EXHIBIT 10.5
WARP Solutions Confidential
WARP MASTER DISTRIBUTOR Master Distribution Agreement
THIS MASTER DISTRIBUTOR AGREEMENT (the "Agreement'), is made as of this _1__ day
of ___August___ 2002_ (the "Effective Date") by and between Macnica Networks
Company, a division company of MACNICA, Inc. , including its employees, agents,
contractors and Affiliates, and including such Affiliates' employees, agents and
contractors (collectively, "MASTER DISTRIBUTOR"), a Japanese corporation, with a
place of business at __Macnica Building. # 0, 0-0-0-Xxxx Xxxxxxxx, Xxxxxx-xx
Xxxxxxxx-Xxxx, 222-8562 Japan__ , and WARP Solutions, Inc. ("WARP"), a Delaware
corporation, with a place of business at 000 Xxxx 00 Xxxxxx 0xx Xxxxx, Xxx Xxxx
XX 00000.
In consideration of the mutual promises contained herein, the above-mentioned
parties agree as follows:
Section 1: Definitions
1.1 Capitalized terms used in this Agreement shall have the meanings
attributed to them below or in context in which the term is used, as
the case may be.
(i) "Affiliate" means any entity which, directly or indirectly,
Controls, is Controlled by, or is under common Control with
another entity, and any partnership in which such entity is a
partner. The foregoing definition includes any entity that
conforms to the definition as of the Effective Date hereof, as
well as any entity that conforms to the definition any time
after the Effective Date hereof, provided that any entity
shall only be deemed to be an Affiliate hereunder for such
period of time that it conforms to the definition during the
term of this Agreement.
(ii) "Business Day" shall mean any day other than a Saturday,
Sunday or any National holiday.
(iii) "Confidential Information" means: (a) any information, whether
written or oral, which relates to internal controls, computer
or data processing programs, algorithms, electronic data
processing applications, routines, subroutines, techniques or
systems, or information concerning the business or financial
affairs and methods of operation or proposed methods of
operation, accounts, transactions, proposed transactions,
security procedures, trade secrets, know-how, or inventions of
either the Protected Party, any Affiliate of the Protected
Party, or any client, agent, contractor or vendor of the
Protected Party and (b) the identities and other related
information of clients of either Protected Party, except such
information which is in the public domain at the time of its
disclosure to the Receiving Party or thereafter enters the
public domain other than as a result of a breach of duty on
the part of the Receiving Party or its personnel, or where the
Receiving Party can prove it derived the information
independently.
(iv) "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of an entity, whether through record or beneficial
ownership of voting securities, by contract, or otherwise.
(v) "Customer" means an entity to whom the MASTER DISTRIBUTOR,
under the terms of this Agreement, sells the System for useor
resale.
(vi) "Customer Maintenance and Support Services Agreement" means
the service level agreement for providing support to the
Customer according to WARP'S policies, subject to the payment
by Customer of the applicable fees for such support.
(vii) "MASTER DISTRIBUTOR" is the entity, first identified above,
including its employees, agents, contractors and Affiliates,
and including such Affiliates' employees, agents and
contractors, who directly service a specific end-user market
segment. The MASTER DISTRIBUTOR will purchase WARP's System
directly from WARP, and, unless otherwise expressly stated
herein, resell such System to Customers (end users, resellers
and systems integrators)
(viii) "Effective Date" with reference to the Agreement means the
date, first set forth above, upon which the Agreement becomes
binding and enforceable. Effective Date, when used in specific
reference to a particular Exhibit, means the date first set
forth in that particular Exhibit upon which that Exhibit
becomes binding and enforceable.
(ix) "Include" and its derivatives shall mean including without
limitation. This term is as defined, whether or not
capitalized in this Agreement.
(x) "NDA" means the NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
by and between MASTER DISTRIBUTOR and WARP dated ______August
1, 2002______________ .
(xi) "Protected Party" means the party furnishing its Confidential
Information to the other party.
(xii) "Receiving Party" means the party who receives Confidential
Information from the other party.
(xiii) "System" means the proprietary programmed network appliance
named in Exhibit A to the Agreement and any changes to it
provided by WARP, as well as any Documentation.
Section 2: Appointment, Customers
2.1 Appointment as MASTER DISTRIBUTOR. WARP hereby grants to the MASTER
DISTRIBUTOR the exclusive right to distribute the System to end users,
resellers and systems integrators in Japan during the term of this
Agreement. This Agreement (with its attached Exhibits) provides the terms
and conditions which shall govern the appointment of the MASTER
DISTRIBUTOR.
