EX-10.20 3 dex1020.htm DISTRIBUTOR AGREEMENT CONFIDENTIAL TREATMENT REQUESTED MAXLINEAR, INC. DISTRIBUTOR AGREEMENT
EXHIBIT 10.20
CONFIDENTIAL TREATMENT REQUESTED
MAXLINEAR, INC.
This Distributor Agreement is entered into as of August 12, 2009 (the “Effective Date”) by MaxLinear, Inc., a Delaware corporation with its principal place of business at 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 (“MaxLinear”), and Xxxxxxx International Limited, a Hong Kong corporation with its principal place of business Room 1001, 10/F., Xxxxxxxxx Xxxxxxxxxx Xxxxxx, 0 Xxxx Xxx Xxxx, Xxxxxxx Xxx, Xxxx Xxxx (“Distributor”). The parties agree as follows:
1.1 “End User” means any third party that acquires a Product for its own use, but not for resale.
1.2 “Product” means a MaxLinear product identified in Exhibit A.
1.3 “Territory” means the geographic territory identified in Exhibit A.
2. APPOINTMENT AND GENERAL OBLIGATIONS
2.3 Advertising and Marketing Practices. Distributor will obtain prior written consent by MaxLinear before advertising or marketing the Products. Distributor will always: (a) identify a Product as being provided directly by MaxLinear; (b) not engage in any deceptive, misleading, illegal, or unethical practices; (c) not make any representations, warranties, or guarantees concerning the Products that are inconsistent with or in addition to those made by MaxLinear in this Agreement; (d) comply with all applicable federal, state, and local laws and regulations; and (e) comply with Section 7 when using any materials to advertise or market the Products. Distributor will indemnify, defend, and hold MaxLinear harmless from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts’ fees and expenses, that MaxLinear may incur as the result of any action brought against MaxLinear and arising out of the acts of Distributor or its agents in breach of this Section 2.3.
3.5 Fulfillment of Orders. MaxLinear will use commercially reasonable efforts to fill all orders by Distributor promptly upon acceptance by MaxLinear. MaxLinear will not be liable for any failure to deliver Products by any particular date.
*** | Indicates that confidential treatment has been sought for this information. |
3.8 Product Discontinuation. MaxLinear will notify Distributor prior to discontinuing any Product. Distributor will cooperate with MaxLinear in distributing Product Discontinuation notices to affected End Users, Distributor will be given three months to place final orders (“Last Order Period”) for the Products and an additional three months to take delivery of the Products. Orders for discontinued Products are non-cancellable and non-rescheduleable unless agreed to by MaxLinear in writing. MaxLinear may impose additional restrictions on orders for discontinued Products by providing Distributor with written notice of the terms at the time of the order.
government authorities as required by those laws and regulations. Distributor will indemnify, to the fullest extent permitted by law, MaxLinear from and against any fines or penalties that may arise as a result of Distributors breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
4.2 Inspection. Distributor will examine, or cause to be examined, all Products shipped by MaxLinear promptly upon receipt, and immediately file, or cause to be filed, a claim with the carrier upon delivery for any damage to or shortage in the Products, and notify MaxLinear within 14 days after receipt of the Products of any claim.
4.3 Non-competition. Distributor must notify MaxLinear in writing before adding additional product lines other than those handled by the Distributor as of the Effective Date, or whenever its relationship is terminated with any other manufacturer which it represents as of the Effective Date. Distributor will not, without the prior written consent of MaxLinear, sell or solicit orders for any products which compete with the Products, as determined solely by MaxLinear.
4.4 Location. Distributor will stock and resell the Products only through its places of business located within the Territory. Distributor will provide MaxLinear with a list of its places of business within the Territory and agrees that it will not move such places of business to any new or different location without the prior written consent of MaxLinear. Distributor will not stock or resell any Products from any unauthorized location or into any unauthorized location.
5. PRICING, PAYMENTS, AND REPORTING
5.1 Pricing. For all accepted Product orders, Distributor will pay to MaxLinear the then-current Distributor Price List less the commission specified in Exhibit A. For example, if the list price is $[***] and the commission rate is [***]%, then Distributor’s price will $[***].
