Sharp and User agree as follows:

I. ELECTRONIC TRANSACTIONS

1.1 User hereby agrees to place and Sharp agrees to accept inquiries for a variety of technical and administrative purposes and purchase orders for the parts, supplies and accessories stocked by the Sharp National Parts Center for the Sharp brand products for which User is authorized by Sharp to provide maintenance and or repair services using Sharp's computer software (the "Software"). (Such inquiries and purchase orders are hereinafter referred to as "Transactions".) User agrees not to order parts for products which it is not authorized to provide maintenance or repair services.

1.2 User agrees to obtain the Software from Sharp and install it on appropriate computer hardware. User agrees to bear all expenses of purchasing the hardware and use of the Software. User agrees to pay to Sharp User Fees in accordance with Sharp's User Fee rates as published from time to time.

1.3 User agrees to be bound by the Software Sub-License Agreement attached hereto as Exhibit A.

1.4 Each party agrees that all Information received by it as part of any Transaction will be kept Confidential, and the receiving party shall limit disclosure of such Information only to its employees having the need to know and shall take all reasonable steps to prevent any inadvertent or wrongful disclosure by such employees.

The parties hereto agree that information shall not be deemed Confidential and the receiving party shall have no obligation with respect to any such information which:

(i) is already known without restriction to the receiving party; or

(ii) is or becomes publicly known through no wrongful act of the receiving party; or

(iii) is received from a third party without restriction and without breach of this Agreement; or

(iv) is independently developed by the receiving party.

1.5 Each party shall properly use the security procedures provided by Sharp to ensure that all Transactions are authorized and to protect the business records and data of both parties from improper access.

II. TRANSACTION TERMS

2.1 User may, at its discretion, initiate Transactions with Sharp by electronically transmitting an inquiry or Purchase Order to Sharp in accordance with the procedures under the Parts Channel on-line software guide.

2.2 The terms and conditions of sale set forth in Exhibit B, will apply to all parts Purchase Orders electronically transmitted by User to Sharp.

2.3 Pricing terms (including without limitation discounts, rebates, reductions or allowances) on all orders are governed solely by applicable Sharp prices and pricing programs contained in the Sharp Price listing which is published from time to time.

2.4 User agrees to provide to Sharp a State Sales Tax Resale Certificate in its name for each state to which User will request shipment of goods, at least thirty (30) days prior to requesting any shipment into that state.

2.5 Purchase Orders, when indicated as accepted by Sharp in displays generated by the Software, will be non-cancelable by either party unless agreed to by both parties in writing.

2.6 User agrees to pay all invoices relating to Transactions according to the terms of the invoices.

2.7 Validity; Enforceability

(a) This Agreement has been executed by the parties to evidence their mutual intent to create binding purchase and sale obligations pursuant to the electronic transmission and receipt of certain of the applicable terms.

(b) Any purchase order transmitted pursuant to this Agreement shall be considered, in connection with any Transaction, to be a "writing" or "in writing"; and shall be deemed for all purposes to have been "signed" and to constitute an "original" when printed from electronic files or records established and maintained in the normal course of business ("Print Outs"). The parties agree not to contest the validity or enforceability of purchase order Transactions under the provisions of any applicable law relating to whether certain agreements be in writing and signed by the party to be bound thereby. Print Outs, if introduced as evidence on paper in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither party shall contest the admissibility of copies of Print Outs under either the business records exception to the hearsay rule or the best evidence rule on the basis that the Print Outs were not originated or maintained in documentary form.

III TERMINATION

3.1 Sharp may terminate this Agreement by giving User 30 days written notice in the event User shall have failed to fulfill or perform any one or more of the duties, obligations or responsibilities undertaken by it pursuant to Articles I and II hereof.

3.2 Sharp may terminate this Agreement by giving User written notice, effective immediately, in any one of the following events:

(i) if User shall continue in default of any duty, obligation or responsibility imposed on it by this Agreement, other than as provided for in paragraph 3.1 of this Agreement, for 30 days after written notice to User of such default;

(ii) any assignment or attempted assignment by User of any interest in this Agreement without Sharp's prior written consent;

(iii) any sale, transfer or relinquishment, voluntary or involuntary by operation of law or otherwise, of any substantial interest in the direct or indirect ownership of User;

(iv) if User becomes insolvent, files or has filed against it a case in bankruptcy, makes a general assignment for the benefit of its creditors or has a receiver or trustee appointed for its business or properties.

3.3 This Agreement shall terminate immediately with respect to any Parts for products as to which User is an authorized Sharp Dealer, upon termination of all dealer or Service Agreements relating to those products or any other relationship whereby Sharp sold those products to User.