2.2 Customers. MASTER DISTRIBUTOR is authorized to solicit end users,
resellers and systems integrators for the System from all classes of
potential users of the System. MASTER DISTRIBUTOR will defer end user
sales opportunities to resellers and systems integrators to the extend
possible.
Section 3: Fees.
3.1 MASTER DISTRIBUTOR agrees to pay the purchase price of the System, and
other amounts due, as specified in Exhibit B attached hereto
(collectively the "Purchase Price").
3.2 The MASTER DISTRIBUTOR agrees to pay the Purchase Price and other amounts
due, if any, on the 20th of each month following the date of the invoices
via wire transfer to WARP's account.
3.3 All amounts stated in the Purchase Price for the System purchased by
MASTER DISTRIBUTOR from WARP are in US dollars.
Section 4: MASTER DISTRIBUTOR's Sales Rights
4.1 In connection with the exercise of its rights under this Agreement, but
solely in connection with the marketing of System, the MASTER DISTRIBUTOR
may refer to itself during the term of this Agreement as an authorized
MASTER DISTRIBUTOR of WARP.
4.2 Sales to Customers. MASTER DISTRIBUTOR is authorized to contact, solicit,
and accept, in accordance with the terms hereof, potential Customers of
the System. All Customers of the System obtained through the efforts of
MASTER DISTRIBUTOR shall be in privity of contract with MASTER
DISTRIBUTOR. MASTER DISTRIBUTOR shall bear all credit risks with respect
to the Customers.
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4.3 .
4.4 MASTER DISTRIBUTOR shall have no right to reproduce the System, or any
part thereof. All of the Systems shall be distributed pursuant to WARP's
current NDA, as amended by WARP from time to time, a copy of which WARP
will provide MASTER DISTRIBUTOR. MASTER DISTRIBUTOR shall not sell or
distribute any System to any Customer unless the Customer has accepted
the terms of WARP's current NDA, under penalty of perjury and in writing.
4.5 The MASTER DISTRIBUTOR shall have the right to obtain and/or retain the
rights to distribute other network appliances complimentary r to the
System from other vendors. It cannot obtain and/or retain the rights to
distribute products that compete directly with the System.
4.6
Section 5: MASTER DISTRIBUTOR's Obligations
5.1 MASTER DISTRIBUTOR agrees to purchase Systems for the sole purpose of
reselling them to Customers.
5.2 The MASTER DISTRIBUTOR must be certified in accordance with the
Certification Program described in Exhibit C. Even if the MASTER
DISTRIBUTOR has completed the Certification Program, WARP has final
authority to decide if the MASTER DISTRIBUTOR is to be given
certification.
5.3 The MASTER DISTRIBUTOR shall participate in WARP's relevant sales,
pre-sales and technical training programs.
5.4 The MASTER DISTRIBUTOR shall be resposible for the installation of the
System at the Customer's location.
5.5 The MASTER DISTRIBUTOR shall provide and be responsible for basic
technical support services to the Customer with respect to the
installation of the System and first line of after sale support.The
MASTER DISTRIBUTOR will perform such services in a professional and
xxxxxxx-like manner and will insure that it's resellers and systems
integrators provide the same high level of service.
5.6 MASTER DISTRIBUTOR agrees to purchase a demonstration unit and related
servive for purposes of demonstration and support. The price of this unit
is specified in Exhibit B.
5.7 MASTER DISTRIBUTOR agrees to purchase a WARP Service Level Agreement
(SLA) for each end customer that purchases the System in Japan.. The
pricing of this support is provided in Exhibit B. The WARP Service Level
Agreement is attached as an accompanying document.
5.8 MASTER DISTRIBUTOR agrees to insure that any reseller or systems
integrator that it distributes the System to for resale is properly
trained and certified according to programs that it puts in place that
are no less comprehensive than WARP's training programs.
5.9 MASTER DISTRIBUTOR agrees to make it mandatory that each reseller or
systems integrator is required to purchase one unit for internal
demonstration and support purposes.
5.10 MASTER DISTRIBUTOR agrees to prepare a sales and marketing plan with each
reseller or systems integrator outlining sales targets and specifying the
intended investment reseller or systems integrator plans on making in
promoting and selling WARP's products. This document will be provided to
WARP upon completion. MASTER DISTRIBUTOR will work with reseller and
systems integrator in achieving sales targets.
