SOFTWARE ASP RESELLER AGREEMENT
BETWEEN
ALPHA CENTURY HOLDINGS LIMITED
AND
TAIKANG CAPITAL MANAGEMENTS CORPORATION
(D.B.A Taikang Insurance Agencies Managements in China)
SOFTWARE ASP RESELLER AGREEMENT
THIS SOFTWARE ASP RESELLER AGREEMENT (the "Agreement"), dated as of May 3rd
2004, is between Taikang Capital Managements Corp, a BVI corporation with its
principal place of business located in China Do Business As Taikang Insurance
Agencies Managements ("Reseller" or "ASP Reseller"), and Alpha Century Holdings
Ltd , a BVI corporation with an office located at Hong Kong ("Alpha").
RECITALS
WHEREAS, Alpha is a manufacturer of a variety of software products for
computer telephony and voice response;
WHEREAS, Reseller is engaged in the resale of products of a nature similar
to those marketed and sold by Alpha or engaged in the integration of such
similar products into voice messaging systems designed, manufactured and
marketed by the Reseller and/or third parties;
WHEREAS, Reseller desires to purchase certain computer telephony SMS/MMS
and voice response Call Center CRM System and voice response products of Alpha
from time to time for the purpose of reselling such products either individually
or as an integrated component of Reseller's proprietary voice messaging system,
and Alpha desires to sell such products to Reseller in accordance with the terms
and provisions set forth in this Agreement; and
WHEREAS, Alpha desires to appoint Reseller as its exclusive ASP reseller to
market such computer telephony SMS/MMS and voice response Call Center CRM System
products within the Territory (as defined below) and Reseller accepts such
appointment on the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS
"ASP Reseller" shall mean Application Service Provider reseller.
"Customer" shall mean any purchaser of a sublicense for the Products
bundled with or without other products from Reseller who has accepted the
Software License Agreement permitting use of the Products under certain
specified terms and conditions. Such Customers may be either an End User or
a Permitted Reseller of the Products.
"Documentation" shall mean user manuals, training materials, product
descriptions and specifications, brochures, technical manuals, license
agreements, supporting materials and other printed information relating to
the Products, whether distributed in print, electronic, or video format.
"End User" shall mean any Customer which will use the Products for its own
use and not for resale or remarketing.
"Permitted Reseller" shall mean a Customer to whom Reseller grants the
rights to further sublicense the Products to an End-User subject to the
terms of this Agreement and the Reseller Sublicense.
"Products" shall mean those software products listed in Schedule A attached
hereto, in their most current versions, including any other related
materials and/or equipment described in Schedule A. Alpha may amend
Schedule A from time to time upon thirty (30) days' prior written notice as
updates or new releases of the Products are provided.
"Reseller Sublicense" means the license granted by Reseller to Customers to
use the Products subject to the terms and conditions set forth herein and
in the Software License Agreement.
"Software License Agreement" means the license agreement between Reseller
and a Customer to use the Products subject to the terms and conditions
therein, substantially in the form of Schedule F attached hereto.
"Technical Support Services" means any maintenance or technical support
services performed or to be performed by Alpha, as more specifically set
forth in Section 5 hereof.
"Basic support" means providing information about installation procedures
and functionality of the Products.
"Territory" shall mean those territories listed in Schedule B attached
hereto.
"Update" shall have the meaning set forth in Section 5.5 hereof.
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2. APPOINTMENT AND AUTHORITY OF RESELLER
2.1 Appointment. Alpha hereby grants to Reseller the exclusive right and
license to distribute Products during the Term within the Territory,
together with any updates or enhancements to the Products and any new
releases related to the Products. This license includes the right to
market, demonstrate, advertise, promote and distribute the Products to
Customers (collectively referred to herein as "Reseller") and also to
use and integrate the Products into Reseller's own computer telephony
and voice messaging systems and products for resale to Customers.
