EXHIBIT 10.9
Agreement No._________
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Revenue Stamp
(Yen)4000
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Note: Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment filed with the SEC under Rule 406. The omitted
confidential material has been confidentially submitted separately with the SEC.
Basic Agreement on Continual Sale and Purchase of Goods
(Translation)
October 1, 1999
Seller:
Trend Micro Incorporated
Odakyu Southern Tower 10F
2-2-1 Yoyogi
Shibuya-ku, Tokyo
Representative Director
Xxxxx Xxxx Jang
Buyer:
SOFTBANK COMMERCE CORP.
00-0 Xxxxxxxxxx-Xxxxxxxx-xxx
Xxxx-xx, Xxxxx
Representative Director
Xxx Xxxxxxxx
This Agreement is entered by and between Trend Micro Incorporated (the
"Seller") and SOFTBANK COMMERCE CORP. (the "Buyer" or, collectively with the
Seller, the "Parties"), concerning continual sale and purchase of goods between
the Parties.
1. Scope of the Agreement
1.1 Any matter provided herein shall be equally applicable to any and all
Sale and Purchase Agreements to be executed between the Parties during
the term of this Agreement pursuant to Article 5 hereof ("Individual
Agreement").
1.2 Upon execution of the Agreement, any previous agreements entered
between the Parties concerning the Buyer's placement of orders for
goods with the Seller ("Old Agreements"), such as "Basic Agreement on
Continual Purchase and Sale of Goods", shall lose effect in their
entirety.
1.3 This Agreement shall apply to the rights and obligations relating to
the Individual Agreement that have arisen between the Parties under
the Old Agreement.
1.4 Any reference made to the Old Agreement in any memorandum executed
between the Parties pursuant to the Old Agreement shall mean reference
to this Agreement.
2. Definitions
As used in this Agreement, unless otherwise provided, the following terms
shall have the following meanings:
(1) "Goods" means any software for personal computers ("PCs"), PCs,
peripheral equipment for PCs or similar Goods, and supplies relating
thereto, that are or will be manufactured or sold within the Territory
by the Seller. Provided, however, that Goods shall include items,
other than those mentioned above, as may be determined by the Parties
in writing.
(2) "Territory" means Japan and other areas as may be determined by the
Parties in writing.
3. Purpose
The Seller shall continually sell Goods to the Buyer under the terms and
conditions set forth herein, and the Buyer shall purchase and sell such Goods
within the Territory.
4. Sale Price
4.1 The Seller shall sell Goods to the Buyer at the price set forth in a
separate Memorandum to be entered into between the Parties.
4.2 The Buyer shall determine the Good's selling prices to its customers.
(including, but not limited to, Buyer's affiliated companies, and the
resellers or end users the Buyer conducts business with.)
5. Individual Contracts
5.1 The name, quantity, place and date of delivery of Goods, and other
terms necessary to effect the sale and purchase between the Parties,
except those provided herein, shall be set forth in the Individual
Agreement to be executed between the Parties.
5.2 The Individual Agreement mentioned in the preceding paragraph shall
take effect when the Seller expresses to the Buyer of its acceptance
of the order upon Seller's receipt of the Buyer's order form
(including orders by fax), or when the Seller fails to express its
intention either within the same day of its receipt of Buyer's order,
or by 10:00 a.m. the following day. In either case, the Seller shall
notify the Buyer of the date of delivery of the Goods specified in the
Individual Agreement simultaneously with the notification to accept
the order. Provided, however, to the extent that the Seller has
already stopped manufacturing the Goods as of the Seller's receipt of
Buyer's order form, or that any one of the events set forth in Article
22 herein has occurred to the Seller, the Seller may refuse to execute
the Individual Agreement. In cases where the Seller deems it difficult
to accept the order for other reasons, the Seller shall immediately so
notify the Buyer in writing, and the Parties shall consult with each
other in good faith to discuss the possibility of changing relevant
terms of agreement.