5.11 MASTER DISTRIBUTOR agrees to use it's best efforts to achieve the
following sales targets: 5 units in Q3 2002; 10 units in Q4 2002; 15
units in Q1 2003.
Section 6: Duration, Renewal and Termination of Agreement
6.1 Duration of Agreement. The term of this Agreement shall commence on the
Effective Date and, unless terminated by either party as set forth
herein, shall remain in full force and effect through March 31, 2003
6.2 Renewal. . If MASTER DISTRIBUTOR achieves minimum purchase targets of 20
units by March 31, 2002,(a minimum of 15 of which need to be supported by
purchase orders from resellers, systems integrators or end customers),
the agreement automatically extends for a period of 1 year, through March
31, 2004. This Agreement will then automatically renew for successive one
(1) year periods if mutually agreed minimum annual sales targets are
achieved unless terminated by either party in accordance to the procedure
described below.
6.3 Termination.
6.3.1 Terminations for Cause. In the event that either party or any of
its Agents breaches any of the terms of this Agreement and said breach is
not cured within thirty (30) days after written notice thereof to the
non-breaching party, the non-breaching party may terminate this Agreement
immediately by providing notice of termination to the breaching party.
6.3.2 Terminations without Cause. Either party may terminate this
Agreement at any time, after March 31, 2003 (March 31, 2003 if agreement
automatically extends), upon 90(ninety)days' written notice to the other
party.
6.4 Upon termination of this Agreement for any reason, MASTER DISTRIBUTOR
shall immediately return to WARP all unsold Systems (if any) provided by
WARP in advance of receiving purchase order from MASTER DISTRIBUTOR, and
any media and documentation that relate to the design, development,
operation, testing or use of the System or any additions or modifications
thereto. MASTER DISTRIBUTOR agrees to certify its compliance with the
foregoing promptly upon WARP's request. In such event that WARP terimates
the agreement, it will repurchase at MASTER DISTRIBUTORS prices all
products which are, at the effective date of termination, in MASTER
DISTRIBUTORS inventory.
6.5 .
Section 7: Prices
7.1 MASTER DISTRIBUTOR may set the prices paid to it by Customers for the
System it sells to them, within the following parameters, unless agreed
otherwise: 7.1.1 The MASTER DISTRIBUTOR's margin will be set at a maximum
margin of__100___% over the wholesale price; and the wholesale price of
the System is set out in Exhibit B; and 7.1.2 The MASTER DISTRIBUTOR has
the authority to reduce this margin and to unilaterally lower the retail
price paid to it by Customers as a part of the MASTER DISTRIBUTOR's sales
or marketing strategy. The MASTER DISTRIBUTOR shall in no way interpret
this maximum margin as a suggested minimum price and is actually
encouraged to reduce this price to enhance the appeal of the System to
its Customers.7.1.3WARP has the right to revise its prices to MASTER
DISTRIBUTOR MONTHLY, with thirty (30) days' written notice. Such
revisions shall apply to orders received by WARP on or after the
effective date of the revision. WARP shall price new products at the time
of their introduction to market. The MASTER DISTRIBUTOR shall purchase
Products at WARP's Distributor prices and terms which are in effect at
the time the order is received from the MASTER DISTRIBUTOR. WARP will not
announce to the public a price increase for thirty (30) days after
announcement to MASTER DISTRIBUTOR. In the event of a price decrease, all
undelivered orders shall be billed at the lower price and WARP shall
reimburse MASTER DISTRIBUTOR in an amount equal to the price decrease for
all products in it's inventory. The MASTER DISTRIBUTOR shall have thirty
days after the effective date of the price decrease to submit its claim.
Upon verification of such claim, WARP shall issue a credit to the MASTER
DISTRIBUTORS account.
7.2
7.3 MASTER DISTRIBUTOR shall be responsible for paying all taxes
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WARP MASTER DISTRIBUTOR Master Distribution Agreement
of any nature which become due with regard to the distribution or sale
of the System to Customers, except for taxes on WARP 's income,
irrespective of which party may be responsible for reporting or
collecting such taxes.
7.4 WARP will ship orders to MASTER DISTRIBUTOR F.O.B., WARP's domestic
shipping point. For orders where WARP is directed to by MASTER
DISTRIBUTOR to ship direct to MASTER DISTRIBUTOR WARP will invoice MASTER
DISTRIBUTOR for all shipping charges and such invoices will be due and
payable by MASTER DISTRIBUTOR by thirty (30) days from the date of such
invoice.