3.4 In the event of termination of this Agreement:

(I) User shall promptly return to Sharp all documents, materials and tangible property supplied by Sharp and shall maintain confidential any confidential information received from Sharp which is incapable of return;

3.5 Any termination of this Agreement shall be without prejudice to any right which shall have accrued to either party hereunder prior to such termination.

 

 

IV MISCELLANEOUS

4.1 Conformity With Local Law

The rights and obligations of the parties hereto under this Agreement shall be subject to all applicable laws, orders, regulations, directions, restrictions, and limitations of the governments having jurisdiction over the parties hereto. In the event, however, that any such laws, orders, regulations, directions, restrictions or limitations or interpretation thereof, shall in the judgment of Sharp substantially alter the relationship between the parties under this Agreement, or the advantages derived from such relationship, either party may request the other party hereto to modify this Agreement, and, if within 30 days subsequent to the making of such request, the parties hereto are unable to agree upon a mutually satisfactory modification hereof, then the party giving notice may terminate this Agreement on 30 days notice to the other party, following the end of such 30-day period.

4.2 Force Majeure

Sharp shall not be liable under the provisions of this Agreement for damages on account of strikes, lockouts, accidents, fires, delays in manufacturing, delays of carriers, acts of God, governmental actions, state of war or any other causes beyond the control of Sharp, whether or not similar to those enumerated.

4.3 Assignment

Neither this Agreement nor any right hereunder or interest hereto may be assigned by either party without the prior written consent of the other party.

4.4 Notices

Unless otherwise specified herein, all notices required or permitted to be given hereunder shall be in writing and sent by mail to the principal office of the other party indicated herein or at such other address as the parties may designate in writing.

4.5 Governing Law and Arbitration

This Agreement and performance hereunder shall in all respects be governed by the laws of the State of New York. Any controversy or claim arising out of or relating to this Agreement or a breach thereof, shall be settled by arbitration in New York City, New York, in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

4.6 Entire Agreement

This Agreement supersedes and cancels any and all prior agreements between the parties hereto, express or implied, with respect to electronic transactions. This Agreement sets forth the entire agreement between the parties hereto; it may not be changed, altered or amended except in writing signed by both parties hereto.

4.7 Non-Waiver

The failure or refusal by Sharp either to insist upon the strict performance of any provision of this Agreement or to exercise any right in any one or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such failure or refusal be deemed a custom or practice contrary to such provision or right.

4.8 Exclusion of Damages

Neither party shall be liable to the other for any specific, incidental, exemplary or consequential damages resulting from or as a result of any delay, omission or error in the electronic transmission or receipt of any Transactions pursuant to this Agreement, even if either party has been advised of the possibility of such damages.

EXHIBIT A

SOFTWARE SUB-LICENSE AGREEMENT

READ BEFORE OPENING THE SOFTWARE PACKAGE. THE SOFTWARE CONTAINED THEREIN IS LICENSED IN ACCORDANCE WITH THE FOLLOWING TERMS AND CONDITIONS. OPENING THE PACKAGE INDICATES YOUR AGREEMENT TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THEM, IMMEDIATELY RETURN THE PACKAGE UNOPENED FOR A REFUND.

 

LICENSE

Sharp Electronics Corporation ("Sharp") grants you a non-exclusive, non-transferable sub-license to use the software programs, and accompanying documentation, on one computer machine. You assume the entire responsibility for the selection and installation of the enclosed software programs in order to achieve desired results.

NON-PERMITTED USES

a) You may not sub-license, assign or transfer your rights under the agreement without the prior written permission of Sharp.

b) You may not use, copy, alter or transfer, electronically or otherwise, the software programs or documentation except as expressly allowed in this agreement.

c) You may not translate. reverse program, disassemble or decompile the software programs.

TERMS

a) This sub-license agreement is effective from the date of the agreement and shall remain in force until terminated.

EXHIBIT B

SHARP ELECTRONICS CORPORATION

TERMS AND CONDITIONS OF SALE

ACCEPTANCE

THE TERMS AND CONDITIONS OF SALE CONTAINED HEREIN APPLY TO ALL QUOTATIONS MADE AND PURCHASE ORDERS ACCEPTED BY SHARP FOR THE PURCHASE AND SALE OF PARTS. SOME OF THE TERMS AND CONDITIONS SET OUT HERE MAY DIFFER FROM THOSE IN USER'S PURCHASE ORDER AND SOME MAY BE NEW. THIS ACCEPTANCE IS CONDITIONAL ON USER'S ASSENT TO THE TERMS SET OUT THERE IN LIEU OF THOSE IN USER'S PURCHASE ORDER. SHARP'S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM USER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS OF THIS ACCEPTANCE. ANY CHANGES IN THE TERMS CONTAINED HEREIN MUST SPECIFICALLY BE AGREED TO IN WRITING BY AN AUTHORIZED OFFICIAL OF SHARP BEFORE BECOMING BINDING ON EITHER SHARP OR USER. All orders must be approved and accepted by Sharp at its headquarters office in Mahwah, New Jersey.