6. Inspection of Delivery
6.1 The Seller shall deliver the Goods and the statement of delivery,
prepared in a form specified by the Buyer, to the Buyer by bringing or
sending the foregoing to the warehouse or other place as specified by
the Buyer. The Buyer shall promptly inspect the Goods after receiving
the delivery thereof. Goods are deemed to have been received upon
passing such inspection. The Seller shall, at its own expense and on
its own responsibility and within the time period specified by the
Buyer, take back the Goods which have failed to pass the above
inspection and the quantity which has exceeded the amount stipulated
in the Individual Agreement, and if necessary, replace rejected Goods.
6.2 When the Seller fails to take back the rejected Goods or the quantity
which has exceeded the amount specified in the Individual Agreement
("Excess Delivery") within the time period set forth in the preceding
paragraph, the Buyer may send back the foregoing to the Seller at the
Seller's expense.
6.3 The Buyer shall keep the rejected Goods or Excess Delivery in its
custody with the same care as it uses to its own property, and in
cases where the rejected Goods or Excess Delivery was damaged due to
causes not attributable to the Buyer, the Seller shall bear such
damage.
7. Delayed Delivery
7.1 When it is deemed impossible to deliver the Goods by the delivery date
specified in the Individual Agreement due to causes attributable to
the Seller, the Seller shall promptly inform the Buyer of, including
causes thereof, in writing and seek instructions from the Buyer.
7.2 Where it is impossible to deliver the Goods by the date specified in
the Individual Agreement due to causes attributable to the Seller, the
Buyer shall have the right to claim damages for delayed delivery at
the rate of [*]. Notwithstanding the payment of the foregoing damages,
the Seller shall not be released from the liability set forth in
Article 23 herein.
7.3 Where the delivery is delayed for causes not attributable to the
Buyer, the Buyer may terminate the Individual Agreement with respect
to such Goods.
8. Transfer of Title
8.1 The title of Goods shall be transferred upon completion of the
inspection set forth in Article 6 herein.
8.2 Where the Goods are software products, the title to the media of the
software alone shall transfer as set forth in the preceding paragraph,
and the right to use the software and other rights shall be directly
licensed to end users by the licensor ("Original Licensor") pursuant
to the license or other agreement entered into between the Buyer or
the Original Licensor.
9. Risk of Loss
The Seller shall be liable for any loss, impairment or other damage which
occurred in the Goods prior to completion of inspection, except where causes of
such loss, impairment or other damage are attributable to the Buyer. The Buyer
shall be liable for any loss, impairment or other damage which occurred in the
Goods after completion of inspection, except where causes of such loss,
impairment or other damage are attributable to the Seller.
* Confidential Treatment Requested
10. Payment Terms
10.1 The Buyer shall pay to the Seller the price for the Goods passing the
inspection, which have been received by the fifteenth day of each
month (hereinafter the "Amount Due"), by remitting the said amount to
a bank account designated by the Seller no later than the end of the
second month following each Closing Date. The remittance fee shall be
borne by the Seller. Provided, however, the Buyer can setoff the
payment of the Amount Due against the amount received by the Seller
for the Goods returned to the Seller by the Buyer ("Amount to be
Returned"), if there is such Amount to be Returned as of the
fifteenth day of the said month. In cases where the Amount to be
returned exceeds the Amount Due, the Seller shall pay the difference
into the bank account designated by the Buyer no later than the end
of the second month from thereof.
10.2 In cases where the fractions of one yen arise in relation to the
computation of the consumption tax, the said fractions shall be
discarded.
10.3 The Seller shall promptly confirm the sum of the Amount paid, and if
any discrepancies in the sum are found (if there has been a
miscalculation), the Seller shall promptly contact the Buyer, and the
Parties shall quickly resolve the matter through discussion. Where no
protest has been lodged within 6 months of the Seller's receipt of
the Amount, the Seller shall no longer be able to claim a
miscalculation.
11. Promise of Setoff
If the Seller is under any monetary obligations to the Buyer, the Buyer can
at any time offset such obligations against the Buyer's monetary obligations to
the Seller under this Agreement to the extent of the corresponding amount to his
obligations.
12. Return of Goods
Matters relating to return of Goods shall be set forth in the Memorandum to
be executed between the Parties.
