EX-10.34 10 d211280dex1034.htm DAEJIN DISTRIBUTOR AGREEMENT: INTERNATIONAL DISTRIBUTION AGREEMENT NOTE: Portions of this Exhibit are the subject of a Confidential Treatment Request by the Registrant to the Securities and Exchange Commission (the...
Exhibit 10.34
NOTE: Portions of this Exhibit are the subject of a Confidential Treatment Request by the Registrant to the Securities and Exchange Commission (the “Commission”). Such portions have been redacted and are marked with a “[***]” in the place of the redacted language. The redacted information has been filed separately with the Commission.
INTERNATIONAL DISTRIBUTION AGREEMENT
This International Distribution Agreement (this “Agreement”) is entered into as of March 05, 2007 by and between GCT SEMICONDUCTOR, INC., a Delaware corporation having its place of business at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, the United States of America (hereinafter called “GCT”) and Daejin Semiconductor with its principal office of business at #1209, SJ Technoville, 00-00, Xxxxx-Xxxx, Xxxxxxxxx-Xx, Xxxxx, Xxxxx 153-801 (hereinafter called “DISTRIBUTOR”).
WHEREAS, GCT develops, designs and manufactures the Products (as defined below); and
In this Agreement, capitalized terms shall have the following meanings unless the context otherwise requires:
1.1 | “Customer” shall mean any customer of DISTRIBUTOR that is one of the following: (i) an individual domiciled in Territory, (ii) an entity legally organized or incorporated in Territory; or (iii) an individual or entity with his or its main place of business located in Territory, but excluding in all cases Excluded Customers. |
1.2 | “Excluded Customers” shall mean those customers set forth on Attachment #3 hereto. GCT may in its sole discretion modify Attachment #3 upon sixty (60) days written notice to DISTRIBUTOR. |
1.3 | “Products” shall mean the products listed on Attachment #2 hereto. |
1.4 | “Intellectual Property Right” shall mean any patent, copyright, trademark, trade secret, and any applications therefor, know-how, hardware configuration, computer software programs or applications, circuit or logic designs, tangible or intangible proprietary |
information, or any other intellectual property right or proprietary information or technology, whether registered or unregistered. |
1.5 | “Territory” shall mean South Korea. |
2.1 |
2.2 |
2.3 |
3.1 |
3.2 | Submission of Purchase Orders. DISTRIBUTOR shall submit purchase orders to GCT which shall set forth the following information: (a) identification of the Products, (b) quantity of each Product, (c) price of each Product, (d) shipping instructions, and (e) requested delivery date(s) (“Purchase Orders”). All purchase orders issued under this Agreement shall be subject to the terms and conditions hereof and this Agreement shall supercede any terms and conditions contained in any pre-printed forms submitted by DISTRIBUTOR as, or in connection with, any purchase order. In the event of any discrepancy between the provisions of this Agreement and any purchase order, the provisions of this Agreement shall prevail, unless explicitly stated otherwise in the purchase order and such purchase order is executed by both parties. |
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3.3 |
3.4 |
3.5 |
3.5.1 |
3.5.2 | Changes and Cancellations (excluding Price Changes). Purchase orders accepted by GCT may be changed or cancelled by DISTRIBUTOR only upon written consent of GCT. In the event that a Customer of DISTRIBUTOR requests [***] GCT shall [***]. In the even the DISTRIBUTOR cancels any outstanding purchase order(s) the following schedule of order cancellation charge will be applied to DISTRIBUTOR. |
• | Up to [***] days before confirmed shipment: No cancellation allowed. |
• | From [***] days through [***] days before confirmed shipment: 50% of total invoice price. |
• | [***] days or more before confirmed shipment: 0% of total invoice price |
3.6 | Delivery, Title and Risk of Loss. Products are delivered EXW (GCT Factory)(Incoterms 2000). GCT shall arrange for shipment of Products with any desired insurance based upon DISTRIBUTOR’S written instructions, and it shall at all times utilize the services of an internationally reputable carrier, at the rate acceptable to DISTRIBUTOR in its written instructions, or if no rate is given, at the most effective rate that is in accordance with good business judgment. The cost of shipping and any desired insurance shall be borne by DISTRIBUTOR and, if not paid directly, DISTRIBUTOR shall reimburse GCT upon GCT’s invoice in accordance with Article 6.5. Title and risk of loss or damage will pass to DISTRIBUTOR at GCT’s Factory. Any loss or damage thereafter, including |