5.2 Price Protection. If MaxLinear reduces the list price for a Product, MaxLinear will provide Distributor with a nonrefundable credit equal to the quantity of the Product in Distributor’s inventory (and for which Distributor has already paid MaxLinear) multiplied by the difference between (a) the price previously paid by Distributor for each Product unit in its inventory and (b) MaxLinear’s new list price for the Product.
5.3 Reduced Prices. MaxLinear may approve the sale of Products to End Users at a discount. If approved, the Products will be shipped and invoiced at standard prices, and then a credit will then be given through a debit memo. All approved price reductions must be supported by an official quotation by MaxLinear with a MaxLinear generated quote number. All credits will accrue during a calendar month. MaxLinear will issue to Distributor a debit memo for the total monthly credit, if any, within 30 days.
5.4 Price Increases. MaxLinear may increase the price of Products for purchase orders that have been placed but not shipped.
5.5 Payment. Except as otherwise agreed to by the parties in writing, MaxLinear will submit an appropriate invoice to Distributor following acceptance of each order. Distributor will pay the amount stated in the invoice within 30 days of the date of the invoice.
5.6 Currency and Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Distributor will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by MaxLinear to collect any amount that is not paid when due. MaxLinear may accept any check or payment in any amount without prejudice to MaxLinear’s right to recover the balance of the amount due or to pursue
***Indicates that confidential treatment has been sought for this information.
any other right or remedy. Amounts due from Distributor under this Agreement may not be withheld or offset by Distributor against amounts due to Distributor for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Distributor will pay all such amounts in United States dollars.
5.7 Taxes. Other than federal and state net income taxes imposed on MaxLinear by the United States, Distributor will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Distributor will pay any additional taxes as are necessary to ensure that the net amounts received by MaxLinear after all such taxes are paid are equal to the amounts which MaxLinear would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5.8 Obligation to Pay. Distributor bears sole responsibility to pay for accepted orders for Products regardless of any non-payment by an End User.
5.9 Credit Terms. MaxLinear may, after notice to Distributor, alter any payment terms if, in its sole judgment, any condition or conduct of Distributor’s business requires it, including requiring payment prior to any shipment of Products, whether or not ordered before the date of the notice. Payment prior to shipment of Product may take the form of an irrevocable letter of credit issued or confirmed by a bank acceptable to MaxLinear and must be payable at sight upon presentation of invoice in the currency specified by MaxLinear. A required letter of credit must be valid for a minimum of 90 days beyond the latest scheduled MaxLinear shipping date for the applicable purchase and will be reissued in appropriate form if the amount of the purchase or its scheduled delivery is changed.
5.10 Records. During the term of this Agreement and for three years after, Distributor will maintain at its primary place of business full, true, and accurate books of account (kept in accordance with generally accepted accounting principles) and records concerning all transactions and activities under this Agreement. Such books and records will include and record, without limitation, all data that Distributor is required to provide with respect to Product purchases and support (including End User contact information).
5.11 Audit. In order to verify statements issued by Distributor and Distributor’s compliance with the terms of this Agreement, MaxLinear or its designee may, upon two business days notice to Distributor, audit Distributor’s books of account and records, to which Distributor will provide reasonable access. Any such audit will be conducted at Distributor’s office during normal business hours and so as not to interfere unreasonably with Distributor’s business activities. If an audit reveals that the Distributor has underpaid fees due to MaxLinear, MaxLinear will invoice Distributor for such underpaid amounts based on MaxLinear’s then-current price list, with the invoice subject to the general payment terms of this Agreement. If the underpaid fees exceed 5% of the fees due to MaxLinear for the relevant period, then Distributor will pay the reasonable expenses associated with such audit. Audits will not be made more frequently than once per calendar year unless the immediately preceding audit discloses material discrepancies.
6.5 Effects of Termination or Expiration
(a) Distributor may resell the Products for which orders have been accepted by MaxLinear as of the date of termination or expiration, unless this Agreement was terminated by MaxLinear under Section 6.3, in which case Distributor will not have any post-termination resale rights.
(b) MaxLinear may, but is not obligated to, supply Products to meet Distributor’s End User backlog at termination. MaxLinear will only accept C.O.D. orders after termination.