PAYMENT

Unless otherwise set forth on the face hereof payment terms are net 30 days from date of invoice with interest on all unpaid amounts at the rate of 1.5% per month or the highest lawful rate, whichever is less. Sharp reserves a purchase money security interest in the Parts delivered until all of Sharp's claims have been paid. Sharp may change these credit terms if User's financial condition changes. Each shipment shall be considered a separate and independent transaction.

DELIVERY

Delivery will be f.o.b. Sharp's location and will occur when the Parts are ready for pickup by the carrier. Sharp will select a carrier. Sharp does not assume any liability for the shipment. Delivery dates set forth in confirmations are estimates only. Sharp will use its best efforts to deliver in accordance with these dates but will not be responsible for failure to deliver as estimated.

INSPECTION

Within 10 days after delivery User will inspect the order and give written notice of rejection to Sharp detailing the reason for rejection. Prior to returning parts a written Return Authorization (RA) must be obtained from Sharp. Shipments received without an RA will be returned. All requests will be reviewed on a case by case basis. Return Authorizations will be issued at Sharp's discretion. A restocking charge will be applied to all returns not resulting from a Sharp error. A copy of your invoice or packing slip, list of part numbers, description, and quantity must be mailed or sent via facsimile to:

SHARP ELECTRONICS CORPORATION

1300 Naperville Drive

Romeoville, IL 60446

ATTN: National Parts Center, General Manager

FACSIMILE #: (630) 759-2855

(630) 759-6327

Upon receiving authorization and shipping instructions from Sharp, User may return rejected Parts. If User retains the Parts after their delivery without giving Sharp such notice within the designated period, User will be deemed to have irrevocably accepted the Parts.

PATENTS AND COPYRIGHTS

If notified promptly in writing of any action (and all prior related claims) brought against User alleging that User's use of the Parts infringes a United States patent or copyright, Sharp will defend that action at is expense and will pay the costs and damages awarded against User in the action, provided that Sharp shall have sole control of the defense and all negotiations for settlement or compromise. If a final injunction is obtained in such action against User's use of the Parts or if in Sharp's opinion the Parts are likely to become the subject of a claim of infringement, Sharp will at its option and expense either procure for User the right to continue using the Parts, replace or modify the Parts so that they become non-infringing or grant User a credit for the infringing Part and accept their return. Sharp will not have any liability to user if the alleged infringement is based upon use or sale of the Parts in combination with other products or devices which are not made by Sharp or use of the Parts for other than their intended purpose.

User will defend and hold Sharp harmless against any expense, judgment or loss for alleged infringement of any patents, copyrights or trade marks which result from compliance with User's designs, specifications or instructions. No costs or expenses shall be incurred for the account of Sharp without its prior written consent. Sharp's total liability to User as a result of compliance with this provision will not exceed the sum paid to Sharp by User for the allegedly infringing Parts. The foregoing states the entire liability of Sharp for alleged infringement of patents and copyrights by the Parts, any part of them or by their operation.

CANCELLATION AND RESCHEDULING

Sharp may cancel this order or any portion in the event of User's default or a material adverse change in User's financial condition without affecting Sharp's rights and remedies.

CONTINGENCIES

Sharp shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Sharp's reasonable control. Examples of such causes are acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Sharp may defer delivery for a period equal to the delay caused by such contingency in the event of shortages for any reason whatsoever. (Sharp may allocate available inventory among its customers.)

LIMITATION OF LIABILITY

Liability of Sharp to User, if any, under this contract for breach of contract or warranty, negligence or otherwise shall in no event exceed the total contract price specified herein less the purchase price of any items delivered and accepted hereunder. In no event shall Sharp be liable to User or others for special, incidental or consequential damages for breach of any of the provisions of this contract, including without limitation, provisions regarding warranties, guaranties, indemnities and patent infringement, or based upon any claims, demands, settlements, or lawsuits arising from, or in connection with, the Parts sold hereunder, such damages including, but not limited to, costs of removal and reinstallation of items, loss of goodwill, loss of profits, or loss of use. User assumes all liability for any and all damages arising from or in connection with, the use or misuse of the Parts by User, it employees, or others.

 

Message Center Communications Guidelines

A. Violations--Amendment to the Electronic Transaction Agreement

Sharp Electronics Corporation reserves the right, but does not assume the responsibility, to restrict communication which Sharp Electronics Corporation deems in its discretion to be harmful to users or in violation of Sharp Electronics Corporation's or any third-party rights. Please be aware, however, that communication over SharpNet may occur in real-time, or is posted on one of the SharpNet's message boards or libraries, and Sharp Electronics Corporation may choose not to screen communication in advance. You may contact Sharp's staff about any violation by emailing the WebMaster using the Message Center.