7.5 STOCK ROTATION / RETURNS Within thirty (30) days after the end of each
six (6) month period during the term of this Agreement (beginning with
the effective date hereof), MASTER DISTRIBUTOR may return a quantity of
Products to Manufacturer for credit provided that the total credit shall
not exceed 10% of the net sales dollars invoiced by WARP to MASTER
DISTRIBUTOR during the said six (6) month period. The credit to be issued
in respect of Product returned shall be the actual net invoice price
charged for same by WARP to MASTER DISTRIBUTOR less any prior credits
granted by WARP to MASTER DISTRIBUTOR for the said Product. All Products
returned in accordance with this provision must be unused and in
factory-shipped condition. MASTER DISTRIBUTOR has the right to stock
rotate 100% of the first order of 5 units. This amount will be credited
to the purchase of replacement products.
7.6 WARP may discontinue the manufacturer and/or sale of any Product. In the
event of any such discontinuance, WARP shall give MASTER DISTRIBUTOR at
least sixty (60) days advance written notice thereof. Distributor may, in
its sole discretion, within sixty (60) days after receipt of such notice,
notify WARP in writing of MASTER DISTRIBUTOR's intention to return any or
all Products in its inventory which have been so discontinued. Distributor
shall receive full credit for all such Products so returned. Any such
credit shall be in the amount of the actual net invoice price paid by
Distributor for the discontinued Products less any prior credits. All
freight charges shall be paid by WARP.
7.7 MASTER DISTRIBUTOR can return initial stock of units and demonstration unit
by September 20, 2002 if the WARP 2063 does not increase performance as
measured on supported platforms by reduced latency and increased capacity.
Section 8: Advertising Program
8.1 Cooperative Advertising Program. WARP shall grant a cooperative
advertising allowance of up to 1% of the Customer sales price for Systems
(the "Cooperative Advertising Allowance"). Such allowance is to be
available to the MASTER DISTRIBUTOR for the purposes of promotion and
marketing of System consistent with the current terms and conditions of
WARP's Cooperative Advertising Program fully described in Exhibit D
attached hereto. WARP may modify any such terms and conditions, or
terminate such program, on at least 30 days' written notice to the MASTER
DISTRIBUTOR.
8.2 Upon termination of this agreement by either party, the Cooperative
Advertisng Allowance shall expire immediately. No funds will be given or
credited to the MASTER DISTRIBUTOR after such termination.
Section 9: Relationship of Parties During the Term of this Agreement
9.1 MASTER DISTRIBUTOR, its agents and employees shall under no circumstances
be deemed agents or representatives of WARP. Other than as set forth in
this Agreement, neither WARP nor MASTER DISTRIBUTOR shall have any right
to enter into any contract or commitment in the name of, or on behalf of,
the other, or to bind the other in any respect whatsoever. The parties
shall have no right or authority, either express or implied, to assume or
create, on behalf of the other party, any obligation or responsibility of
any kind or nature.
Section 10: Ownership
10.1 MASTER DISTRIBUTOR acknowledges that WARP owns all rights, title and
interest, including, without limitation, all patent, copyright,
trademark, trade secrets, intellectual property, moral rights and other
proprietary rights, in and to the System and the propriatary technology
incorporated into the System. Nothing herein shall be deemed as giving
the MASTER DISTRIBUTOR any rights in or to the System or the propriatary
technology incorporated into the System.
10.2 MASTER DISTRIBUTOR shall not have access to or modify the source code of
the System, nor shall it translate, reverse engineer, decompile,
disassemble, or create derivative works based on the System or the
propriatary technology incorporated into the System.
10.3 MASTER DISTRIBUTOR shall not remove any copyright notice, patent or
patent pending notice, or other proprietary or restrictive notice or
legend contained or included in any material provided by WARP.
10.4 The use by MASTER DISTRIBUTOR of the property rights mentioned herein is
authorized only for the purposes of marketing and selling the System.
MASTER DISTRIBUTOR will not use, authorize, or permit the use of the name
WARP or any other trademark owned by WARP as part of its firm, corporate
or business name or in any other way, without the prior written consent
of WARP.
Section 11: Confidentiality.
11.1 MASTER DISTRIBUTOR shall not disclose any information concerning the
System to any person other than those employees, Affiliates, or
consultants who use the System as part of the sales and marketing effort.