(c) At MaxLinear’s sole discretion, MaxLinear may purchase Distributor’s inventory of standard Product at cost within 30 days of termination, unless the Agreement was terminated by Distributor. MaxLinear will notify Distributor in writing of any restocking charge for the Product.
(d) Distributor and MaxLinear will continue to provide technical support in accordance with Section 2.6 to End Users that purchased Products before termination or expiration of this Agreement.
(e) Within 14 days of expiration or termination or this Agreement, Distributor will provide MaxLinear with information with regard to status and number of existing commitments to supply the Products to third parties that have not been ordered.
(f) In addition, the following provisions will survive any expiration or termination of this Agreement: Sections 4, 6.5, 8.1, 9.3, 13, and 15. The termination or expiration of this Agreement will not relieve Distributor of (i) the obligation to pay any fees that are due to MaxLinear under this Agreement and (ii) Distributor’s obligation to indemnify MaxLinear as specified in this Agreement.
7. MAXLINEAR NAME AND TRADEMARK USAGE
7.1 Use of Company Names. MaxLinear may identify Distributor in MaxLinear advertising and marketing materials as a Distributor of the Products. MaxLinear will not use any Distributor trademarks to identify Distributor without Distributor’s prior written approval. Distributor may identify MaxLinear as the supplier of the Products in Distributor’s advertising and marketing materials if such materials are approved in writing in advance by MaxLinear, which approval will not be unreasonably withheld.
7.2 MaxLinear Trademarks. Subject to the provisions of this Section 7, during the term of this Agreement, Distributor will have the right to advertise the Products with MaxLinear Trademarks, trade names, service marks, and logos of MaxLinear (“MaxLinear Trademarks”), subject to MaxLinear’s prior inspection and written approval of all materials bearing MaxLinear Trademarks. All representations of MaxLinear Trademarks that Distributor intends to use will first be submitted to MaxLinear for approval (which will not be unreasonably withheld) of design, color, and other details, or will be exact copies of those used by MaxLinear. Distributor will fully comply with all guidelines, if any, communicated by MaxLinear concerning the use of MaxLinear Trademarks. MaxLinear may modify any of MaxLinear Trademarks, or substitute an alternative xxxx for any of MaxLinear Trademarks, upon 30 days prior notice to Distributor.
7.3 Use of MaxLinear Trademarks. Distributor will not alter or remove any of MaxLinear Trademarks affixed to or otherwise contained on or within the Products. Except as set forth in this Section 7, nothing
contained in this Agreement will grant or will be deemed to grant to Distributor any right, title, or interest in or to MaxLinear Trademarks. All uses of MaxLinear Trademarks and related goodwill will inure solely to MaxLinear and Distributor will obtain no rights or goodwill with respect to any of MaxLinear Trademarks, other than as expressly set forth in this Agreement, and Distributor irrevocably assigns to MaxLinear all such right, title, interest, and good will, if any, in any of MaxLinear Trademarks. At no time during or after the term of this Agreement will Distributor challenge or assist others to challenge MaxLinear Trademarks (except to the extent expressly required by applicable law) or the registration thereof or attempt to register any of MaxLinear Trademarks or marks or trade names that are confusingly similar to those of MaxLinear. Upon termination of this Agreement, Distributor will immediately cease to use all MaxLinear Trademarks and any listing by Distributor of MaxLinear’s name in any telephone book, directory, public record, or elsewhere, must be removed by Distributor as soon as possible, but in any event not later than the subsequent issue of such publication.
7.4 Registered User Agreements. MaxLinear and Distributor will enter into registered user agreements with respect to MaxLinear Trademarks pursuant to applicable trademark law requirements in the country in which a Product is resold. Distributor will be responsible for proper filing of the registered user agreement with government authorities worldwide and will pay all costs or fees associated with such filing.