Charges, prices, quantities and discounts, if any, for Products to be
used for Reseller's Internal Use shall be determined as set forth in
Schedule D, or as otherwise mutually agreed upon by the parties in
writing, and may be confirmed at the time of order. Reseller agrees
that it will sell sublicenses to the Products only in conjunction with
a Customer's acceptance of the Software License Agreement enclosed or
electronically transmitted with the Products, which Software License
Agreement limits the Customer's use and protects the rights of Alpha
to the Products. In no event shall Reseller furnish the Products or
Documentation prior to Alpha's acceptance of Reseller's purchase order
for the granting of a Reseller Sublicense, which acceptance shall not
be unreasonably withheld. Reseller shall keep correct and complete
records of each Customer who has been granted a Reseller Sublicense
and furnished with Products (including Updates) and related documents.
Notwithstanding anything to the contrary herein, nothing in this
Agreement shall be deemed to limit or prevent Alpha, directly or
indirectly, from marketing, distributing, licensing or selling the
Products throughout the world, including in the Territory. Except as
otherwise authorized in writing by Alpha, Reseller shall not engage in
any Reseller or engage in other activities to sell, sublicense or
distribute the Products outside the Territory.
2.2 Sales Efforts. Reseller agrees to pursue aggressive sales policies and
procedures to realize the maximum sales potential for the Products in
the Territory, and shall maintain during the term of this Agreement
the minimum sales commitments described in Schedule C attached hereto
(the "Minimum Commitments"). If the Reseller shall fail at any time to
attain the applicable Minimum Commitments, Alpha may terminate this
Agreement in accordance with the terms of Section 8 hereof.
2.3 Resellers Representatives. Reseller shall not be entitled to appoint
third party representatives for solicitations of the Products without
the prior written consent of Alpha.
2.4 Independent Contractor. Reseller is not, and shall not directly or
indirectly hold itself out as, an agent, partner, employee, franchisee
or joint venturer of Alpha. The relationship of Alpha and Reseller
established by this Agreement is that of independent contractors, and
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nothing contained in this Agreement shall be construed to mean that
either party has the authority to bind or otherwise obligate the other
party. All financial obligations associated with Reseller's business
are the sole responsibility of Reseller. Except to the extent provided
in Section 5 hereof, all sales and other agreements between Reseller
and Customers shall be the sole responsibility and obligation of
Reseller and have no effect on the obligations of Alpha and Reseller
under this Agreement.
2.5 Payment Terms. Reseller shall pay Alpha a monthly payment of
US$110,000 for a consecutive 36 months for the exclusive right and
license to distribute the Products in the Territory. Payment shall be
made by Reseller within thirty (30) days after date of invoice. Any
invoiced amount not paid when due shall be subject to a interest of
one and one half percent (1.5%) per month. Payments from Reseller to
Alpha in accordance with the terms of this Agreement shall in no way
be delayed or conditioned upon payment to Reseller by the Customers.
In addition, the Reseller shall pay Alpha a monthly maintenance fee of
US$10,000 for any extra ordinary work for a consecutive 36 months.
3. GRANT OF LICENSE TO PRODUCTS
3.1 License to Reseller. Alpha hereby grants, an exclusive,
nontransferable, royalty free, perpetual license to Reseller to use
the Products only in accordance with the terms and conditions set
forth herein. Reseller shall have the right to use the Products for
Reseller's Internal Use, and/or as may be necessary to develop or
create supplemental products to be used with and possibly sold as a
package with the Products, and for service of Reseller's Customers.
Alpha shall not be responsible or liable for errors, malfunctions or
performance of any supplemental products created by Reseller as
permitted hereunder. It is agreed and understood that any such
supplemental products shall become the property of Reseller. Subject
to Section 8.3(d) hereof, the terms and conditions of this Section 3.1
shall survive the termination or expiration of this Agreement.