13. Rebates
Matters relating to rebates on Goods shall be set forth in the Memorandum
to be executed between the Parties.
14. Warranty of Quality and Function
14.1 The Seller warrants that the Goods have no defects in their quality
and function.
14.2 In cases where the Buyer, its customer, or other third party has
suffered damage due to defective Goods or where the Buyer has
received claims or
complaints relating to the Goods from its customers, the Seller
shall, at its own expense and responsibility, resolve the issue by
replacing such defective Goods, payment of damages or other
appropriate measures within one year from the receipt of the Goods,
and hold the Buy harmless, provided, however, that the Seller shall
keep the Buyer advised of the status of resolution and act under
instructions, if any, from the Buyer.
14.3 In the event the Buyer or its customer is forced to pay damages to
any third party based on the claims or complaints mentioned in 14.2
above, the Seller shall indemnify such Buyer or its customer, as
applicable, against any and all damages and costs arising out of or
incurred in contesting to any claim relating to such disputes.
(including litigation costs, attorney's fees and other professional
fees)
14.4 The Seller shall bear all expenses for shipment, processing of
returns and such other costs as the Buyer incurs in connection with
the Buyer's recall or replacement of Goods attributable to a fault in
the Goods.
14.5 Even after the lapse of one year from the receipt of Goods, upon
detection of latent defects arising from the willfulness or gross
negligence of the Seller, the Seller shall be liable for the
obligations set forth in 14.2, 14.3 and 14.3 hereof.
15. Product Liability
15.1 The Seller warrants that the Goods contain no defects under Article 2
paragraph 2 of the Product Liability Law. ("Defects")
15.2 The Buyer shall notify the Seller of any dispute resulting from
Defects arising between the Buyer or its customer and other third
party, and the Seller shall, at its own expense, provide cooperation
and support as necessary for the Buyer or its customer to resolve
thereof.
15.3 In the event the Buyer or its customer has been forced to indemnify
any third party for damages arising out of the Defects of Goods as
set forth in the preceding paragraph, the Seller shall indemnify such
Buyer or its customer, as applicable, against any and all damages and
costs arising out of or incurred in contesting to any claim relating
to such disputes. (including litigation costs, attorney's fees and
other professional fees)
15.4 The Seller shall bear all expenses for shipment, processing of
returns and such other costs as the Buyer incurs in connection with
the Buyer's recall or replacement of Goods attributable to a defect
in the Goods.
16. Warranty of Copyrights, etc.
16.1 The Seller warrants that the Goods do not infringe upon industrial
property rights, (including the rights based on the publication of
unexamined applications), copyright, circuit layout right, and other
intellectual property right of a third party (collectively, the
"Intellectual Property Rights") in Japan or any other country.
16.2 In the event any infringement claims of an Intellectual Property
Right has occurred or is threatened to occur relating to the Goods of
the Seller, the Seller shall promptly inform the Buyer thereof.
16.3 In the event any infringement claims of an Intellectual Property
Right has occurred or is threatened to occur to the Buyer or its
customer relating to the Goods of the Seller, the Seller shall, at
its own cost and responsibility, resolve such issues. Furthermore, in
the event the Buyer or its customer has been forced to indemnify the
third party for damages arising out of the Defects of Goods, the
Seller shall indemnify such Buyer or its customer, as applicable,
against any and all damages and costs arising out of or incurred in
contesting to any claim relating to such disputes. (including
litigation costs, attorney's fees and other professional fees).
16.4 The Seller shall bear all expenses for shipment, processing of
returns and such other costs as the Buyer incurs in connection with
the Buyer's recall or replacement of Goods resulting from the fact
that the Seller's Goods infringed Intellectual Property Right of a
third party.
17. Sales Support
17.1 The Seller shall, at its own expense, prepare and provide products
for the Buyer for demonstration merchandise, product manuals, and
catalogues and such other items as necessary for marketing activities
relating to the Goods.
17.2 Upon the Buyer's request, the Seller shall, at its own expense,
provide technical support services necessary for the Buyer's timely
distribution of the Goods to the Buyer or such other third party as
may be designated by the Buyer.