8. PROPRIETARY RIGHTS AND NOTICES
8.1 Proprietary Rights. MaxLinear will own all right, title, and interest in and to the Products. Distributor will not act to jeopardize, limit, or interfere in any manner with MaxLinear’s ownership of and rights with respect to the Products. Distributor will have only those rights in or to the Products and documentation granted to it pursuant to this Agreement. The title to any software or firmware embedded in or provided with the Products will at all times remain vested in MaxLinear. Subject to the terms of this Agreement, MaxLinear hereby grants Distributor a limited, non-transferable, revocable license to use such software and firmware solely in connection with the sale of the Products during the term of this Agreement. End Users and other Product purchasers will obtain a license to use software and firmware directly from MaxLinear.
9. LIMITED WARRANTY AND DISCLAIMER
(a) MaxLinear warrants to Distributor that each Product will be free from defects in design, materials, or manufacture that cause the Product to not conform to its published technical specifications for one year from the date of delivery to Distributor.
(b) If Distributor believes, after reasonable investigation, that a Product failure is covered by the warranty in Section 9.2(a), Distributor may contact MaxLinear’s warranty support center by telephone during regular business hours. Distributor must provide sufficient information to enable MaxLinear support personnel to determine the cause of the failure. MaxLinear may require Distributor to return the Product in accordance with Section 9.2(d) for further evaluation.
(c) If MaxLinear support personnel determine in their reasonable discretion that MaxLinear’s Product failure is covered by the warranty in Section 9.2(a), MaxLinear will, at its option and in accordance with this Section 9.2, (i) repair the Product; (ii) replace the Product; or (iii) issue a credit for the amount paid by Distributor for the Product upon return of the Product.
(d) If a Product is to be returned to MaxLinear, Distributor will, at its expense, return the Product in accordance with MaxLinear’s instructions, including first obtaining an RMA number in accordance with Section 3.11. If MaxLinear reasonably determines that a returned Product conforms to the warranty in Section 9.2(a), MaxLinear will invoice Distributor for, and Distributor will pay for, MaxLinear’s costs to return the Product to Distributor. If MaxLinear reasonably confirms that a returned Product does not conform to the warranty in Section 9.2(a), then MaxLinear will, at its option, at no additional cost to Distributor, (i) deliver a repaired or replacement Product to Distributor within a reasonable period or issue a credit for the amount paid by Distributor for the Product; and (ii) issue a credit for Distributor’s reasonable out-of-pocket expenses actually incurred to return the Product to MaxLinear.
(e) All Products repaired or replaced under the warranty will be warranted for the remainder of the warranty period.
(f) The warranty and remedies set forth in this Section 9.2 will not apply to (i) any samples, prototypes, pre-production xxxx Product, software, or board level products; (ii) any alterations or modifications of, or additions to, the Products made by parties other than MaxLinear; (iii) use of the Products in a manner for which they were not designed or other than as specified in the applicable technical specifications; (iv) the combination, use, or interconnection of the Products with other products not supplied or not approved by MaxLinear; (v) abnormal usage or misuse of the Products; or (vi) Distributor’s or a third party’s negligence. If MaxLinear determines that any warranty claim reported by Distributor falls within any of the foregoing exceptions, Distributor will pay MaxLinear for its services at MaxLinear’s time and materials rates then in effect.
(g) This Section 9.2 sets forth Distributor’s exclusive remedy, and MaxLinear’s entire liability in contract, tort, or otherwise for any breach of warranty for any Product sold by MaxLinear to Distributor.
10. INFRINGEMENT INDEMNIFICATION
10.1 Defense of Claims. MaxLinear will, at its option and expense, defend Distributor and its officers, employees, directors, agents, and representatives (“Distributor Indemnified Parties”) from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against a Distributor Indemnified Party alleging that Distributor’s authorized resale of a Product infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right if: (a) the Distributor Indemnified Party gives MaxLinear prompt written notice of the Claim; (b) MaxLinear has full and complete control over the defense and settlement of such Claim; (c) the Distributor Indemnified Parties provide assistance, at MaxLinear’s expense as specified in Section 10.2, in connection with the defense and settlement of such Claim as MaxLinear may reasonably request; and (d) the Distributor Indemnified Parties comply with any settlement or court order made in connection with such Claim (e.g., relating to the future use, sale, or distribution of any infringing Products). The Distributor Indemnified Parties will not defend or settle any such Claim without MaxLinear’s prior written consent. The applicable Distributor Indemnified Party will
have the right to participate in the defense of such Claim at its own expense and with counsel of its own choosing, but MaxLinear will have sole control over the defense and settlement of the Claim.
