Software Distribution Agreement

SOFTWARE DISTRIBUTION AGREEMENT


BETWEEN


TECH DATA CORPORATION


AND


XEROX IMAGING SYSTEMS, INC.


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SOFTWARE DISTRIBUTION AGREEMENT


THIS SOFTWARE DISTRIBUTION AGREEMENT, (Agreement) dated this 26th day of April, 1995 (the "Effective Date"), between TECH DATA CORPORATION, a Florida corporation ("Tech Data"), with its principle place of business at 5350 Tech Data Drive, Clearwater, FL 34668 and XEROX IMAGING SYSTEMS INC., a Delaware corporation ("XEROX IMAGING") with its principle place of business at 9 Centennial Drive, Peabody, MA 01960.


WITNESSETH:


WHEREAS, Tech Data desires to purchase certain Products from XEROX IMAGING from time to time; and


WHEREAS, XEROX IMAGING desires to sell certain Products to Tech Data in accordance with the terms and conditions set forth in this Agreement; and


WHEREAS, XEROX IMAGING desires to appoint Tech Data as its non-exclusive distributor to market Products within the territory defined below;


NOW, THEREFORE, in consideration of the mutual premises herein contained and other good and valuable consideration, Tech Data and XEROX IMAGING hereby agree as follows:


ARTICLE I. TERM OF AGREEMENT


1.1 Term of Agreement. During the term of this Agreement, XEROX IMAGING will
provide to Tech Data the Products set forth in Purchase Orders (as
defined herein) in accordance with the terms and conditions set forth in
this Agreement. The term of this Agreement shall commence on the
Effective Date and, unless terminated by either party as set forth in
this Agreement, shall remain in full force and effect for a term of one
(1) year, and may be renewed for successive one (1) year terms upon
written confirmation of both parties.


1.2 Definitions. The following definitions shall apply to this Agreement.


(a) "Applicable Specification" shall mean the functional
performance, operational and compatibility characteristics of a
Product agreed upon in writing by the parties or, in the absence
of an agreement, as described in applicable Documentation.


(b) "Documentation" shall mean user manuals, training materials,
product descriptions and specifications, technical manuals,
license agreements, supporting materials and other printed
information relating to the Products, whether distributed in
print, electronic, or video format, in effect as of the date of
the applicable Purchase Order and incorporated therein by
reference.


(c) "Products" shall mean, individually or collectively the
sealed software packages comprised of the computer programs
encoded on software diskettes in form generally released by XEROX
IMAGING, listed in and more fully described in Exhibit A attached
and other computers or materials that may be developed and/or
licensed and sold by XEROX IMAGING for use in connection with
computer programs.


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(d) "Update" shall mean revised versions of the Product which
include any alterations, changes, enhancements, error
corrections, modifications or other revisions to the Product
which alter or improve the Products or revisions thereof,
provided that the term "Update" shall be deemed to include only
new version of the Products which are marketed with a change to
the number or letter to the right of the decimal in the version
number (for example Version 2.1, 2.2A or 2.25)


(e) "New Release" shall mean Products marketed with a change to
the number or letter to the left of the decimal in the version
number (for example 3.0 or 4.0) or Products which have terms
appended to their name such as "II" "Plus" or the like.


(f) "Territory shall mean the United States of America and its
territories and possessions, Canada and Latin America.


(g) "Customers" of Tech Data shall include dealers, resellers,
commercial customers, value added resellers and other similar
customers, but shall not include End Users unless specifically
set forth.


(h) "End Users" shall mean final retail purchasers or licensees
who have acquired Products for their own use and not for resale,
remarketing or redistribution, unless specifically set forth in a
separate agreement.


(i) "Services" means any warranty, maintenance, advertising,
marketing or technical support and any other services performed
or to be performed by XEROX IMAGING.


1.3 License. XEROX IMAGING hereby grants to Tech Data and Tech Data accepts
a non-exclusive right and license to distribute XEROX IMAGING software
products and third party software products licensed to XEROX IMAGING for
re-distribution within the territory as herein defined, together with
any Updates and enhancements thereto (collectively referred to as
"Software"). This license includes the right to (i) order, use, posses
and distribute quantities of Software, (ii) grant a sublicense to
resellers to license Software directly to End Users; and (iii)
sublicense Software to resellers solely for the resellers use on a
demonstration unit. XEROX IMAGING reserves the right to appoint other
authorized distributors and grant other licenses. Tech Data will use its
best efforts to promote sales of the Products.