17.3 The Seller shall permit the Buyer and its customers to use the
trademarks of the Buyer and the Goods only in promotional materials
such as advertisements, materials, and catalogs prepared by the Buyer
and its customers relating to sales activities for the Goods.
Provided, however, upon the Seller's request, the Buyer shall affix
an appropriate proprietary notice indicating the Seller's rightful
ownership over such trademarks.
18. New Products and Upgrades
18.1 When the Seller plans to sell a new product or an upgrade to the
Goods sold, the Seller shall promptly notify the Buyer thereof or
introduce such products to the Buyer in advance.
18.2 In the case of the preceding paragraph, unless otherwise agreed upon
between the Parties, the Buyer may return at any time the entire
inventory of old Goods held by the Buyer and its customers. The
expenses incurred by the Buyer in connection with the return of Goods
including transportation expenses shall be borne by the Seller.
19. Observance of Statutes, Standards, etc.
19.1 The Seller's performance of the Agreement and Individual Agreements
shall be in compliance with applicable laws, rules and standards of
Japan and other countries. The Seller shall also abide by the Foreign
Exchange and Foreign Trade Control Law, Export Trade Control Order,
and order and ministerial ordinances concerning foreign exchange
control (collectively, the "Foreign Exchange Control Laws"), and
export trade control laws and regulations of the United States and
other countries. (collectively, the "U.S. Export Trade Control Law")
19.2 In cases where the Buyer requests the Seller to submit a report or
materials in relation to the preceding paragraph, the Seller shall
promptly comply with this request.
19.3 The Seller shall have following obligations relating to the U.S.
Export Trade Control Law:
(1) In cases where relevant regulations or conditions exist in the U.S.
Export Trade Control Law in regard to the Goods for which a quotation
has been requested by the Seller or on which an Individual Agreement
is to be executed by the Parties, the Seller shall so indicate in the
quotation or the written acknowledgement of order, as applicable;
(2) When the Buyer specifies the destination country of export (re-
export) pursuant to (1) above and there is an agreement between the
Parties that such destination country of export (re-export) is
included in the Territory pursuant to Article 2(2) herein, the Seller
shall confirm whether such destination country of export (re-export)
is a destination of export (re-export) approved under the U.S. Export
Trade Control Law, and promptly report thereof to the Buyer. If such
destination country of export (re-export) is not an approved
destination country and the Buyer requests the Seller to obtain the
approval of the government organizations of the countries concerned,
the Seller shall accept such request and promptly obtain such
approval; and
(3) Notwithstanding the above, in the event that it is found after the
Individual Agreement is executed by the Parties that applicable
regulations or conditions exist, or that such destination country is
not an approved destination country of export (re-export), the Seller
shall promptly notify the Buyer in writing thereof.
20. Confidentiality
20.1 Neither Party shall, without a prior written consent of the other
party, disclose or leak to a third party any part of this Agreement
(including Memorandum or Appendixes) or information disclosed by the
other party in connection with this Agreement. Furthermore, neither
party shall use such information unless it is necessary in order to
perform its obligations hereunder or to exercise its rights hereunder.
Regardless of the foregoing, either Parties may disclose such
information for justifiable reasons including in compliance with an
order issued by governmental authorities, provided that the disclosing
party shall promptly notify the other party thereof prior to such
disclosure.
20.2 The provisions set forth in 20.1 above shall not apply to any
information:
(1) that was already in the public domain at the time of disclosure;
(2) that becomes publicly known after it is disclosed through no fault of
the receiving party;
(3) that has been rightfully in the possession of the receiving party
prior to the disclosure;
(4) that was legally disclosed by a third party to the receiving party
free of duty of confidentiality; or
(5) that was independently developed by the receiving party without using
or making reference to the confidential information of the disclosing
party.
(6) that was indicated not to be confidential by the disclosing party.
21. Term of Agreement
21.1 This Agreement shall become effective as of the date of execution and,
unless cancelled or terminated in accordance with the provisions
herein, remain in force until March 31, 2000. The term of this
Agreement shall automatically renew for one year term unless one party
delivers written notice to the other party no later than one month
prior to the end of the current term of its intent not to renew this
Agreement, and the same shall apply thereafter.
