity of any order placed or the authority of the person placing an
order in this manner. Emtec, Inc. will disclose its Ingram customer
number only to its personnel with a need to know.
4. Volume Commitment
Emtec, Inc. agrees that it will make best efforts, based on the pricing
offered, to achieve combined annual Ingram and Ingram Alliance
purchases of $21,000,000 for the term of this Agreement. This annual
purchase objective may be reviewed and adjusted quarterly.
5. Pricing and Payment Terms
INGRAM MICRO
A. All Product prices will be as shown in Ingram Micro's on-line
ordering system as of the date of order.
B. Ingram Micro's price to Emtec, Inc. for standard Product purchases
will be Ingram Micro cost divided by the factor applicable to the
Product type. The Product types and factors will be as follows:
Product Type Factor
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Software .950
Hardware .945
Accessory Product .940
Technical Product .925
Note: Technical Products consist of those component parts found inside
the CPU. The memory, the motherboard, networking card and modem card
that require a higher level of expertise to either service or sell.
Also, networking products that support LAN's and WAN's that allow for
connectivity between multiple work stations.
C. Specialty Product purchases, including but not limited to memory,
licenses, books some technical education and exclusives may not be
included in the above pricing.
D. Exhibit D provides a list of vendors for which the pricing is
adjusted individually and separately from the pricing above. All other
vendor lines for which Emtec, Inc. is authorized will be subject to the
pricing referred to in this section.
E. As manufacturer costs change, Ingram Micro's price to Emtec, Inc.
may be adjusted to reflect such changes.
F. Ingram Micro will invoice Emtec, Inc. upon Product shipment, and all
invoices will be due and payable net thirty (30) days from invoice
date.
INGRAM ALLIANCE
G. Prices for all floored and subsidized Product purchases will be
Ingram Alliance replacement cost on the date of purchase plus the
percentage listed below. Pricing is valid for one year unless
manufacturer costs change, Ingram Alliance's price to Reseller may be
adjusted to reflect such change.
Cost plus 2.1% on all Ingram Alliance "B" Products as listed
in Exhibit B
Cost plus 2.1% on all Ingram Alliance "C" Products as listed
in Exhibit B
NOTE: Ingram Alliance calculates Emtec, Inc. cost by taking Ingram
Alliance's replacement cost of the Product, without additional freight
loads or other fees, and dividing it by the reciprocal of the cost plus
the percentage stated above.
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H. Ingram Alliance pricing applies to flooring purchases only. Emtec,
Inc. agrees to utilize Ingram Alliance approved flooring companies as
listed in Exhibit C, in order to assure the vendor subsidizes the
associated flooring fees. If Emtec, Inc. does not use an Ingram
Alliance approved flooring company for each vendor, Emtec, Inc. will be
billed for the flooring fees from the flooring company.
I. In the event Emtec, Inc. elects to place an order on the Ingram
Alliance net terms account, Ingram Alliance will invoice Emtec, Inc.
upon Product shipment, and all invoices will be due and payable net
thirty (30) days from invoice date. A net terms fee of two percent
(2.0%) of the total invoice amount will be added to orders placed on
Emtec, Inc.'s net terms account. If payments are not received within
thirty (30) days, additional interest charges may be added.
6. Fees
A. Ingram Alliance agrees to waive minimum order fee.
B. Ingram Alliance agrees to waive drop ship order fee.
C. A rebox fee of thirty five dollars ($35.00) per item will be charged
on all Ingram Products returned in a damaged box.
7. Shipping
Reseller's Product orders will be shipped F.O.B. origin, ground service, Ingram
Alliance's carrier of choice, and Ingram Alliance will pay all ground freight
charges on orders which are shipped from any of its distribution centers. Ingram
Alliance will ship via 2-day ground delivery on all shipments from either of
Reseller's primary Ingram Alliance distribution centers, located in Memphis, TN
or Carol Stream, IL, or Harrisburg, PA. This will result in Product being
delivered in 1-2 days. For Product not in stock in either of the Reseller's
primary Ingram Alliance distribution centers, Ingram Alliance will assess
freight options on a case by case basis. Upon Reseller request, Product orders
may be shipped overnight expedited delivery via Reseller's carrier of choice.