3.2 Title to Products. By virtue of this Agreement, Reseller acquires the
right to use the Products for Reseller's Internal Use and for purposes
of engaging in the Reseller of the Products and does not acquire any
other rights or ownership. All rights, title and interest in the
Products (other than the Script Editor), including copies of the
Products delivered to Reseller by Alpha, shall at all times remain the
property of Alpha or Alpha's licensor. It is acknowledged that the
Alpha Script Editor is a shareware program available free of charge to
the public and may be accessed and downloaded from the Internet.
4. PURCHASE ORDERS BY BUYERS
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4.1 Issuance and Acceptance of Purchase Order buyers may issue to Reseller
from time to time during the Term one or more purchase orders
identifying the Products buyers desires to purchase from Reseller
directly.
4.2 Purchase Order Alterations or Cancellations. Prior to shipment of
Products, Reseller shall accept alterations or cancellation to a
purchase order to (i) change a location for delivery, (ii) modify the
quantity or type of Products to be delivered or (iii) correct
typographical or clerical errors.
4.3 Charges and Prices. Charges, prices, quantities and discounts, if any,
for Products shall be determined as set forth in Schedule D, or as
otherwise mutually agreed upon by the parties in writing, and may be
confirmed at the time of order.
4.4 Price Increase. Reseller shall have the right to increase prices from
time to time without written notice to Alpha.
4.5 Price Decreases. Reseller shall have the right to decrease prices from
time to time without written notice to Alpha.
4.6 Delivery and Acceptance of Products. Reseller shall, after a
reasonable time to inspect each shipment, accept the Products if the
Products and all necessary Documentation delivered to Reseller are in
accordance with the purchase order. Such reasonable time shall not
exceed ten (10) days. Any Products not ordered or not otherwise in
accordance with the purchase order may be returned to Alpha at Alpha's
expense. Alpha shall refund to Reseller within ten (10) business days
following notice thereof all monies paid in respect to such rejected
Products.
4.7 Taxes. Reseller shall be responsible for any and all franchise taxes,
sales or use taxes that may be applicable to the Products. When Alpha
has the legal obligation to collect such taxes, the appropriate amount
shall be added by Alpha to the invoice and shall be paid by Reseller
unless Reseller shall provide Alpha with an appropriate tax exemption
certificate. In addition, Reseller shall be responsible for any V.A.T.
tax which may be imposed on any sale of Products by Reseller to the
Customers.
5. TECHNICAL SUPPORT OBLIGATIONS
5.1 Reseller Training and Support. Reseller shall be responsible for the
training and support of Customers and may subcontract for such
training and support of Customers with Alpha in the manner and at the
cost set forth in Exhibit E hereto.
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5.2 Reseller Maintenance. Reseller shall be responsible for the
maintenance of the Products to Customers under current paid-up
maintenance contracts and shall not represent or suggest that Alpha
will be responsible for the maintenance of the Products. For purposes
of this Agreement, maintenance shall mean customer support and problem
resolution which does not require or otherwise call for source code
modification. Reseller or any Customer shall have the option to
contract with Alpha for software maintenance support services
("Technical Support Services"), in which case Alpha shall provide
Technical Support Services for the Products in the manner and at the
cost set forth on Exhibit E hereto by telephone, fax or electronic
transmission from Alpha's offices on a timely basis.
5.3 Alpha Training. Alpha agrees to provide to Reseller training for two
(2) staff members at Alpha's offices in China. Such orientation and
support training shall be at no cost to Reseller, except that Reseller
shall be responsible for all costs (including travel and board)
associated with the Reseller trainees attending such training
session(s) at Alpha's offices. Alpha agrees to provide to Reseller
additional training, as Reseller may request, in the manner and at the
cost set forth in Schedule E hereto.
5.4 Alpha Service. In consideration of the payment by Reseller or its
Customers of the amounts specified in Section 5.2 hereof for Technical
Support Services, upon receipt of written notice from Reseller or its
Customers specifying failures or errors found in a Product, and upon
receipt of such additional information as Alpha may reasonably
request, Alpha shall act in an expeditious manner to correct defects
in the current, unaltered release of such Product. Alpha is not
obligated to perform any investigation and/or correction of defects
found by Alpha to be (i) in other than a current, unaltered release;
(ii) caused by modification of the Products or use thereof in
combination with products (software or hardware) not provided by Alpha
or not authorized by Alpha; (iii) caused by Reseller's, and/or
Customers' improper or unauthorized use of the Products; or (iv) due
to extended causes such as, but not limited to, power failure or
electric surges.