21.2 Without regard to the provisions set forth in the preceding paragraph,
the Agreement shall become null and void upon its date of expiration
if no dealings are made between the Parties pursuant to the Agreement
during the term stipulated in the preceding paragraph.
22. Termination Without Cause
If any of the following events occurs to the Seller, the Buyer may
immediately terminate this Agreement in whole or in part, without issuing a
warning or tender of performance of its obligation. Furthermore, the Buyer may
claim damages against the Seller upon such termination:
(1) breach by the Seller of any of the terms set forth herein;
(2) suspension of payment of debts or filing of petition for bankruptcy,
commencement of composition of creditors, corporate reorganization
proceedings, company arrangement or special liquidation of the Seller;
(3) an action by the Clearing House for suspension of the Seller's
business transactions with financial institutions;
(4) issuance of an order or notice of attachment, temporary attachment,
disposition, public auction of the Sellers property, or sanction
against the Seller for tax arrearage or other act of public power;
(5) a resolution of the Seller for the reduction of capital,
discontinuance of business, dissolution or change of organization;
(6) the Seller's failure to perform any of its obligations to the Buyer;
(7) the Seller's material breach of trust; or
(8) the Seller's financial condition has become deteriorated or is
reasonably believed to deteriorate.
23. Damages
23.1 Either party shall be liable for any damage suffered by the other
party due to causes attributable to itself, regardless of whether such
damages could occur under ordinary circumstances or special
circumstances, to the extent that such damage was foreseen or
foreseeable at the time of performance of its obligations hereunder.
23.2 The damages set forth 23.1 above shall include all expenses incurred
in seeking the other party's performance of its obligations hereunder,
as well as reasonable attorney's fees relating to court proceedings
including litigation.
24. Effect of Termination
24.1 Upon termination of this Agreement by cancellation or expiration of
the term or for any other cause, any of the Individual Agreements
which are
current as of the time of such termination shall also terminate unless
otherwise agreed between the Parties.
24.2 Termination of this Agreement, whether by cancellation or expiration
of the term or for any other cause, shall not accelerate the
performance of the Buyer's obligation to the Seller.
24.3 In the event this Agreement is terminated, the Buyer may, at its own
discretion, dispose such Goods of the Seller as may be held in custody
of the Buyer pursuant to Article 6 herein and apportion the proceeds
therefrom less the disposal expenses to the satisfaction of the
Seller's obligations, if any.
24.4 In the event that this Agreement is terminated, the Buyer shall be
entitled to return all the Goods in its inventory to the Seller. The
same shall apply to the Goods returned to the Buyer by its customers
within one year from the date of termination or expiration of this
Agreement.
24.5 In the event of return of the Goods pursuant to 24.4 above, the Seller
shall return the price of the Goods already paid by the Buyer, by
remitting to a bank account specified by the Buyer no later than the
fifth day of the following month the amount for the Goods returned by
the end of the month.
24.6 Notwithstanding the termination of this Agreement by cancellation or
expiration of the term or for any other cause, the provisions of
Article 11 (Promise of Setoff), Article 14 (Warranty of Quality and
Function), Article 15 (Product Liability), Article 16 (Warranty of
Copyrights, etc.), Article 19 (Observance of Statutes, Standards,
etc.), Article 20 (Confidentiality), Article 24 (Effect of
Termination), and Article 27 (Jurisdiction) shall remain in full force
and effect.
25. No Assignment
The Seller shall not assign, or pledge as collateral, any of the rights or
obligations hereunder to any third party without the written consent of the
Buyer.
26. Notification
The Seller shall notify the Buyer in writing of any of the following:
(1) any change of its bank account for remittance and the name of the
holder thereof;
(2) establishment, relocation or closure of its head office or branch
office;
(3) change of its representative directors; or
(4) material change in its business or likeliness of such material change.
27. Jurisdiction
In the event any dispute arises between the Parties relating to the
Agreement or Individual Agreement, the District Court or the Summary Court
having jurisdiction over the area in which the head office of the Buyer is
located shall have exclusive jurisdiction as the court of first instance.