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damage or loss during loading or transportation, will be DISTRIBUTOR’s responsibility and will not relieve DISTRIBUTOR of its payment obligation. Any claim by DISTRIBUTOR against GCT for shortage of Products or damage to Products occurring prior to such delivery must be made in writing within [***] days after receipt of shipment and must be accompanied by the original transportation xxxx signed by the carrier noting that the carrier received the Products from GCT in the condition claimed. Any shipments returned to GCT as a result of DISTRIBUTOR’s unexcused delay or failure to accept delivery will require DISTRIBUTOR to pay all additional costs incurred by GCT. |
3.7 | Acceptance. Products shall be deemed accepted by DISTRIBUTOR upon delivery. |
3.8 |
Article 4. DISTRIBUTOR’S ROLES AND RESPONSIBILITIES
4.1 |
4.2 |
4.3 |
4.4 |
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4.5 | No Unauthorized Representations or Warranties. DISTRIBUTOR hereby covenants and agrees that it shall not provide unauthorized representations to third parties regarding the performance or functional capabilities or characteristics of the Products beyond those stated in GCT’s then current sales materials and evaluation kits. |
4.6 |
4.7 |
4.8 |
4.9 |
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4.10 |
Article 5. GCT’S ROLES AND RESPONSIBILITIES
5.1 |
5.2 | Sales Support. GCT shall, at its own expense, dispatch appropriate sales personnel to Territory at least once per calendar quarter, to assist in DISTRIBUTOR’s sales and marketing efforts. |
5.3 |
Article 6. PRICES AND PAYMENT TERMS
6.1 |
6.2 |
6.3 |
6.4 |
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6.5 |
6.6 |
7.1 |
7.2 |
7.3 |
Article 8. REPRESENTATIONS AND WARRANTIES
8.1 |
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and performance of this Agreement by DISTRIBUTOR does not violate, conflict with, or result in a material default under any other contract or agreement to which DISTRIBUTOR is a party, or by which it is bound, and (f) the provisions of this Agreement, and the rights and obligations of the parties hereunder, are enforceable under the laws of the jurisdictions in which DISTRIBUTOR does business. |
8.2 |
8.3 | GCT Limited Product Warranty. GCT warrants to DISTRIBUTOR and DISTRIBUTOR’s Customer that the Products which DISTRIBUTOR purchases from GCT hereunder and resells to Customers shall conform to the specifications provided by GCT (“GCT Product Warranty”). The warranty period is the lesser of: [***]. In the event that a Customer requests a longer warranty period and DISTRIBUTOR has used its best efforts to defend the standard warranty period, GCT shall consider extending the warranty period for such a Customer. The GCT Product Warranty does not extent to any Product that (i) is modified or altered, (ii) is not maintained in accordance with GCT’s recommendations, (iii) is used in a manner other than that specified by GCT, (iv) is treated with abuse, negligence or other improper treatment, or (v) GCT is not capable of testing under its normal test conditions. No warranty claim shall be considered or accepted until GCT confirms to DISTRIBUTOR that the defect was caused solely by the fault of GCT within this period. |
8.4 | Exclusive Remedy; Disclaimers. GCT’s sole liability and DISTRIBUTOR and Customer’s sole remedy hereunder shall be limited to replacement or refund of the purchase price of those Products proven defective. The GCT Product Warranty is exclusive and in lieu of all other warranties and remedies. EXCEPT FOR THE GCT PRODUCT WARRANTY SET FORTH IN SECTION 8.3 ABOVE, GCT MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NONINFRINGEMENT. |
8.5 |
9.1 | DISTRIBUTOR’s Responsibilities. DISTRIBUTOR will handle and be responsible for all Product returns during the applicable warranty period(s) whether such returns are |
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made directly from DISTRIBUTOR after acceptance of Products or through DISTRIBUTOR by Customers in the Territory who bought the Products from DISTRIBUTOR. |
9.2 |
9.3 |
9.4 |
10.1 |
Article 11. INFORMATION AND REPORTING REQUIREMENTS
11.1 |
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11.2 |
11.3 |
11.4 |
11.5 |
Article 12. TRADEMARKS AND INTELLECTUAL PROPERTY
