Toshiba Preferred Partner Program Terms and Conditions ("Agreement")

Effective September 28, 2009

Upon written acceptance of your company’s Toshiba Preferred Partner Program Application by the Digital Products Division of Toshiba America Information Systems, Inc. ("TAIS"), your company is appointed as a non-exclusive Toshiba Preferred Partner Reseller ("Reseller"), in accordance with the following terms and conditions:

GENERAL

1. TAIS reserves the right to modify or withdraw the Toshiba Preferred Partner Program ("Program") at any time.  TAIS will notify you in writing of material changes to the Program and post a revised Agreement at this Web Site.  TAIS recommends that you check back at this Web Site on a periodic basis to review the then current Agreement. Your continuing participation in the Program ten (10) days after written notification of the Program modifications will constitute your acceptance of the Agreement as modified.
2. The term of this Agreement shall commence upon the date TAIS provides written notice (includes email notice) to Reseller of its acceptance into the Program. Each party may terminate this Agreement with or without cause upon ten (10) days prior written notice to the other. Notices to TAIS shall be provided to: Toshiba America Information Systems, Inc. Digital Products Division Attn: Preferred Partner Reseller Program 9740 Irvine Boulevard Irvine, CA 92618
3. To be eligible for participation in the Program, applicants must meet all of the following criteria: (a) Primary business must be to operate as providers of information technology products and/or services who resells personal computing devices (notebook computers, Pocket PCs, projectors, computer peripherals, servers, etc.) to end users; (b) Reseller sales location must reside in commercial office space or a retail storefront; (c) Primary transactional business structure must be face-to-face selling, rather than based primarily on electronic, Web, telephone, or other sales transactions. TAIS also reserves the right to consider additional factors, including Toshiba strategic requirements, when considering an applicant. Toshiba may approve or reject an applicant in its sole discretion.
4. To be eligible for Program benefits: (a) Reseller must sell Toshiba branded notebook computers, accessories, and service plans as set forth in Schedule B ("Eligible Toshiba Products"); sales of third party products and accessories are not eligible for benefits under the Program; (b) Eligible Toshiba Products must be purchased through a TAIS authorized distributor as set forth in Schedule C (“TAIS Authorized Distributor”); and (c) Reseller must sell Eligible Toshiba Products to eligible end users.
5. TAIS reserves the right to designate select end-user accounts that are managed by TAIS sales personnel as ineligible end users. TAIS will notify Reseller of all end-user accounts that are not eligible for Program benefits.
6. Resellers may apply to be a Campus Reseller in the Preferred Partner Program. To qualify for Campus Reseller status for the Preferred Partner Program, Reseller must be a bookstore servicing accredited two-year or four-year college or university ("Institutions"), within the United States, whose primary business is the distribution or resale of computer products to Educational End-Users (Students, Faculty, Staff, and the Institution) by means of a bookstore outlet on a university/college campus. Such a Campus Reseller must be located within one (1) mile of the Institution with which it is affiliated. From time to time, TAIS may run special programs in which only Campus Resellers are eligible.
7. Mail order/catalog resellers, retailers, brokers, and distributors are not eligible to participate in the Program.  Program eligibility and/or channel categorization shall be decided by TAIS in its sole discretion.
8. Reseller shall demonstrate commitment and dedication to the development of incremental business in Eligible Toshiba Products as well as to increasing awareness of the Toshiba brand name. Resellers may not represent Eligible Toshiba Products in a negative, misleading or deceptive manner.
9. Reseller shall comply with all federal, state and local laws and regulations governing the advertising, marketing and sale of Eligible Toshiba Products.
10. Reseller shall observe complete confidentiality of data, information, specifications, documentation, and other material (tangible or intangible) which is disclosed by TAIS to Reseller in connection with the Program and designated by TAIS as confidential (the "Confidential Information"), using the same degree of care as employed for the protection of its own proprietary and confidential information but in no event less than a reasonable degree of care. Reseller shall (i) not disclose to or otherwise permit access to the Confidential Information by any third party other than an employee of Reseller to the extent necessary in the performance of employee's duties for Reseller; and (ii) ensure that any employee of Reseller receiving access to any of the Confidential Information is advised of the confidential nature thereof. The foregoing does not apply to any information which (i) is already in the public domain or becomes available to the public through no breach of this Agreement by Reseller, (ii) was lawfully in Reseller’s possession prior to receipt from TAIS, (iii) is received independently from a third party free to lawfully disclose such information to Reseller, or (iv) is subsequently independently developed by Reseller. Reseller's obligations and TAIS’s rights under this Section shall survive any expiration or termination of this Agreement for any reason whatsoever. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that TAIS’s remedies at law for a breach by Reseller of its obligations under this Section will be inadequate and TAIS shall, in the event of any such breach, be entitled to equitable relief (including without limitation preliminary and permanent injunctive relief, specific performance, attorney fees and costs), in addition to any other remedies provided under this Agreement or available to TAIS at law.