Any conduct by you that in Sharp Electronics Corporation's discretion restricts or inhibits any other user from using SharpNet will not be permitted and may result in your account being denied access to the Message Center. You agree to use SharpNet only for lawful purposes.

You may not post or use SharpNet to:

1) harass, threaten, embarrass or cause distress, unwanted attention or discomfort upon another user of SharpNet,

2) post content which is deemed by Sharp Electronics Corporation to be offensive,

3) transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable content,

4) impersonate any person, including but not limited to, a Sharp Electronics Corporation official, or communicate under a false name or a name that you are not entitled or authorized to use,

5) disrupt the normal flow of dialogue in a Forum or otherwise act in a manner that negatively affects other users, individuals or entities,

6) post or transmit chain letters or pyramid schemes,

7) post or transmit any unsolicited advertising, promotional materials, or other forms of solicitation to other users, except in those areas (e.g., Buy&Sell Forum) that are designated for such a purpose,

8) solicit employees of other Dealerships / Service centers, or

9) intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law.

HARRASSMENT

When a user targets another individual or entity to cause distress, embarrassment, unwanted attention, or other discomfort, this is harassment. Sharp Electronics Corporation does not condone harassment in any form and may suspend or terminate the accounts of any user who harasses others. Personal attacks, or attacks based on a persons race, national origin, ethnicity, religion, gender, sexual orientation, disablement or other such affiliation, are prohibited. If you have a disagreement with someone's point of view, address the subject, not the person.

IMPERSONATION

This can involve the portrayal of another person or entity, such as the impersonation of Sharp Electronics Corporation staff, or communication under a false name or a name that you are not authorized to use. Members must avoid the portrayal of Sharp Electronics Corporation personnel or others persons in all forms of online communication, including, but not limited to, message author names, message dialogue and message postings.

ADVERTISING AND SOLICITATION

You may not use SharpNet to post unsolicited advertising, promotional material, or other forms of solicitation to other users except in those specified areas that are designated for such a purpose (e.g., The Buy&Sell Forum). Soliciting the employees or staff of another dealership or Service Station is specifically prohibited. If you witness remarks in a Forum that violates SharpNet Rules, you may contact Sharp by emailing the WebMaster using the Message Center.

B. Disclaimers-Amendment to the Electronic Transaction Agreement

INTELLECTUAL PROPERTY:

You agree that you will not transmit any Content to SharpNet that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party. By submitting Content to any area of SharpNet, you automatically grant -- or warrant that the owner of such Content has expressly granted -- Sharp the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any Rights that may exist in such Content.CONTENT:

You and any user of your Service Account must evaluate, and bear the risk associated with, the accuracy, completeness or usefulness of any Content. Sharp shall not be responsible for any Content. Sharp may not prescreen or monitor all Content as a matter of policy, but Sharp shall have the right, but not the responsibility, to remove Content which is deemed in Sharp's sole discretion harmful, offensive, or otherwise in violation of any policies and procedures Sharp has in place at the time. Sharp may elect at its sole discretion to monitor some, all, or no areas of SharpNet for adherence to Sharp's rules.

DISCLAIMER OF WARRANTIES:

YOU UNDERSTAND AND AGREE THAT ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF SHARPNET IS DONE AT YOUR OWN DISCRETION AD RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT.

C. Suggestions for proper interaction in the Message Center

READ BEFORE PARTICIPATING

It's best to browse a Forum for a while -- just reading -- before you post your first message. Read a couple week's worth of messages the first time you visit a Forum, and then read new messages for another couple of days. You'll see what topics are hot and which are cold, you'll get to know some of the key participants, and you'll become familiar with the demeanor of the board. Each one is different.

COMMUNICATE CLEARLY

Write clearly when you compose a message. Review your message carefully before clicking the Submit button; typos are confusing. Remember, if your message can be misunderstood, it will be.

REFRAIN FROM ALL CAPS

Typing in all capital letters is frowned upon; it's the equivalent of screaming at everyone. It also makes your message more difficult to read.

NO "ME TOO'S"

"Me too" messages are a quick way to irritate other users. If you agree with a posting, either enjoy your consent by yourself or reply with an informative comment about why you agree. Imagine how dull a Forum would get if it contained hundreds of "me too's."

REFRAIN FROM CROSS-POSTING

Cross-posting means posting a single message to several different Forums, and it is almost never appropriate. Such posts tend to reduce the quality of the discussion and needlessly increase the traffic in the Forum. Find the best place for your post, and please confine your message to one Forum.