11.2 Both parties, using utmost care, shall hold in trust for each other and
shall not use or disclose to any third party any Confidential Information
which may be disclosed in connection with performance under this
Agreement, and both parties shall employ all reasonable measures to
protect Confidential Information from unauthorized or inadvertent
disclosure, including measures no less protective than those measures
that each party employs to protect its own information of a like nature.
11.3 Unless required by law, and except to assert their rights hereunder or
for disclosures to employees with a need to know, the parties agree not
to disclose the terms of this Agreement or matters relating thereto to
any third party without the prior written consent of the other party.
11.4 All provisions of this Section and of the NDA shall remain in effect and
survive the termination or expiration of this Agreement. In the event of
any conflict between the provisions of this Agreement and those of the
NDA, the provisions of the NDA shall take precedence.
Section 12: Promotion
12.1 WARP may refer to MASTER DISTRIBUTOR by name in its filings with the
Securities and Exchange Commission, its press releases and its
advertising and promotional materials in connection with MASTER
DISTRIBUTOR'S business association with WARP.
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Section 13: Product Warranty
13.1 WARP represents, warrants and covenants that it has full title to and
ownership of the System and the propriatary technology incorporated into
the System, free and clear of liens, claims and encumbrances.
13.2 WARP agrees to indemnify, defend and hold harmless the MASTER
DISTRIBUTOR, its directors, officers, employees and agents, and defend
any action brought against same with respect to any claim, demand, cause
of action, debt or liability, to the extent that such action is based
upon a claim arising our of or relating to any infringement of a
copyright, trademark, trade secret, patent or other intellectual property
right of any third party as a result of the MASTER DISTRIBUTOR'S use of
the System in accordance with this Agreement. MASTER DISTRIBUTOR agrees
to furnish WARP with prompt notice of such infringement claim, whereupon
MASTER DISTRIBUTOR hereby authorizes WARP to defend such claim and agrees
to cooperate and assist WARP fully in such defense, at WARP'S expense.
13.3 Indemnification. MASTER DISTRIBUTOR agrees to indemnify and hold WARP
harmless from any liability, loss, damage, cost or expense (including
reasonable attorney's fees and costs) incurred by WARP arising out of a
claim by any third party against WARP as a result of the activities of
the MASTER DISTRIBUTOR. The obligations of the MASTER DISTRIBUTOR
hereunder shall survive the termination of this Agreement.
13.4 THE SYSTEM IS PROVIDED "AS IS". EXCEPT AS EXPRESSLY SET FORTH ABOVE IN
SECTION 13.1, WARP HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WARP
DOES NOT WARRANT THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED
OR ERROR FREE.
13.5 LIMITATION OF LIABILITY. EXCEPT FOR WARP'S OBLIGATIONS UNDER SECTION
13.2, IN NO EVENT SHALL WARP'S LIABILITY TO MASTER DISTRIBUTOR OR ANY
THIRD PARTY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT
ACTUALLY RECEIVED BY WARP HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS.
EXCEPT IN THE EVENT OF A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL ANY
PARTY BE LIABLE TO ANOTHER PARTY OR ANY THIRD PARTY FOR ANY INTERRUPTION
IN THE OPERATION OF SUCH PARTY'S BUSINESS, DATA, COSTS OF PROCUREMENTS OF
SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES UNDER ANY CAUSE OF ACTION, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED HEREIN.
Section 14: Force Majeure
14.1 Neither WARP nor MASTER DISTRIBUTOR shall be liable for any failure,
inability or delay to perform hereunder, if such failure, inability or
delay is due to war, strike, fire, explosion, sabotage, accident,
casualty, government law or regulation or any other cause beyond the
reasonable control of the party so failing, and if due diligence shall be
used in resuming performance.
Section 15: Waiver
15.1 The failure of the parties in any instance to insist upon strict
performance of any provision of this Agreement shall not be construed to
be a waiver or relinquishment of all provisions or a waiver or
relinquishment of a right to insist upon strict performance in the
future; rather, such strict performance shall continue in full force and
effect.
Section 16: Modifications
16.1 Except as otherwise explicitly provided herein, this Agreement sets forth
the entire understanding of the parties; any amendment, modification or
waiver of any provision of this Agreement, or consent to any departure
from the terms and conditions of this Agreement, must be in writing and
signed by the parties hereto in order to be effective. Any such
amendment, modification or waiver shall be effective only in the specific
instance and for the specific purpose stated.