11. DISTRIBUTOR INDEMNIFICATION
13.1 “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that is in tangible form and is marked as “Confidential”, “Proprietary”, or with some similar legend. The MaxLinear Products and related information will be the Confidential Information of MaxLinear. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MAXLINEAR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT
LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY DISTRIBUTOR TO MAXLINEAR DURING THE PREVIOUS 12 MONTHS. UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
14.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MAXLINEAR TO DISTRIBUTOR AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
To Distributor: |
Xxxxxxx International Ltd. |
Rm. 1001, Xxxxxxxxx Commercial Centre |
0 Xxxx Xxx Xxxx, Xxxxxxx Xxx, XX |
Attn: Xx. Xxxxx Xxxx |
To MaxLinear: |
MaxLinear, Inc. |
ATTN: |
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 U.S.A.
ATTN: Xxxxx Xxxxxxxx, Esq.
15.5 Force Majeure. MaxLinear will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond MaxLinear’s reasonable control, so long as MaxLinear uses commercially reasonable efforts to avoid or remove such causes of non-performance.
15.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A. without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
15.8 Arbitration. If there is a dispute between the parties under this Agreement, the parties will agree upon and appoint one arbitrator no later than 20 days after the notice of arbitration is received. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the American Arbitration Association (AAA) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator will have at least 15 years of appropriate experience in the semiconductor industry and be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA. The arbitration will be held in San Diego County, California. The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision will be final and binding on both parties. The costs and expenses of the arbitration will be shared equally by both parties. This Section 15.8 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
conditions of any Distributor purchase order, acknowledgement or other business form that Distributor may use in connection with this Agreement shall have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of MaxLinear to object to such terms, provisions or conditions.
govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of MaxLinear has any authority to bind MaxLinear with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
“MaxLinear” | “Distributor” | |||||
MaxLinear, Inc. | Xxxxxxx International Ltd. | |||||
Name: | Name: | Xxxxx Xxxx | ||||
Title: | Title: | President | ||||
Signature: | Signature: | /s/ Xxxxx Xxxx | ||||
Date: | Date: | August 17, 2009 |
EXHIBIT A
BUSINESS TERMS
1. | Territory. Distributor is authorized to market and resell Products in the following countries: |
China and Taiwan
(a) | Products. Distributor is authorized to resell the following MaxLinear Products: |
MxL5007T, MxL135RF, MxL201RF, MxL203RF, MxL101SF, MxL111SF, MxL241SF.
2. | Minimum Required Inventory. MaxLinear will require Distributor to carry a minimum Required Inventory (“RI”) level on a rolling basis as determined by the following formulas: |
RI = Current Month Demand (“CMD”). By the first of each month, Distributor is required to have 100% of Current Month Demand as determined by MaxLinear forecast
If Additional Weeks (“AW”) of inventory are required by MaxLinear on any Product lines,
[***],
(Where: NMD = Next Month Demand as determined by MaxLinear monthly forecast, and AW = Number of additional weeks required by MaxLinear)
The number of Additional Weeks of inventory for specified Products will be as notified in writing by MaxLinear from time to time. MaxLinear will not require more than [***] Additional Weeks of inventory without written agreement by both Parties.
As a basis of calculation for RI, MaxLinear will provide Distributor a Left To Book (“LTB”) report of the monthly RI for review. The LTB report will factor the then-current MaxLinear forecast, MaxLinear lead time, Distributor inventory, Distributor backlog and the appropriate RI formula as outlined above. Distributor will have five days from receipt of the LTB Report to note any exceptions and 10 days from receipt to issue Purchase Orders covering any left-to-book demand as provided for in the LTB report.
3. | Commission |
MaxLinear will pay a base commission of [***]% for logistics and fulfillment support provided that Distributor maintains the required CMD inventory as determined by Maxlinear monthly forecast and places orders for such inventory at MaxLinear standard lead time. MaxLinear reserves the right to reduce the base commission by [***]% for any period where orders are not placed at published lead times.