12.1 | Ownership and Use of GCT Marks. DISTRIBUTOR expressly agrees that ownership and all right, title and interest in and to GCT’s name or any trademark or trade name relating to the Products (collectively, “Marks”) are and shall remain vested solely in GCT; provided, however, that DISTRIBUTOR may use the Marks to the extent and only to such extent necessary to perform DISTRIBUTOR’s duties hereunder. DISTRIBUTOR shall continually use its best efforts to protect GCT’s Marks. DISTRIBUTOR shall promptly notify GCT of any infringement thereof about which it has actual knowledge. DISTRIBUTOR shall not use, directly or indirectly, in whole or in part, GCT’s Marks in connection with any product other than the Products, without the prior written consent of GCT. Upon notice from GCT of its objection to any improper or incorrect use of such Marks, DISTRIBUTOR shall correct or change such usage. DISTRIBUTOR shall indemnify and hold GCT harmless for any and all liability, charges and/or costs of defending against claims arising from improper use by DISTRIBUTOR of such Marks after GCT has in writing objected to DISTRIBUTOR’s use of them. |
12.2 | Review and Approval of Uses. DISTRIBUTOR must obtain GCT’s prior written approval to use any of GCT’s Marks in any advertising or literature, and must strictly comply with GCT’s instructions regarding their use. Among other things, DISTRIBUTOR will be required to indicate explicitly GCT’s ownership of the Xxxx. At GCT’s request, DISTRIBUTOR will submit to GCT for GCT’s approval specimens or photographs of DISTRIBUTOR’s letterhead, business cards, telephone directory listings, signs and vehicle markings and any other advertising materials in which DISTRIBUTOR indicates an affiliation with GCT or the sale or distribution of the Products. Unless |
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otherwise agreed to in writing by GCT, DISTRIBUTOR shall sell Products only under the Marks affixed thereon or on the packages in which they are delivered, if any, and DISTRIBUTOR shall not have the right to eliminate such Marks or add any other trademark, copyright or patent notice, or trade name thereto. At the expiration or termination of this Agreement, DISTRIBUTOR will immediately discontinue any use of all GCT Marks, as well as any other combination of words, designs, trademarks or trade names that would indicate that DISTRIBUTOR is or was an authorized distributor of the Products. If GCT determines in its sole discretion that DISTRIBUTOR is using the Marks in a manner that disparages, diminishes and/or tarnishes its image and/or reputation, GCT may terminate this Agreement. |
12.3 |
12.4 |
DISTRIBUTOR agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, confidential or proprietary information related to GCT’s technology or business that DISTRIBUTOR learns in connection with this Agreement and any other information received from GCT, including without limitation, to the extent previously, currently or subsequently disclosed to DISTRIBUTOR hereunder or otherwise: information relating to products or technology of GCT or the properties, composition, structure, use or processing thereof, or systems therefor, or to GCT’s business, including, without limitation, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, customer information, inventions (whether patentable or not), names and expertise of employees and consultants, all information relating to customers and customer transactions and other technical, business, financial, customer and product development plans, forecasts, Product prices, strategies and information), all of the foregoing, “Confidential Information”. DISTRIBUTOR shall not disclose the terms of this Agreement to any third
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party or copy this Agreement for any use without the prior written consent of the GCT. DISTRIBUTOR shall use reasonable precautions to protect GCT’s Confidential Information and employ at least those precautions that DISTRIBUTOR employs to protect its own confidential or proprietary information. “Confidential Information” shall not include information DISTRIBUTOR can document (a) is in or (through no improper action or inaction by DISTRIBUTOR or any affiliate, agent or employee) enters the public domain (and is readily available without substantial effort), or (b) was rightfully in its possession or known by it prior to receipt from GCT, or (c) was rightfully disclosed to it by another person without restriction, or (d) was independently developed by it by persons without access to such information and without use of any Confidential Information of GCT. DISTRIBUTOR, with prior written notice to GCT, may disclose such Confidential Information to the minimum extent possible that is required to be disclosed to a governmental entity or agency in connection with seeking any governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency (including a court order or subpoena), provided that reasonable measures are taken to guard against further disclosure, including without limitation, seeking appropriate confidential treatment or a protective order, or assisting GCT to do so.