5.5 Basic Support. Alpha provides the Reseller with Basic Support free of
charge. Basic Support is provided by telephone or email, during
regular business hours. Basic Support is (i) only provided to Reseller
staff that has successfully completed the relevant Alpha training
course and (ii) is only provided when information about the support
issue is not easily found in documentation provided by Alpha to the
Reseller or available on the Alpha Internet service.
5.6 Updates. Updates of software are charged at rates defined in
conjunction with each release. A full set of documentation is however
provided by Alpha to the Reseller at no charge. Following shipment of
the Update materials, the previous release shall remain "current" for
purposes of Section 5 for a period of ninety (90) days. Thereafter,
only the Update shall be current. Alpha will provide Reseller with
forty-five (45) days advance notice of new release schedules and
content. Reseller and its Customers shall have no rights to major new
separately priced applications of Alpha or its licensors which include
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new functionality and are not service related, which programs may
become the subject of a reseller and/or license arrangement upon
mutual agreement of the parties.
6. WARRANTIES, INDEMNITIES AND OTHER OBLIGATIONS OF ALPHA
6.1 Limited Warranty. Subject to the other provisions of this Section 6,
Alpha warrants that for a period of ninety (90) days following the
date of purchase (the "Warranty Period") the Products will function
substantially in the manner described in the applicable Documentation.
Notwithstanding anything contained herein to the contrary, the total
liability of Alpha under this warranty is limited, at the option of
Alpha, to any of the following:
(a) use of reasonable efforts to expeditiously repair any
Product, or parts thereof (as Alpha may see fit); or
(b) use of reasonable efforts to expeditiously replace any
Product, or parts thereof, or any shipment (as Alpha may see
fit) as to which any defect is claimed by Reseller and duly
verified by Alpha; or
(c) the refund of the amounts paid for the defective Product.
This limited warranty is void if Reseller violates the terms of this
Agreement, if defects are not in current, unaltered release of the
Products, or if failure of the Products has resulted from (i)
modifications of the Products or use thereof in combination with other
products (software or hardware) not provided by Alpha or not
authorized by Alpha; (ii) Products being subjected to accidents,
improper or unauthorized use; or (iii) extended causes such as, but
not limited to, power failure or electric surges.
6.2 Property Rights and Indemnification. Alpha hereby represents and
warrants that the Products and the sale and use of the Products does
not infringe upon any copyright, patent, trade secret or other
proprietary or intellectual property right of any third party, and
that there are no suits or proceeding, pending or threatened against
Alpha alleging any such infringement. Alpha shall indemnify and hold
Reseller, Reseller's subsidiaries and their respective officers,
directors, employees and agent harmless from and against any and all
actions, claims, losses, damages, liabilities, awards, reasonable
costs and expenses, which they or any of them incur or become
obligated to pay resulting from or arising out of any breach of the
foregoing warranty. Reseller shall inform Alpha of any such suit or
proceeding filed against Reseller and shall have the right, but not
the obligation, to participate in the defense of any such suit or
proceeding at Reseller's expense. If a Product or any part thereof
becomes, or in Alpha's opinion is likely to become, the subject of a
claim of infringement or the like under any patent, copyright or trade
secret law, Alpha shall have the right, at its option and expense,
either (i) procure for Reseller and its Customers the right to
continue to use the Product as set forth in this Agreement, or (ii)
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replace, to the extent Products are available, or modify the Product
to make its use non-infringing while being capable of performing the
same function without degradation of performance. Alpha shall have no
liability under this Section 6.2 for any infringement based on the use
of any Product, if the Product is used in a manner or with equipment
for which it was not reasonably intended. The obligations of Alpha
under this Section 6.2 shall survive the termination or expiration of
this Agreement.