11. Reseller shall update its business contact profiles every six (6) months. Reseller shall promptly notify TAIS in writing of changes to its business status as disclosed in Reseller’s Application for participation in the Program.
12. This Agreement involves products and/or technical data that may be controlled under the U.S. Export Administration Regulations and may be subject to the approval of the U.S. Department of Commerce prior to export. Any export, directly or indirectly, in contravention of the U.S. Export Administration Regulations is prohibited.
13. Each party shall be deemed to be an independent contractor and shall have no authority to bind the other. This Agreement shall not be deemed to create a partnership, agency, joint venture or other similar arrangement, and the employees, agents and representatives of one party shall not be deemed to be employees, agents or representatives of the other. Without limiting the foregoing, Reseller acknowledges that use of the term "Partner" in the Program name and in Program materials does not constitute or imply a partnership or any other fiduciary relationship.
14. Eligible Toshiba Products are subject to the TAIS Standard Limited Warranty accompanying the particular product, which is extended only to end users. Reseller shall have sole responsibility for any warranty it extends to an end user to the extent it differs from the TAIS Standard Limited Warranty. TAIS MAKES NO WARRANTIES OF ANY KIND TO RESELLER WITH RESPECT TO THE TOSHIBA PRODUCTS. TAIS SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE TOSHIBA PRODUCTS.
15. IN NO EVENT SHALL TAIS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES FOR ANY BREACH OR TERMINATION OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF TAIS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
16. IN NO EVENT SHALL THE LIABILITY OF TAIS, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING TO THE TOSHIBA PRODUCTS EXCEED THE PURCHASE PRICE FOR THE PRODUCT. IN NO EVENT SHALL THE LIABILITY OF TAIS, WHETHER IN WARRANTY, CONTRACT, TORT OR OTHERWISE, FOR ANY OTHER MATTER ARISING OUT OF THIS AGREEMENT EXCEED FIVE THOUSAND DOLLARS ($5,000).
17. Reseller shall defend, indemnify and hold TAIS harmless from all claims, lawsuits and liability (including attorney fees and costs) arising out of Reseller’s sales, marketing or related business activities.
18. This Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of California, without regard to its conflicts of law principles
19. This Agreement and any other agreement or program expressly incorporated herein by reference constitute the entire agreement of the parties and supersede all previous agreements, promises, representations, understandings and negotiations between the parties, whether written or oral, with respect to the subject matter hereof.
20. A waiver of any provisions of this Agreement shall not be deemed a waiver of the same or any other provisions in any other instance.
21. Reseller may not assign, transfer or sell its rights or delegate its duties under this Agreement without the prior written consent of TAIS, which may be withheld in its sole and absolute discretion, and any attempted assignment, transfer or sale without such consent shall be void.
22. TAIS is not responsible for eligible product availability, and may allocate Eligible Toshiba Products in its sole discretion.
23. TAIS reserves the right to interpret the rules of the Program in its sole discretion. All decisions made by TAIS are final.
24. This Program is only valid for Eligible Toshiba Products purchased and sold in the U.S.  TAIS and its affiliates are not responsible for any damages, taxes or expenses incurred as a result of this Program. For Resellers that have a direct contractual relationship with TAIS, all contracts and amendments with TAIS must be current and the Reseller’s account must be in good standing to qualify for Program benefits.
25. Reseller shall not use any TAIS or Toshiba trademark as part of Reseller’s name or in any manner which TAIS concludes in its sole judgment is unfair, confusing or misleading to the public. Reseller shall comply with any Program logo or trademark usage guidelines issued by TAIS in connection with the Program.
26. TAIS conducts its business in accordance with the highest professional and ethical standards. TAIS policy prohibits the solicitation or acceptance of any bribe, kickback, or gratuity by any TAIS employee in the transaction of its business. The payment of any bribe, kickback, or gratuity is not a condition for doing business with TAIS. Reseller shall report any violation of this policy to the General Counsel and to the President of TAIS at 9740 Irvine Boulevard, Irvine, California 92618.
27. Reseller is required to obtain a unique customer number from each TAIS Authorized Distributor with which it does business, and to provide those numbers as part of its Application for participation in the Program.