ARTICLE II. PURCHASE ORDERS


2.1 Product Availability. From time to time or at Tech Data's request, XEROX
IMAGING shall inform Tech Data of Products available from XEROX IMAGING
including, but not limited to, replacement Products, New Releases,
enhancements or versions of existing Products. XEROX IMAGING shall
notify Tech Data at least thirty (30) days prior to the date any new
Product is to be introduced and shall make such Product available to
Tech Data for distribution no later than the date it is first introduced
in the market place.


If for any reason XEROX IMAGING Imagining's production is not on
schedule, XEROX IMAGING agrees to allocate Product to Tech Data's orders
based upon a percentage equal to the same percentage as XEROX IMAGING
Imagining's like customers purchasing like volume of same Products.


2.2 Purchase Orders. Tech Data may purchase and XEROX IMAGING shall sell to
Tech Data as follows:


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(a) Purchase Orders for Product shall be placed by Tech Data
either in writing, by fax or electronically transferred or if
placed orally, shall be confirmed in writing within ten (10)
business days.


(b) Each Purchase Order may include other terms and conditions
which are consistent with the terms and conditions of this
Agreement or which are necessary to place a Purchase Order, such
as billing and shipping information, required delivery dates,
delivery locations, and the purchase price or charges for
Products, including any discounts or adjustments for special
marketing programs.


(c) A Purchase Order shall be deemed accepted by XEROX IMAGING
unless XEROX IMAGING notifies Tech Data in writing within five
(5) business days after receiving the Purchase Order that XEROX
IMAGING does not accept the Purchase Order.


(d) XEROX IMAGING shall accept Purchase Orders on C.O.D. basis
from Tech Data for additional Products which Tech Data is
contractually obligated to furnish to its customers and does not
have in its inventory upon the termination of this Agreement;
provided Tech Data notifies XEROX IMAGING of any and all such
transactions in writing within sixty (60) days of the termination
date.


(e) This agreement shall not obligate Tech Data to purchase any
Products or services except as specifically set forth in a
written Purchase Order.


2.3 Purchase Order Alterations or Cancellations. Prior to shipment of
Products, XEROX IMAGING shall accept an alteration or cancellation of a
Purchase Order in order to: (i) change a location for delivery, (ii)
modify the quantity or type of Products to be delivered or (iii) correct
typographical or clerical errors.


2.4 Evaluation or Demonstration Purchase Orders. Tech Data may issue
Purchase Orders in order to evaluate a reasonable quantity of Products
or for use as demonstration Products at no charge. After evaluation or
when such Products are no longer needed for demonstration, Tech Data
shall have the option to purchase the Products or to return such
Products to XEROX IMAGING at Tech Data's expense.


ARTICLE III. DELIVERY AND
ACCEPTANCE OF PRODUCTS


3.1 Subsidiaries. XEROX IMAGING understands and acknowledges that Tech Data
may obtain Products in accordance with this Agreement for the benefit of
subsidiaries of Tech Data. Subsidiaries of Tech Data shall be entitled
to obtain Products directly from XEROX IMAGING pursuant to this
Agreement.


3.2 Acceptance of Products. Tech Data shall, after a reasonable time to
inspect each shipment, accept each Product on the date (the "Acceptance
Date") when such Products and all necessary documentation are delivered
to Tech Data in accordance with the Purchase Order and the Product
specifications. Any Products not ordered or not otherwise in accordance
with the Purchase Order, such as mis-shipments or overshipments will be
returned to XEROX IMAGING at XEROX IMAGING Imagining's expense
(including without limitation costs of shipment or storage) and shall
promptly refund to Tech Data all monies paid in respect to such
Products. Tech Data shall not be required to accept partial shipment
unless Tech Data agrees prior to shipment.


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Tech Data shall have the ability to return for credit products which
have boxes that are or become damaged, unless such damage was caused by
Tech Data or for which Tech Data can be reimbursed by their insurance
carrier. An offsetting Purchase Order will be placed for all bad box
returns. In addition, XEROX IMAGING will supply to Tech Data, at no
charge, any and all missing material(s).


3.3 Defective Products. In the event any Products are received in a
defective condition or not in accordance with XEROX IMAGING Imagining's
applicable Specifications or the Documentation relating to such
Products, Tech Data may return the Products for full credit. Products
shall be deemed defective if the Product, or any portion of the Product,
fails to operate properly on initial "burn in", boot, or use as
applicable. Tech Data shall have the right to return any such Products
that are returned to Tech Data from its customers or End Users within
sixty (60) days of the Products' initial delivery date to the End User.