6.3 Support Services Warranty. Alpha warrants that its Technical Support
Services will be performed expeditiously and in a workmanlike manner.
This warranty shall be valid for 30 days from the completion of the
service. The re-performance of services shall be Alpha's sole
obligations and Reseller's sole remedy in the event of a breach of
such warranty.
6.4 Alpha License Warranty. Alpha warrants it may lawfully grant the
licenses for the Products and has all necessary right, title or
interest to deal with all intellectual property rights contained in
this Agreement. Alpha further represents and warrants that Alpha has
all right, title, interest and/or marketing rights necessary to
provide the Products to Reseller. Alpha further represents and
warrants that it has not entered into any agreements or commitments
which are inconsistent with or conflict with the rights granted to
Reseller in this Agreement.
6.5 Limitations of Warranties. (a) No employee or agent of Alpha is
authorized to give a greater or different warranty than that set forth
herein.
(b) Portions of the Products are derived from third party
software licensed directly or indirectly for integration into the
Products and sublicensing. No such third party warrants the Products
or any such portion, assumes any liability regarding use of such
portion of the Products, or under takes to furnish any support or
information relating to such portion or the Products.
(c) Alpha makes no warranty of any kind with respect to any of
Reseller's products. The warranties set forth in this Section 6 are
provided only to Reseller and may not be passed through to Reseller's
Customers in Alpha's name.
6.6 DISCLAIMER OF WARRANTIES. THE EXPRESS WARRANTIES SET FORTH IN THIS
SECTION 6 ARE THE ONLY WARRANTIES MADE BY ALPHA WITH RESPECT TO THE
PRODUCTS AND THE TECHNICAL SUPPORT SERVICES. ALPHA MAKES NO OTHER
WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE,
AND, SPECIFICALLY, MAKES NO WARRANTY OF MERCHANTABILITY OF FITNESS FOR
A PARTICULAR PURPOSE. ALPHA'S EXPRESS WARRANTIES SHALL NOT BE
ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY
SHALL ARISE OUT OF, ALPHA RENDERING TECHNICAL OR OTHER ADVICE OR
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SUPPORT SERVICE IN CONNECTION WITH THE PRODUCTS.
6.7 LIMITATION OF LIABILITY. (A) IN NO EVENT SHALL ALPHA OR ITS LICENSORS
BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR
INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING
FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE
OF THE PRODUCTS, TECHNICAL SUPPORT SERVICES OR OF ANY OTHER
OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT ALPHA HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) NOTWITHSTANDING SECTIONS 6.1, 6.2 AND 6.3 ABOVE, ALPHA'S
LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR
IN CONNECTION WITH THE PRODUCTS, TECHNICAL SUPPORT SERVICES OR THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNTS ACTUALLY PAID TO ALPHA
BY RESELLER OR CUSTOMERS FOR THE PRODUCTS AND/OR TECHNICAL SUPPORT
SERVICES THAT GAVE RISE TO SUCH CLAIM.
6.8 Materials. Alpha shall promptly provide the Reseller with marketing
and technical information concerning the Products as well as, to the
extent existing and available, reasonable quantities of brochures,
instructional material, advertising literature, and other Product
data, with all such material printed in the English language, within a
period of thirty (30) days following execution of this Agreement.
7. WARRANTIES, INDEMNITIES AND OTHER OBLIGATION OF RESELLER
7.1 Representation and Warranty. Reseller represents and warrants that (i)
Reseller has the right and authority to enter into and perform this
Agreement and (ii) Reseller will indemnify and hold harmless Alpha and
its successors and assigns from and against all costs, damages and
claims (including reasonable attorney fees and expenses) arising from
any breach by Reseller and any representation, warranty or agreement
of Reseller hereunder, or based upon a claim that the manufacture or
license of any Product which is modified, altered or combined with any
equipment or software by Reseller or any of its Customers (and not
supplied by Alpha) constitutes an infringement because of such
modification, alteration or combination.