Section 17: Notices
17.1 All notices under this Agreement shall be in writing and sent by mail,
e-mail or facsimile, addressed as follows:
WARP: Xxxxx Xxxxxx
WARP Solutions, Inc.
000 Xxxx 00 Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XXX
E-mail: xxxxxxx@xxxxxxxxxxxxx.xxx
Fax: (000) 000-0000
Tel. (000) 000-0000
MASTER DISTRIBUTOR:
Yutaka Shimowada, Director, Business Development
Macnica Building #2 0-0-0 Xxxx-Xxxxxxxx, Xxxxxx-Xx Xxxxxxxx Xxxx,
000-0000 Xxxxx
Xxxxx-x@xxxxxxxx.xxxxxxx.xx.xx
81 45 476 1960
00 00 000 0000 Fax
17.2 Notices shall be effective upon receipt. The address indicated above for
either party may be changed by prior written notice to the other party.
Section 18: Severability
18.1 If any provision of this Agreement is determined to be invalid for any
reason, such determination shall not affect the validity of the remaining
provisions hereof, which shall continue in full force and effect. The
invalid term or provision shall be replaced by such valid term or
provision as comes closest to the intention underlying the invalid term
or provision.
Section 19: Jurisdiction
19.1 The interpretation, construction and effect of this Agreement shall be
governed and construed in all respects in accordance with the Laws of
United States, the State of New York without regard to its conflicts of
law principles or to the United Nations Convention on Contracts for the
International Sale of Goods, and the parties hereby submit to the
exclusive jurisdiction of the state and federal courts of the State of
New York. MASTER DISTRIBUTOR consents to a non-jury trial.
Section 20: Non-solicitation
20.1 During the term of this Agreement and for twelve (12) months thereafter,
MASTER DISTRIBUTOR shall not induce or influence, or attempt to induce or
influence, any person who is engaged as an employee or consultant of WARP
to terminate his or her engagement with WARP. MASTER DISTRIBUTOR shall
not be in violation of this provision if a WARP employee or consultant
responds to a public advertisement for employment.
20.2 During the term of this Agreement and for twelve (12) months thereafter,
WARP shall not induce or influence, or attempt to induce or influence,
any person who is engaged as an employee or consultant of MASTER
DISTRIBUTOR to terminate his or her engagement with MASTER DISTRIBUTOR.
WARP shall not be in violation of this provision if a MASTER DISTRIBUTOR
employee or consultant responds to a public advertisement for employment.
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Section 21: Entire Agreement
21.1 This Agreement, the attached Exhibits hereto, and any agreement between
the parties expressly identified herein, constitute the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
Section 22: Non-Assignability
22.1 This Agreement shall be binding on the parties hereto. Neither party may,
or shall have the power to, assign this Agreement without the prior
written consent of the other party, and any assignment made without such
consent shall be void and of no effect as between the parties and shall
be deemed a breach of this Agreement. Notwithstanding the foregoing,
either party, without the prior written consent of the other party, shall
have the right to assign or sublicense this Agreement and any right or
obligation hereunder to an entity which acquires all or substantially all
of the assets of such party or to any successor in a merger or
acquisition of such party, during the term of this Agreement.
Section 23: Conflict of Provisions
23.1 In the event of a conflict between the provisions of any Exhibit hereto
and the provisions set forth in the body of this Agreement, the
provisions of this Agreement shall govern.
Section 24: Section Numbers and Headings
24.1 The section numbers and headings used herein are for information only and
shall not affect the interpretation of any provision of this Agreement.
Section 25: Binding Effect
25.1 This Agreement shall be binding upon and inure to the benefit of WARP and
its authorized successors and assigns, under this Agreement, and MASTER
DISTRIBUTOR and its authorized successors and assigns, under this
Agreement.
Section 26: Survival
26.1 The provisions set forth under Section 10, 11, 13 and 20 in this
Agreement shall survive the expiration, termination or rescission of this
Agreement and continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
WARP SOLUTIONS, INC. MASTER DISTRIBUTOR
By:
----------------------------- -----------------------------
(Authorized signature) (Authorized signature)
Name: /S/ Xxxxxxx Xxxxxxxxx
---------------------------- -----------------------------
(Name of signer, printed) (Name of signer, printed)
Title: Company President
-------------------------- -----------------------------
(Title of signer, printed) (Title of signer, printed)
Date:
---------------------------- -----------------------------
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