28. Amendment
This Agreement may be amended only by a written agreement signed and sealed
by the representative officer of the Parties. If there is any discrepancy
between the provisions of the Agreement and the Individual Agreement, such
provision shall be null and void.
29. Mutual Consultation
If any doubts arise in connection with this Agreement, the Parties shall
consult with each other in good faith to resolve such issue.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in duplicate, affixing their names and seals thereto and each party
retaining one copy.
Confirmation
Trend Micro Incorporated ('Seller') and SOFTBANK COMMERCE CORP. ('Buyer') enter
into this written Confirmation (hereinafter, the 'Confirmation'), pursuant to
the Basic Agreement on Continual Sale and Purchase of Goods (hereinafter, the
'Original Agreement') entered into as of October 1, 1999 between Seller and
Purchaser.
Article 1. (Ratio of Retail Price to Purchase Price)
Unless otherwise agreed in writing by the Parties, the ratio of the Retail
Price to the Purchase Price provided in Article 4.1 of the Basic Agreement shall
be as set forth below.
The ratio of the Retail Price to the Purchase Price of the Goods of the
Seller shall be determined with respect to each item of the Goods upon mutual
consultation between the Parties.
Article 2. Return of the Goods
Unless otherwise agreed in writing by the Parties, Return of the Goods
provided in Article 12 of the Basic Agreement shall be as set forth below.
Each party shall, when necessary, consult with each other to agree on
return of the Goods purchased by the Buyer from the Seller. The Buyer may, in
accordance with such agreement, return such Goods as it purchased from the
Seller. No later than the end of the [*] after the month in which such return of
Goods occurred, the Seller shall make a cash payment into the bank account
designated by the Buyer in the amount the Seller has received from the Buyer in
connection the Goods subsequently returned by the Buyer to the Seller by the
fifteenth day of the month thereof. This section does not apply to certain Goods
concerning which return the Basic Agreement states otherwise.
Article 3. Rebates
Unless otherwise agreed in writing by the Parties, rebates on the Goods as
provided in Article 13 of the Basic Agreement shall be as set forth below.
(1) The Seller shall pay rebates in accordance with the terms provided
in this Article 3 (1) herein. Rebates shall be [*], less returns. ("Net
Purchase Price")
(2) The Seller shall pay to the Buyer the rebate calculated in
accordance with Article 3(1) above. Rebate payments shall be effected, and
shall be deducted from the Buyer's payments to the Seller due in the following
month such rebate is calculated. Where the amount of rebates exceed the Buyer's
payments to the Seller, the Seller shall pay the difference into the bank
account designated by the Buyer no later than the date specified by the Buyer.
*Confidential Treatment Requested
Article 4. Term
The Memorandum shall become effective on the date as written below and
remain effective until the termination of the Basic Agreement.
Dated: October 1, 1999
Seller:
Trend Micro Incorporated
10th Floor Odakyu Xxxxxxxx Xxxxx 0 - 0 - 0 Xxxxxx, Xxxxxxx-xx, Xxxxx
Xxxxx Xxxx Jang
Representative Director
Buyer
SOFTBANK COMMERCE CORP.
00-0 Xxxxxxxxxx-Xxxxxxxx-xxx
Xxxx-xx, Xxxxx
Xxx Xxxxxxxx
Representative Director
MEMORANDUM CONCERNING SALES
PROMOTIONS FEES
SOFTBANK COMMERCE CORP. ("Softbank") and Trend Micro Kabushiki Kaisha ("Trend
Micro") shall manage Sales Promotion Fees for the year 2000 as follows.
Article 1. Purpose of Memorandum
Trend Micro shall pay Softbank the Sales Promotion Fees defined in Article
3 as compensation for business support activities.
Article 2. Term
This memorandum shall be valid for 1 year from January 2000.
Article 3. Stock Target
The value of the yearly Stock Purchase Target for Trend Micro's products
shall be [*] yen.
1 The [*] breakdown of the yearly Stock Purchase Target shall be as per
below:
[*]
2 Products
The Products included shall be licenses and packages for InterScan
VirusWall, InterScan eManager, InterScan for MS-Exchange, InterScan for
LotusNotes, Trend VCS, ServerProtect and VirusBuster Corporate Edition.