7.2 Forecasting. Reseller shall submit to Alpha at least thirty (30) days
prior to the beginning of each calendar quarter during the Term, a
revenue forecast for the ensuing twelve (12) month period so as to
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permit Alpha to effectively ensure Product availability to the
Reseller. If during the Term the Reseller does not satisfy the Minimum
Commitments, Reseller shall provide the reasons and Alpha reserves the
right to terminate the Agreement in accordance with Section 8.2
hereof.
7.3 Promotion of the Products. Reseller shall (i) maintain a sales and
marketing program in the Territory to promote the programs, (ii)
perform all reasonably necessary promotion and advertising of the
Products and (iii) in general, utilize its reasonable efforts to
effect the maximum amount of gross revenues of the Products. Such
promotion shall include but not be limited to preparing promotional
materials in appropriate languages, participating in appropriate trade
shows, and soliciting orders from Customers for the Products.
7.4 Reseller Misrepresentations. Reseller shall not make any false or
misleading representations to Customers, or others regarding Alpha or
the Products. Reseller shall not make any representations, warranties
or guarantees with respect to the specifications, features or
capabilities of the Products that are not consistent with the
Documentation accompanying the Products or the Warranties, disclaimers
and limitations of liability as set forth in Section 6 hereof.
7.5 Documentation. Reseller will distribute only documentation produced by
Alpha, reproduced under license hereof or approved by Alpha to
describe the Products, its capabilities or operations, except to the
extent that such documentation describes Reseller's customized
features or Reseller's specific issues.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall remain in full force and effect for an
initial term commencing on the date hereof and extending for a period
of thirty-six (36) months (the "Term"), unless terminated earlier in
accordance with the terms of this Agreement. This Agreement shall
automatically renew for consecutive three (3) year periods (each, an
"Extension Period") based upon the terms and conditions then contained
in this Agreement, unless either party provides written notice to the
other party no later than ninety (90) days prior to the end of the
Term or the then-current Extension Period of its intent to terminate
this Agreement or modify the terms thereof, in which case (i) the
parties shall negotiate, without obligation, the modifications to this
Agreement or (ii) this Agreement shall terminate as of the end of such
Term or Extension Period, as applicable. Hereafter, the Term and any
Extension Period may be collectively referred to as the "Term".
8.2 Termination. This Agreement may also be terminated:
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(a) by Alpha, in the event that Reseller fails to make payments
when due under this Agreement and fails to remedy such breach within
five (5) days after written notice of such breach is provided to
Reseller;
(b) by either party, if the other party breaches any of its
obligations under this Agreement (other than Reseller's obligations to
pay amounts due under this Agreement) and fails to remedy such breach
within thirty (30) days after written notice of such breach is
provided to such other party;
(c) by either party, effective immediately and without notice, if
(i) a receiver, trustee or liquidator of the other party is appointed
for any of the properties or assets of the other party; (ii) either
party makes a general assignment for the benefit of its creditors
(iii) either party files a petition under the Bankruptcy Code or
statute for the reorganization of the other party or any arrangement
with its creditors or readjustment of its debt, or its dissolution or
liquidation, or such a petition is filed against the other party and
is not dismissed within forty-five (45) days thereafter; or (iv)
either party ceases doing business or commences dissolution or
liquidation proceedings.
8.3 Rights Upon Termination or Expiration. (a) Termination or expiration
of this Agreement shall not affect Alpha's right to be paid for
invoices for Products already shipped and accepted by Reseller or
Reseller's rights to any credits or payments owed or accrued to the
date of termination or expiration.
(b) Alpha shall accept purchase orders from Reseller for
additional Products which Reseller has contractually obligated itself,
prior to termination to furnish to Customers, and does not have in its
inventory upon the termination or expiration of this Agreement;
provided Reseller notifies Alpha of any and all such transactions in
writing within ten (10) days following the termination or expiration
date.
(c) Upon termination or expiration of this Agreement, Reseller
shall discontinue holding itself out as a reseller of the Products.