Article 14. TERM AND TERMINATION
14.1 |
14.2 |
14.3 |
14.4 |
(a) | All outstanding unpaid invoices rendered by GCT shall become immediately payable by the DISTRIBUTOR and invoices in respect of Products ordered prior to termination but for which an invoice has not been submitted shall be payable immediately upon submission of invoice; |
(b) | The appointment made pursuant to Article 2.1 and the right to use the Marks granted pursuant to Article 12 shall terminate immediately; |
(c) | GCT shall be entitled (but not obligated) to repurchase from the DISTRIBUTOR all or part of any inventory of Products then held by the DISTRIBUTOR at the invoice value of such Products, provided that (i) GCT shall be responsible for arranging and for the cost of transport and |
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insurance, and (ii) DISTRIBUTOR may sell Products for which it has accepted orders from customers prior to the date of termination; |
(d) | DISTRIBUTOR shall at its own expense within thirty (30) days send to GCT (or otherwise dispose of in accordance with the instructions of GCT) any (i) sample Products, (ii) components of Products, (iii) Products loaned to DISTRIBUTOR by GCT to assist with repairs, and (iv) all promotion or sales material relating to the Products then in its possession or control; |
(e) | DISTRIBUTOR shall cease to promote, market or advertise the Products or to make use of the Marks; |
(f) | DISTRIBUTOR shall have no claim against GCT for compensation for loss of distribution rights, loss of goodwill or any similar loss; and |
(g) |
15.1 |
15.2 |
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activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where DISTRIBUTOR’s use of the Product is incident to an infringement not resulting primarily from the Products. If any Product or any portion of a Product becomes, or in GCT’s opinion is likely to become, the subject of a claim of infringement, then GCT may, at its option and expense, (i) procure for DISTRIBUTOR the right to continue using the Product or portion of a Product, as the case may be, or (ii) replace or modify the affected Product or portion of a Product, as the case may be, so that it becomes non-infringing. If neither alternative is reasonably available, GCT may terminate this Agreement. THE FOREGOING STATES GCT’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS. |
15.3 |
Article 16. LIMITATION OF LIABILITY
16.1 |
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LIABILITY FOR DAMAGES THAT ARE THE SUBJECT OF INDEMNIFICATION PURSUANT TO ARTICLE 15 ABOVE. |
16.2 |
17.1 |
17.2 |
17.3 |
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17.4 |
17.5 |
17.6 |
17.7 |
17.8 | Governing Law. This Agreement shall be performed, governed by and construed in accordance with the Laws of the State of California without regard to principles of conflict of laws. The parties agree that any suit or proceeding arising under this Agreement shall be instituted only in a court of law located in the Northern District of California, USA, and the parties hereby irrevocably agree and submit to the jurisdiction and venue of any such proceeding and agree that service of process may be effected in the same manner notice is given hereunder. In any action to enforce this Agreement the prevailing party will be entitled to costs and reasonable attorneys’ fees. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. |
17.9 | Dispute Resolution. Each of the parties, officers, directors, and employees of the parties hereby irrevocably and unconditionally: (i) submits for itself and its property in any legal action or proceeding relating to this Agreement or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of California, the courts of the United States of America for California, and appellate courts from any thereof; (ii) consents to the fullest extent permitted by law that any such action or proceeding may be brought in such courts and waives trial by jury and any objection that it may now or hereafter have to the venue of any such action or proceeding in any |
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such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same, and (iii) agrees to the fullest extent by law that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail, postage prepaid, to the party at its address set forth in Article 17.4 and hereby accepts service of process if made in accordance with this Article 17.9.
17.10 |
THE DISTRIBUTOR ACKNOWLEDGES THAT IT HAS RECEIVED A SIGNED COPY OF THIS AGREEMENT.
DISTRIBUTOR : | GCT: | |||||||
DaeJin Semiconductor Co., LTD | GCT Semiconductor, Inc. | |||||||
By: | /s/ Park Sung-Seo | By: | /s/ Xxxxxx Xxxxxxx | |||||
Title: | CEO | Title: | VP Sales | |||||
Date: | 3/5/2007 | Date: |
Attachment # 1: GCT Standard Commission Regulation
Attachment # 2: List of Products
Attachment # 3: Excluded Customers
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Attachment #1
GCT Standard Commission Regulation
In consideration for the services performed by DISTRIBUTOR pursuant to Article 2.3 hereunder as a representative, GCT shall pay to DISTRIBUTOR commissions (“Commissions”), as DISTRIBUTOR’s sole and exclusive compensation under this Agreement, in accordance with the provisions hereof.
