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EXHIBIT 10.9
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EQUIPMENT PURCHASE AGREEMENT
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The following document constitutes a Purchase Agreement between:
SUMMIT V, INC., a subsidiary of Jenkon International, Inc., a corporation
organized and existing under the laws of the State of Washington, United States
of America, located at 4601 NE 77TH AVENUE, SUITE 300, VANCOUVER, WA 98662,
hereinafter referred to as Seller, and
ISM, Inc. (Maxxis Group, Inc.), a corporation organized and existing under the
State of GEORGIA, United States of America, located at 11205 ALPHARETTA HWY,
SUITE G-3, ROSWELL, GA 30076, hereinafter referred to as BUYER.
1. BASIS OF AGREEMENT
Buyer agrees to purchase the equipment identified herein, and Seller
agrees to sell the respective specified products listed at the
Agreement price in Paragraph 3.1 as agreed upon in the Terms and
Conditions of this Equipment Purchase Agreement.
2. HARDWARE EQUIPMENT
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LIST OF EQUIPMENT PRICE
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MONOLITH MARQUIS POWER SERVER $14,750.00
1 Intel 586/200mhz Pentium Pro Processor
1 SVGA 14' Color System Monitor and 101 -Key Keyboard
1 2.0 GB Hard Disk
1 1.44 MB Diskette Drive
1 32MB RAM
1 2 Serial Ports
1 Parallel Printer Port
1 SmartSource UPS 650
1 2.5 Gb 1/4 Tape Back-Up System
1 16 - Port Mux
1 1 year On-Site Maintenance
1 Support Modem with Cable
1 On-Site Installation
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3. PRICE AND PAYMENT SCHEDULE
3.1 The stated price that Buyer agrees to pay Seller for the full
performance of this Agreement is the sum of: $14,750.00
3.2 PAYMENT SCHEDULE
Deposit of $7,375.00 due upon execution of this Agreement.
Payment of $3,688.00 due February 22, 1997.
Balance of $3,688.00 due upon installation of base hardware package at
Licensee site.
Any late payment according to the terms set forth in the payment
schedule above shall be subject to a late payment charge of one and one
half percent (I 1/2%) per month, or the maximum allowed by law,
whichever is less, on the past due balance, commencing with the
payment's due date.
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4. EFFECTIVE DATE
Date 2/2/97. This is the effective date of this Agreement.
5. HARDWARE PURCHASE
5.1 DELIVERY/DELAYS
The Seller shall deliver the equipment in conjunction with the
Manufacturer's production schedule; and in any case, no later that
sixty days. Delivery shall be the date on which:
- The Equipment arrives at the Buyer's installation address, or
- The Manufacturer delivers the product to the Buyer's freight
carrier, or
- The Buyer takes possession from the Seller's freight carrier.
5.2 WARRANTIES
The equipment purchased pursuant to this Agreement is manufactured by a
vendor other than Seller, and any warranties for the equipment
specified herein shall be only as may be provided by the
vendor/manufacturer, SELLER MAKES NO WARRANTIES, EITHER EXPRESSED OR
IMPLIED, WITH RESPECT TO SUCH EQUIPMENT, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
Seller shall assign to Buyer the benefits of the vendor/manufacturer's
warranty which Seller may receive from vendor/manufacturer with respect
to such equipment. Seller will furnish Buyer with a copy of the
standard warranty which may be applicable to the machine from the
vendor/manufacturer. Seller agrees to test such equipment and process
all returns or warranty.
Seller agrees to take no action nor fail to take any action which would
make vendors/manufacturers warranty inapplicable to the Buyer unless
requested to do so by the Buyer.
5.3 EQUIPMENT ACCEPTANCE
Acceptance takes place when the Hardware has been installed and the
Operating System software has been loaded either by Buyer, or by
Seller, or by Manufacturer's Service Technician. Acceptance for
peripheral equipment, not a part of the system equipment, such as video
terminals, printers, modems, occurs when said peripheral equipment is
received by Buyer. Title to the equipment will be delivered to Buyer
upon receipt of payment in full.
5.4 DEPOSIT AND RESTOCKING FEES
Buyer recognizes that any deposit paid under this Agreement will be
withheld as down payment for equipment ordered by Seller for Buyer.
Should Buyer cancel this Agreement, any deposit refunded under this
Agreement will be subject to a deduction of a minimum of $1,500, actual
costs incurred by Seller, or 10% of the value of the equipment as per
this Agreement, whichever is the greater.
The equipment price stated herein is exclusive of all taxes, duties and
other governmental charges. The Buyer agrees to pay any and all taxes,
and other governmental charges on the equipment however designated or
levied whether or not specifically included in this Agreement.