     

PREFERRED PARTNER PROGRAM BENEFITS

1. TIERED MEMBERSHIPS
   1. SILVER MEMBERSHIP. Silver Members (as defined in Schedule A) are not eligible to participate in the Reseller Rebate Program. All Resellers shall initially participate as a Silver Member.
   2. GOLD MEMBERSHIP. Gold Members (as defined in Schedule A) shall be eligible to participate in the Reseller Rebate Program. Gold Members shall earn benefits at the Gold Member Benefit Rate. Benefit Rates are set forth in Schedule B. Resellers that sell a minimum amount of Eligible Toshiba Products as set forth in Schedule A during a TAIS fiscal half, shall be eligible to participate in the Reseller Rebate Program as a Gold Member beginning the month following their achievement of such sales minimum and through the following TAIS fiscal half.
   3. PLATINUM MEMBERSHIP. Platinum Members (as defined in Schedule A) shall be eligible to participate in the Reseller Rebate Program. Platinum Members shall earn benefits at the Platinum Member Benefit Rate. Benefit Rates are set forth in Schedule B. Resellers that sell a minimum amount of Eligible Toshiba Products as set fourth in Schedule A during a TAIS fiscal half, shall be eligible to participate in the Reseller Rebate Program as a Platinum Member beginning the month following their achievement of such sales minimum and through the following TAIS fiscal half.
2. PAYMENT OF REBATE PROGRAM BENEFITS
1. Gold and Platinum Member Resellers will earn the stated Benefit Rate at time of purchase from a TAIS Authorized Distributor.
2. Benefits will be made available to Reseller based on the Reseller’s Program membership level.  Gold and Platinum member Resellers will receive a status confirmation letter from TAIS explaining the benefits eligibility.
3. Benefit calculation is determined by standard TAIS pricing at the time of purchase multiplied by the applicable Benefit Rate shown on Schedule B.  All Schedules are published on sell.toshiba.com.  TAIS reserves the right in its sole discretion to exclude cross sales and sales to ineligible end users when calculating Program benefits.
4. From time to time, TAIS may run special programs, which may result in an increase in rebate percentage on specific Eligible Toshiba Products.
5. No claims are required to be filed by Reseller for rebates under the Rebate Program

 

PREFERRED PARTNER PROGRAM SCHEDULES

Schedule A – Tiered Membership Levels

Silver Membership:
Preferred Partner Resellers who purchase between $-0- and $99,999.99 of Eligible Toshiba Products as described in Schedule B of the Agreement during any TAIS fiscal half.

Gold Membership:
Preferred Partner Resellers who purchase between $100,000 and $249,999.99 of Eligible Toshiba Products as described in Schedule B of the Agreement during any TAIS fiscal half.

Platinum Membership:
Preferred Partner Reseller who purchases over $250,000 of Eligible Toshiba Products as described in Schedule B of the Agreement during any TAIS fiscal half.

 

Schedule B – Benefit Rates

Platinum Membership Rebate Benefit Rate
Gold Membership Rebate Benefit Rate

 

Schedule C - TAIS Authorized Distributors

Ingram Micro
Tech Data
Synnex