3.4 Transportation of Products. FOB Destination. XEROX IMAGING shall deliver
the Products to Tech Data at the location shown and on the delivery date
set forth in the applicable Purchase Order or as otherwise agreed upon
by the parties. Charges for transportation of the Products shall be paid
by Tech Data . XEROX IMAGING shall use only those common carriers
preapproved by Tech Data or listed in Tech Data's published routing
instructions, unless prior written approval of Tech Data is received.


Title to Products remains with XEROX IMAGING at all times. All risk of
loss or damage to the Products shall be borne by XEROX IMAGING until
delivery of such Products to the Tech Data warehouse or the location
specified in the appropriate Purchase Order.


XEROX IMAGING shall bear all costs of shipping and risk of loss of
in-warranty Products to XEROX IMAGING's location and back to Tech Data
or Tech Data's customer.


3.5 Resale of Products by Tech Data. During the term of this Agreement, Tech
Data may market, promote, distribute and resell Products to customers of
Tech Data, either directly or through its subsidiaries, in accordance
with the following terms and conditions:


(a) XEROX IMAGING shall extend to Tech Data and each customer of
Tech Data the same warranties and indemnifications, with respect
to Products purchased and resold hereunder as XEROX IMAGING
extends to its End User customers. The term of warranties and
indemnities extended by XEROX IMAGING to an End User shall
commence upon delivery of the Product to the End User.


(b) XEROX IMAGING shall make available at no charge to Tech Data
and the customers of Tech Data all technical and sales training,
technical support, marketing support, advertising material and
other services related to the Products that are currently offered
or that may be offered by XEROX IMAGING. XEROX IMAGING also
agrees to provide Tech Data a telephone support representative at
no charge during Tech Data's normal business hours.


(c) Tech Data is hereby authorized to use trademarks and trade
names of XEROX IMAGING and third parties used in connection with
the Products, advertising, promoting or distributing the
Products. Tech Data recognizes XEROX IMAGING or other third
parties may have rights or ownership of certain trademarks, trade
names and patents associated with the Products. Tech Data will
act consistently with such rights, and Tech Data shall comply
with any reasonable, written guidelines when provided by XEROX
IMAGING or third parties relating to such trademark or trade name
usage. Tech Data


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will notify XEROX IMAGING of any infringement of which Tech Data
has actual knowledge. Tech Data shall discontinue use of XEROX
IMAGING Imagines' trademarks or trade names upon termination of
this agreement, except as may be needed to sell or liquidate any
final inventories of Product.


(d) Tech Data is free to determine its own resales prices for the
Products. Although Vendor may publish suggested list prices,
these are suggestions only and Tech Data shall be free to
determine the actual resale prices at which Products will be
distributed to its resellers. No employee or representative of
XEROX IMAGING or anyone else associated or affiliated with XEROX
IMAGING has any authority to dictate to Tech Data what its resale
prices for Products must be or to inhibit in any way Tech Data's
pricing discretion with respect to such Products.


(e) XEROX IMAGING shall clearly mark each unit package with the
serial number, product description and machine readable bar code
(employing UPC or ABCD industry standard bar code). Failure to do
so shall result in Tech Data deducting one-half percent (1/2%)
from invoice to offset the resultant administrative costs to Tech
Data.


3.6 Inventory Adjustment. Open ended inventory adjustment will be accepted
during the initial six (6) months of the Agreement. After the initial
six (6) month period XEROX IMAGING agrees to accept, on a monthly basis,
a shipment of Product in sealed cartons returned by Tech Data and to
credit Tech Data's account in the amount of the net price paid by Tech
Data therefore (the "Return Credit"), provided that Tech Data places an
offsetting Purchase Order.


In addition, Tech Data shall have the right to return for full credit,
without limitation as to the dollar amount, all Products that become
obsolete, that XEROX IMAGING discontinues or are removed from XEROX
IMAGING Imagining's current price list or are upgraded; provided Tech
Data returns such Products within sixty (60) days after Tech Data
receives written notice that such Products are obsolete, discontinued or
are removed from XEROX IMAGING Imagining's price list.


3.7 Time of Performance. Time is hereby expressly made of the essence with
respect to each and every term and provision of this agreement.


ARTICLE IV. WARRANTIES,
INDEMNITIES AND ...