5.6 LIMITATION OF REMEDIES
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The entire liability of Seller to Buyer, or to any third party, and the
Buyer's exclusive remedy, shall be as follows:
Seller's liability for damages to the Buyer or any third party for any
cause whatsoever, and regardless of the form of action, whether in
contract or in tort, including negligence, shall be limited to direct
and actual damages directly and solely caused by Seller's performance
or nonperformance hereunder and will not exceed the purchase price paid
by Buyer for the specific equipment that is the subject matter of, or
is directly related to, the cause of action. The measure of damages
shall not include any amounts for indirect, consequential, or punitive
damages of any party, including third parties, or for damages which
could have been avoided, and the data furnished by the equipment has
been verified before utilization thereof. In no event will Seller be
liable for any damages caused by the Buyer's failure to perform the
Buyer's responsibilities, or for any lost profits or savings or other
consequential damages, regardless of the form of action, whether in
contract or in tort, including negligence, even if Seller has been
advised of the possibility of such damages, or for any claim against
the Buyer by another party, or for any damages caused by performance or
nonperformance of the equipment.
5.7 MANUALS
Seller will provide one full set of the required primary System Manuals
as provided by manufacturer.
5.8 COMMUNICATION AND POWER WIRING
The actual installation of wiring and the associated costs are the
responsibility of the Buyer. The proper electrical service must be
available prior to the installation of the Computer. To make it
possible to do remote system maintenance, and acceptable modem must be
connected to the computer, and a voice-grade phone live for this must
be installed prior to the equipment installation. The operator must
also have access to another voice communication phone adjacent to the
System console terminal. Seller shall provide functional and technical
specifications to allow Buyer to comply with the requirements of this
section.
6. GENERAL:
6.1 DEFAULT
It is a default under this Agreement if any one or more of the
following events occur and Seller is adversely affected:
6.1.1 Buyer breaches any one or more of the covenants, terms or
conditions of this Agreement to be paid, performed, or
complied with by Buyer; or
6.1.2 Buyer becomes bankrupt or insolvent
In the event that a default on the payment terms
occur on this agreement, Seller may exercise his
rights of enforcement under the Uniform Commercial
Code in force in the State of STATE at the date of
this Security Agreement and, in conjunction with,
addition to,, or substitution for those rights, at
Seller's discretion, may
6.1.3 Section Removed
6.1.4 Enter upon Licensee's premises to take possession of,
assemble, and collect the Collateral or render it unusable.
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6.2 SECURITY INTEREST GRANTED
Licensee hereby grants a money purchase security interest in and
assigns to the Licensor the collateral described in Section 6.1.4 above
to secure payment and performance of this Agreement.
Licensee will sign and execute any financing statement or other
document or procure any document and pay all connected costs necessary
to protect the security interest of Licensee against the rights and
interests of a third party.
This security interest will be removed after has been paid in full, the
amount of which is stipulated in Section 6.1.3 above.
6.3 NOTICES
All other notices required hereunder shall be given in writing and
shall be personally delivered or sent by postage prepaid mail addressed
to the parties at their addresses first mentioned, or at such other
addresses as either party may designate to the other by notice as
provided in this Section. Notices shall be deemed effective upon their
deposit into the U.S. Mail, properly addressed and postage prepaid.
6.4 INVALID PROVISIONS
If any provision of this Agreement be invalid or unenforceable, then
the remainder of this Agreement shall not be affected thereby.
6.5 ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, letters of intent,
negotiations, representations and proposals, written or oral, requests
for proposals, or previous discussions of the parties. There have been
no other promises or inducements, oral or written, given by any party
to the other to enter into this Agreement. The parties agree that this
Agreement or any term or provision thereof shall not be modified in any
manner whatsoever without the written authorization of both parties
hereto and signed by both an authorized representative of Buyer and by
an authorized representative of Seller.
6.6 ARBITRATION
If any controversy or dispute arises out of this Agreement, or the
breach thereof, the parties will endeavor to settle such dispute
amicably. If the parties shall fail to settle any dispute, such dispute
shall be finally settled by blinding arbitration conducted in Clark
County, Washington. All arbitration shall be in accordance with the
then existing Commercial Arbitration rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof-, provided that
nothing in this Section shall prevent a party from applying to a court
of competent jurisdiction to obtain temporary relief pending resolution
of the dispute through arbitration. The parties hereby agree that
service of any notices in the course of such arbitration at their
respective addresses as provided for in this Agreement shall be valid
and sufficient. If either party seeks to enforce its rights under this
Agreement, the non-prevailing party shall pay all costs and expenses
incurred by the prevailing party.
6.7 ATTORNEY FEES
The Prevailing party in any arbitration or lawsuit concerning this
Agreement or any matter related thereto shall be entitled to any award
of reasonable attorney fees and costs from the other, including fees
incurred through trial, appeal or in bankrupt proceedings. Seller shall
be entitled to recover reasonable attorney's fees incurred with regard
to collection of payments due to repossession or disposal of
collateral, without regard to the institution of legal proceedings.
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7. AUTHORIZED SIGNATURE
This Agreement shall be binding upon Buyer and Seller only at such time
as it has been signed by an Authorized Officer of the Buyer and by an
Officer, identified below, of Seller.
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ACCEPTED BY: Summit V, Inc. IS 14, Inc.
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NAME (PLEASE PRINT) Brian W. Maggs James W. Brown
(Maxxis Group, Inc.)
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NAME (SIGNATURE) /S/ Brian W. Maggs /s/ James W. Brown
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TITLE: Executive Vice President President
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DATE: 2/10/97 2/2/97
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Summit V, Inc. Global Alliance
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(360) 256-8099 Fax January 30, 1997