Definitions
In this Attachment #1, the following definitions shall apply:
Net Sales Revenue
“Net Sales Revenue” means, for any reporting period, the aggregate of all “Net Invoice Prices” in the period, where:
(a) | “Invoice Prices” means the invoice price on a sale from GCT to a Customer as reflected on the GCT invoice to the Customer ; and |
(b) | “Net Invoice Prices” are the Invoice Prices, as calculated in paragraph (a) above, less (i) all items reflected on the invoice which are not revenue to GCT, including without limitation taxes, freight and transportation, and insurance; (ii) all items reflected on the invoice which are nonproduct items, including without limitation replacement products, emergency spare parts, and nonproduct items or services, blue prints, engineering, drawing, maintenance, license fees, conciliation changes, rescheduled charges, back bills, Customer service repairs, and installations, (iii) all Customer program costs, whether reflected on the invoice as a credit or incurred by GCT as off invoice costs, including without limitation co-op marketing, marketing development funds, special promotions. target advertising and similar costs, allocated by GCT in its sole discretion, and (iv) costs of collection, if any. |
1. |
When the Customer [***] then GCT shall pay to DISTRIBUTOR a Commission equal to [***] of the Net Sales Revenue actually received by GCT from the sale of Products by DISTRIBUTOR to each Customer. When the Customer [***] then GCT shall pay to DISTRIBUTOR a Commission equal to [***] of the Net Sales Revenue actually received by GCT from the sale of Products. When the Customer [***] then GCT shall pay to DISTRIBUTOR [***] of the Net Sales Revenue actually received by GCT from the sale of Products.
2. |
Notwithstanding anything contained herein, no Commissions shall be considered earned and due to DISTRIBUTOR under any circumstances with respect to:
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(i) | any sales to Direct Account or to any other account from which DISTRIBUTOR is not authorized by GCT to solicit orders; or |
(ii) | any payments obtained through engagement by GCT of any attorney or collection agency; or |
(iii) | any Customer orders submitted to GCT; or |
(iv) | any Customer orders submitted to GCT or its authorized distributors by DISTRIBUTOR prior to termination of this Agreement but which are not shipped to the Customer within the three (3) month period following the effective date of termination of this Agreement; |
(v) | any sales made to DISTRIBUTOR, to DISTRIBUTOR employees, or to any other entity in which DISTRIBUTOR or any of its principals has any ownership or other financial interest; or |
(vi) | any orders or portions thereof to which GCT is obligated to pay the Commissions to any other sales representatives. |
3. |
By the end of next month after the close of each calendar month during the term of this Agreement, GCT will furnish DISTRIBUTOR with a statement reflecting the status of DISTRIBUTOR’s Commission account. The statement will include an accounting of the orders for which payment is made, including the Customer’s name and invoice number, the rate of Commission on each order, and information relating to any chargebacks included in the accounting. If DISTRIBUTOR has objections with respect to any such statement whether regarding its accuracy, completeness or any other matter, DISTRIBUTOR shall make such objection(s) known to GCT in writing within thirty (30) days after the date of the statement. ANY AND ALL OBJECTIONS FOR WHICH WRITTEN NOTICE IS NOT RECEIVED BY GCT WITHIN THE THIRTY (30) DAY PERIOD SHALL BE DEEMED WAIVED AND ABANDONED BY REPRESENTATIVE.
4. |
In those cases in which DISTRIBUTOR is entitled to a Commission, Commissions shall be deemed earned at such time as all of the following conditions precedent are met: (i) delivery of the Product to the Customer, (ii) acceptance of the Product by the Customer and (iii) receipt of payment of the price by GCT. Commissions will be due and payable to DISTRIBUTOR, less appropriate deductions, within the end of the next month after the end of the month in which the Commissions are deemed earned.
5. |
5.1 | If deductions from Commissions are anticipated, a portion of Commissions may be withheld, up to the amount of deductions. |
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5.2 | No Commission will be paid for orders shipped to any Customer if: |
(i) | Proceedings have been threatened or commenced against such Customer under bankruptcy, insolvency or debtor’s relief law (until such proceeding has been vacated or set aside); |
(ii) | Payments received by GCT might be required, in GCT’s sole judgment, to be paid to a “Trustee” or other person in connection with such proceeding. DISTRIBUTOR shall repay any Commissions for goods paid for if a refund to a Customer is required by GCT by a judgment or order issued as a result of a legal proceeding; or |
(iii) | GCT rejects, cancels, adjusts or compromises any order or invoice. Any such rejection, cancellation, adjustment or compromise shall be without liability of any kind to DISTRIBUTOR. No Commission is payable on the undelivered portion of orders rejected by GCT or canceled or terminated by a Customer or GCT for any reason. |
6. | If a refund is made by GCT to the Customer because a Product is accepted for return by GCT, the Commission already paid on such returned Product shall be deducted from the next due Commission payment or, if no further Commissions are due, shall be refunded by DISTRIBUTOR upon demand by GCT. |
7. |
In the event that Commission adjustments and deductions exceed Commissions payable hereunder in any month, DISTRIBUTOR shall pay GCT the amount owing in cash.
8. |
No Commissions accrue on orders placed after the effective date of the termination or expiration of this Agreement.
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Attachment # 3
Excluded Customers