Article 4. Method for calculating Sales Promotion Fees.
Upon attainment of the Stock Purchase Targets defined in Section 3 - 1 [*],
the Sales Promotion Fees shall be calculated per below. However, in the event
the [*] Stock Purchase Target has not been attained, the Stock Purchase Target
shall be reviewed on a [*] basis, and upon attainment of the [*] Stock Purchase
Target, the corresponding Sales Promotion Fees shall be paid.
1 [*]% attainment: Sales Promotion Fees shall be [*]% of the total
value of purchase.
2 [*]% attainment: Sales Promotion Fees shall be [*]% of the total
value of purchase.
* Confidential Treatment Requested
Article 5. Payment
3 Payment shall be made from the Sales Promotion Fees calculated in
Article 4 for business support activities described in the attachment to
be determined by mutual consultation between both parties.
4 Payment shall be made upon Trend Micro receiving an invoice from
Softbank. The payment terms of Trend Micro shall as a rule be by the
20/th/ day of the [*] after receipt of the invoice.
5 Payment by Trend Micro shall be made to the payment account
specified in the Softbank invoice.
Article 6. Penalties
In the event that any of the Products included in the calculations made for
the Sales Promotions Fees are returned within a year of sale, Trend Micro shall
deduct the value of the returned Product from the vale of total value of
purchase, and the Sales Promotion Fees shall be recalculated. In the event a
discrepancy arises in the amount payable to Trend Micro, Softbank shall be
requested to repay the difference or change the amount of payment. However,
replacements shall not be considered returned Product for the purposes of this
Memorandum.
Article 7. Obligations of Softbank
To facilitate the calculation of costs incurred, Softbank shall be obliged
to submit monthly Product inventories and sales reports, in response to a
monthly request from Trend Micro.
Article 8. Cancellation and Termination
1 In the event that any of the following occurs on the part of either
party, the other party may immediately terminate this Memorandum without notice.
i) When payments have been halted, or when petitioning for bankruptcy, or
commencement of composition of creditors or procedures for corporate
rearrangement, corporate reorganization, or special liquidation.
ii) When a suspension has been effected by a clearing house.
iii) In the event of some other material breach of faith which will preclude the
Memorandum being continued.
2 Softbank or Trend Micro may terminate this Memorandum, when the other
party fails to fulfill any of its obligations under this Memorandum, and further
fails to correct the same within a reasonable period after preemptory notice
from the other party
* Confidential Treatment Requested
Article 9. Consultation
In the event there is doubt concerning the interpretation of this
Memorandum, Softbank and Trend Micro shall resolve the same by good-faith mutual
consultation.
IN WITNESS WHEREOF, two originals hereof are created, and upon the names and
seals of each of Softbank and Trend Micro, each shall retain one original
hereof.
Date:
Softbank Representative:
Corporate name:
Address:
Trend Micro Officer in charge: Xxxxxx Xxxx, General Manager
Business Partners Department
Sales and Marketing Headquarters
Corporate name: Trend Micro Kabushiki Kaisha
Address: Odakyu Southern Tower, 10F
2-2-1 Yoyogi, Shibuya-ku, Tokyo-to.
(Attachment)
Description of Business Support
February 22, 2000
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Preparation of Sales Promotion product Materials such as catalogues etc. (with joint logo)
--------------------------------------------------------------------------------------------------
Acquisition of Certification TCAE/TCSE
--------------------------------------------------------------------------------------------------
Campaign Directed at Softbank employees and sales
agents with the purpose of sales promotion
--------------------------------------------------------------------------------------------------
Seminar Includes introduction to Trend Micro
products; Purpose - to expand sales
--------------------------------------------------------------------------------------------------
Matters to note
Business support activities other to those described above shall be determined through mutual
consultation by both parties
--------------------------------------------------------------------------------------------------
(attached materials) none
--------------------------------------------------------------------------------------------------
Trend Micro Kabushiki Kaisha.