MaxLinear will pay an additional [***]% commission for each additional week of inventory required on Products as notified in writing by MaxLinear. Additional commission rate will become effective when the target inventory is achieved, excluding new orders when the number of Additional Weeks is reduced.
For registered new business opportunities developed and supported by the Distributor per the terms of the New Opportunity Registration Program outlined below, MaxLinear will pay additional commission for each new Opportunity according to the following schedule:
Specification Credit | Design Credit | |||
First US $[***]: | [***]% | [***]% | ||
Next US $[***]: | [***]% | [***]% | ||
Table1. |
4. | New Opportunity Registration Program |
Bonus commission will be paid for the successful development and support of registered New Business Opportunities. To qualify, the Distributor must meet the following terms:
New Business Opportunities are defined as new End User or new Products designed into existing End Users. New Business Opportunities must be registered to qualify. The first Distributor to qualify for registration by meeting all Registration Qualification Requirements will qualify for credit and support from MaxLinear.
***Indicates that confidential treatment has been sought for this information.
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5. | Registration Qualification Requirements: |
For each New Business Opportunity, Distributor must:
• | Accurately complete MaxLinear New Opportunity Form. |
• | Adequately qualify each new opportunity to the satisfaction of the MaxLinear Account Manager |
• | Provide Bi-Weekly Sales Activity Reports for each registered opportunity in a format satisfactory to the MaxLinear Account Manager. Sales Activity Reports shall at a minimum include; |
¡ | Opportunity status, next steps and action items |
¡ | Updated program schedule of key milestones |
• | Provide “Tier 1” technical and sales support |
• | Provide post sales support. |
Subject to the requirements listed above, Distributor will receive written confirmation of registration of each New Business Opportunity. MaxLinear’s Account Manager may disqualify registration based on lack of progress or adherence to the above requirements at any time.
Based on the support level and influence actually provided by the Distributor, MaxLinear, at its sole discretion, will grant Distributor Specification Credit or Design Credit for each New Business Opportunity. The granting of credits is for the purposes of determining the commission rate for new business opportunities per Table 1. above.
Specification Credit is earned if Distributor is the primary source of influence over the customer’s decision to select a MaxLinear component in the component selection process.
Design Credit is earned if the Distributor is the primary source of Tier 1 technical and sales support throughout the design in process.
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EXHIBIT B
TECHNICAL SUPPORT FOR END USERS
MAXLINEAR TECHNICAL CONTACT | DISTRIBUTOR TECHNICAL CONTACT | |
Name: | Name: | |
Address: | Address: | |
Phone: | Phone: | |
Fax: | Fax: | |
Email: | Email: |
1. Support Tiers
(a) Tier I Support: Tier I Support consists of providing End Users with telephone, email, and on-site support.
(b) Tier II Support: Tier II Support consists of consultation with Tier I support personnel regarding issues that are beyond their scope of expertise and performing warranty troubleshooting and repair.
2. Distributor Support Responsibilities. Distributor, or its designee, will be solely responsible for providing Tier I Support relating to the Products to End Users. Under no circumstances will Distributor facilitate, instruct, or encourage its End Users to contact MaxLinear directly. Distributor’s support responsibilities must be performed by personnel who have completed training programs specified by MaxLinear. Notwithstanding such training, Distributor is fully responsible for the product knowledge and technical support skills of its personnel. Distributor will promptly return calls for support and other services related to the Products, and will otherwise use all commercially reasonable efforts to assist End Users to resolve any questions concerning the Products. Distributor will perform all initial troubleshooting before escalating to MaxLinear’s Tier II Support group. Distributor will distribute maintenance releases and error corrections only to End Users that have paid for Support services.
3. MaxLinear Support Responsibilities. MaxLinear, or its designee, will be responsible for providing Tier II Support relating to the Products to Distributor or its designee during MaxLinear’s standard hours for support and maintenance. MaxLinear’s support responsibilities do not include consultation with Distributor’s End Users. Any additional support related to Products requested by Distributor will be provided at MaxLinear’s sole discretion and may be charged to Distributor at then-current time and materials rate. MaxLinear reserves the right to provide support and maintenance services directly to End Users under a separate agreement.
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