(d) Upon termination or expiration of this Agreement, Reseller
shall continue to enjoy the license granted to it by Alpha pursuant to
Section 3.1 hereof provided that Reseller is not in breach of its
obligations under this Agreement.
8.4 Support Services after Termination. Following expiration or
termination of this Agreement, Alpha and Reseller shall cooperate in
the smooth transition of the provision of technical support to
Customers. To the extent any maintenance contracts of Reseller with
Customers have expired, Alpha may elect at its sole discretion to (a)
continue to have Reseller provide such services for a mutually agreed
upon fee; (b) appoint a new service provider in the Territory; (c)
Alpha may provide such services directly; or (d) Alpha may arrange to
provide such services by any other means as Alpha may determine.
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8.5 Survival of Terms. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration. The
termination or expiration of this Agreement shall not affect either
party's warranties, indemnifications, payments, credits or any other
matters set forth in this Agreement that should survive termination or
expiration in order to carry out their intended purpose, all of which
shall survive the termination or expiration of this Agreement.
9. PROPRIETARY RIGHTS AND CONFIDENTIALITY
9.1 Proprietary Rights. Reseller agrees and acknowledges that Alpha
Century Holdings Ltd. a corporation organized under the laws of
British Virgin Islands, is the owner of the Products and all related
documentation and any copies thereof, and of all copyright, trade
secret, patent and other intellectual or industrial property rights
therein. All copies of the Products made by Reseller shall contain
proper copyright and proprietary notices as may be determined and
required by Alpha from time to time, describing Alpha's proprietary
rights thereto. Reseller will not alter or remove or permit to be
altered or removed any notices of copyright or proprietary rights or
identification, which indicates Alpha's or its licensor's proprietary
rights in the Products. Reseller agrees that these notices may be
modified from time to time as reasonably required by Alpha or its
licensor.
9.2 Trademark Usage. Reseller is hereby authorized to use trademarks and
trade names of Alpha or its licensors used in connection with
advertising, promoting or distributing the Products. Reseller
recognizes Alpha or its licensors may have rights or ownership of
certain trademarks, trade names and patents associated with the
Products. Reseller will act consistently with such rights, and
Reseller shall comply with any reasonable, written guidelines when
provided by Alpha or its licensors related to such trademark or trade
name usage. Reseller will notify Alpha of any infringement of which
Reseller has actual knowledge. Reseller shall discontinue use of
Alpha's trademarks or trade names upon termination or expiration of
this Agreement, except as may be necessary to sell or liquidate any
final inventories of Product as permitted in accordance with this
Agreement. Reseller shall not use any Alpha trademarks as a trade
names or an element of a trade name or alter, modify or remove any
Alpha trademarks. At no time shall Reseller during or after the Term
of this Agreement challenge or assist others to challenge Alpha's
trademarks or the registration there of or attempt to register any
trademarks, marks or trade names confusingly similar to those of
Alpha. Alpha shall have the right to approve, in its sole discretion,
the use, and the manner of use, of any of its trademarks and trade
names.
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9.3 Confidential Information. As used in this Agreement, "Confidential
Information" shall mean all confidential, proprietary or secret
information of a party, including, without limitation, components,
parts, drawings, data, sketches, plans, programs, software (source
code and object code), specifications, techniques, processes,
algorithms, inventions and other information or material, owned,
possessed or sued by such party, and such other information designated
in writing as confidential by any party. Notwithstanding the
foregoing, Confidential Information shall not include any information
which (i) is or becomes part of the public domain through no act or
omission on the part of the receiving party, (ii) is disclosed to
third parties by the disclosing party without restriction on such
third parties, (iii) is in the receiving party's possession, without
actual or constructive knowledge of an obligation of confidentiality
with respect thereto, at or prior to the time of disclosure under this
Agreement, (iv) is disclosed to the receiving party by a third party
having no obligation of confidentiality with respect thereto, (v) is
independently developed by the receiving party, (vi) is released from
confidential treatment by written consent of the disclosing party, or
(vii) is required to be disclosed by law.