MEMORANDUM CONCERNING AGREEMENT TRANSFER
Trend Micro Incorporated ("Trend Micro") and SOFTBANK E-COMMERCE Corp.
(formerly Softbank Commerce; hereinafter "SOFTBANK E-COMMERCE") hereby agree to
the following concerning the transfer of the agreement to be conducted pursuant
to the transfer of business of Softbank eCommerce scheduled to take place on
April 1, 2000.
Article 1. Transfer of Agreement
1. Softbank eCommerce shall, by a resolution of an Extraordinary General
Meeting of Shareholders convened on December 24, 1999 ("Extraordinary
General Meeting"), transfer the Soft Network businesses to the Transferee
designated in the same resolution, SOFTBANK COMMERCE Corp. (to be
established in March 2000; hereinafter "the Transferee"), and shall
transfer to the Transferee the status of the parties to, and the rights and
obligations under any transaction agreements entered into between the two
parties which have been executed by and are still valid on the Effective
Date stipulated in Article 3 ("the Agreements").
2. Trend Micro shall consent to the agreement transfer ("Agreement Transfer")
described in the preceding paragraph.
Article 2. Agreement by the Transferee
Immediately after the Transferee has been duly incorporated, SOFTBANK
E-COMMERCE shall cause the Transferee to furnish Trend Micro and SOFTBANK
E-COMMERCE with documentation stating its consent to, in accordance with the
contents of this Memorandum, accept the Agreements and all rights and
obligations thereunder, and accord SOFTBANK E-COMMERCE with the rights to
receive as settlement agent in accordance with Article 5.
Article 3. Effective Date
The Agreement Transfer shall become effective upon the following two
provisions being satisfied (scheduled to be April 1, 2000; hereinafter "the
Effective Date").
1. The submission of written consent as described in the preceding article
from the Transferee.
2. The transfer of the business operations by SOFTBANK E-COMMERCE to the
Transferee following the necessary license and permission being obtained
from the relevant authorities pursuant to a resolution of the Extraordinary
General Meeting.
Article 4. Effect of Transfer
The status of the parties to the Agreements, all rights and duties
thereunder (including all mortgages, guarantor rights, rights to claim
compensation and the like) as
well as obligations arising therefrom shall pass from SOFTBANK E-COMMERCE to the
Transferee in their entirety.
Provided however, SOFTBANK E-COMMERCE shall remain liable to jointly
and severally perform with the Transferee any of the following obligations with
regard to Trend Micro:
1. All obligations under Individual Agreements concluded between Trend Micro
and SOFTBANK E-COMMERCE prior to the Agreement Transfer pursuant to Master
Agreements included in the Agreements;
2. Obligations where either of the following had been determined prior to the
Agreement Transfer.
i. Amount of obligation;
ii. Type and quantity of goods;
3. Damages arising from default on the agreements on the part of SOFTBANK
E-COMMERCE prior to the Agreement Transfer;
4. Obligations agreed to by both parties separately in writing other to those
specified in the preceding paragraphs.
Article 5. Acquisition of Rights to Receive as Settlement Agent
SOFTBANK E-COMMERCE shall be accorded by the Transferee the rights to
act as agent with regard to receipt of settlements for all claims transferred to
the Transferee from SOFTBANK E-COMMERCE pursuant this Memorandum, and therefore,
after the Effective Date Trend Micro may make settlements with either SOFTBANK
E-COMMERCE or the Transferee.
Article 6. Mutual Consultation
If any doubts arise in connection with matters not defined in this
Memorandum, the parties shall resolve such by good faith mutual consultation.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in duplicate, and each party shall retain one copy hereof.
March 31, 2000
Trend Micro Incorporated
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Revenue stamp Representative Director
(Yen)200 Xxxxx Xxxx Jang
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Odakyu Southern Tower 10F
0-0-0 Xxxxxx
Xxxxxxx-xx, Xxxxx 000-0000 [seal]
SOFTBANK E-COMMERCE CORP.
Representative Director
Xxx Xxxxxxxx
00-0 Xxxxxxxxxx-Xxxxxxxx-xxx
Xxxx-xx, Xxxxx [seal]