Reseller will pay all overnight freight charges and all orders will be shipped
F.O.B. origin.
Note: The 2-day delivery terms are effective through December 31, 1997 after
which time such terms will be subject to review.
8. Returns
A. For Ingram Micro Product returns, Emtec, Inc. will be entitled to
the same customer support, stock balancing and defective Product return
privileges as is extended to Ingram Micro's customers in Ingram Micro's
Catalog.
B. Products purchased from Ingram Alliance which are not found to be
defective may be returned within one hundred fifty (150) days after
invoice date. All returns will be subject to the returns fees listed in
the table below which (i) are derived from Reseller's stock balance
returns as a percentage of gross sales during that current Ingram
Alliance fiscal quarter, and (ii) will be invoiced at the end of that
fiscal quarter. Returns will be processed at the lower of either the
invoice price paid by Emtec, Inc. or the current price as shown in
Ingram Alliance's on-line ordering system as of the date of return
request. All Products returned must be undamaged, in the manufacturer's
original packaging, unused and in resalable condition.
RETURNS PERCENT FEE
0%-5% No fee
5.01%-15% 5%
15.01% or more 15%
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C. All defective/DOA returns must follow the policies as published by
each individual manufacturer.
D. Ingram will not accept stock balance returns for special orders or
configured systems.
E. Ingram will not accept open box returns.
9. Vendor Funds
Any co-op or marketing funds provided by vendors for Emtec, Inc. will
be passed through Ingram Alliance to Emtec, Inc. at 100%. Ingram
Alliance agrees to support Emtec, Inc.'s annual marketing plan with
incremental marketing funds on a case-by-case basis.
10. Term and Termination
This Agreement will commence on the date of the last signature set
forth below and will continue for one (1) year. Either party may
terminate this Agreement without cause by giving thirty (30) days
advance written notice to the other party. Ingram may terminate this
Agreement immediately for cause upon written notice, which notice will
include a ten (10) day opportunity to cure.
11. Confidentiality
This Agreement is and contains confidential information, and as such
will not be disclosed to any third party without the express written
consent of both parties. The parties agree to disclose the terms and
conditions of this Agreement only to their respective personnel with a
need to know.
12. Notices
All notices and other communications relating to this Agreement or its
terms will be in writing and mailed via first class United States
Postal Service, certified or registered with return receipt requested
or via facsimile. All notices so mailed will be deemed received two (2)
days after postmark date and facsimiles will deemed received upon
notification of successful transmission.
13. Entire Agreement
This Agreement (including any Exhibits and Addenda) constitutes the
entire Agreement between the parties regarding the resale of Product,
and will cancel, terminate, and supersede any and all previous
agreements, proposals, representations, or statements, whether oral or
written. The terms of this Agreement will supersede the terms of any
invoice or purchase order issued by either party. Any modifications of
this Agreement must be in writing and signed by an authorized
representative of each party.
14. Governing Law
This Agreement will be deemed made in the State of California and will
be governed by and construed in accordance with California laws,
excluding its conflicts or choice of law rule or principles which might
refer to the law of another jurisdiction. The state and federal courts
situated in Orange County, California will have non-exclusive
jurisdiction and venue over any dispute or controversy which arises out
of this Agreement.
15. Headings
This Agreement may be executed in any number of original counterparts,
each of which when executed and delivered will be deemed to be an
original and all of which taken together will constitute but one and
the same instrument. Headings in this Agreement are included for
convenience of reference only and will not constitute a part of this
Agreement for any other purpose.
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This Agreement will be effective as of the last date of signature by the
authorized parties below.
"Reseller" Ingram Micro, Inc. Ingram Micro, Inc.
By: By: By:
/s/ R. K. Landon /s/ Stephen A. Halland
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(Officer of the Company) (Officer of the Company) (Officer of the Company)
Name: R. K. Landon Name:Stephen A. Halland Name:
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(please print or type) (please print or type) (please print or type)
Title: Exec. Vice President Title: VP, Bus Dev Title:
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(please print or type) (please print or type) Area Vice President
Date: 9/24/97 Date: 9/29/97 Date:
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