9.4 Confidentiality. Alpha and Reseller acknowledge and agree that either
party may acquire Confidential Information concerning the other party
during the Term, and hereby agree that they shall hold in confidence
and not disclose (except on a confidential basis to its employees or
agents who need to know and are bound to preserve the confidentiality
thereof) all Confidential Information received from the other party in
the manner and to the same extent as it holds in confidence its own
Confidential Information, and shall not use any such Confidential
Information, except for purposes contemplated by this Agreement. Each
party shall take all reasonable steps to safeguard the other party's
Confidential Information, and to ensure that no persons authorized to
have such access shall take any action which would be in violation of
this Agreement if taken by such party. Each party shall promptly
report to the other party any actual or suspected violation of this
Section 9.4 and shall take further steps as may reasonably be
requested by the other party to prevent or remedy any such violation.
9.5 Protection of the Products. The ideas and the expressions thereof
contained in the Products are confidential and proprietary information
and trade Secrets of Alpha and Reseller agrees that it will not
decompile, disassemble, or attempt in any way to reverse engineer the
Products or to develop a competing product based on the Products.
9.6 Equitable Relief. Because the unauthorized use or transfer of the
Products and Documentation may diminish substantially the value of
such materials and irrevocably harm Alpha if Reseller breaches any of
the provisions of this Section 9, Alpha shall be entitled to equitable
relief, including but not limited to specific performance, temporary
restraining order, preliminary injunction or other alternative relief
without the necessity of posting any bond or proving any damages, in
the event of any breach or anticipated breach by Reseller of the
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provisions of this Section 9. Such remedies shall not be deemed to be
the exclusive remedies for a breach or anticipated breach by Reseller
of the provisions of this Section 9, but shall be in addition to all
other remedies available at law or equity.
10. GENERAL PROVISIONS
10.1 Governing Law and Jurisdiction. This Agreement shall be governed by,
and construed in accordance with the laws of British Virgin Islands.
10.2 Dispute. All disputes, controversies or claims arising out of or
relating to this Agreement shall be settled in British Virgin Islands
court.
10.3 Entire Agreement. This Agreement, including the Schedules and Exhibits
attached hereto, sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and merges all prior
discussions between them. No modification of or amendment to this
Agreement, nor any waiver or any rights under this Agreement, shall be
effective unless in writing, and signed by the party to be charged.
10.4 Notices. Any notices required or permitted by this Agreement shall be
in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or five
(5) days after deposited in the mail, air postage prepaid, or in the
case of notice by telecopier (fax), when sent, or in the case of
overnight courier service, one business day after delivery to a
nationally recognized overnight courier service, addressed to the
parties at the address shown at the beginning of this Agreement and
such other address for which such party gives notice hereunder.
10.5 Force Majeure. Non-performance of either party shall be excused to the
extent that performance is rendered impossible by strike, fire, flood,
governmental acts of others or restrictions, failure of suppliers, or
any other reason where failure to perform is beyond the reasonable
control of and is not caused by the negligence of the non-performing
party.
10.6 Non-Assignability and Binding Effect. A mutually agreed consideration
for Alpha's entering into this Agreement is the reputation, business
standing, and goodwill already honored and enjoyed by Reseller under
its present ownership and accordingly Reseller agrees that its rights
and obligations under this Agreement may not be transferred or
assigned directly or indirectly without the prior written consent of
Alpha. Subject to the foregoing sentence, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
successors and assigns.
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10.7 No Waiver. No failure by either party to exercise, and no delay in
exercising, and no course of dealing with respect to, any right,
power, or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude
any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
10.8 Severability. In the event that any of the terms of this Agreement are
in conflict with any rule of law or statutory provision or are
otherwise unenforceable under the laws or regulations of any
government or subdivision thereof, such terms shall be deemed stricken
from this Agreement, but such invalidity or unenforceability shall not
invalidate or render unenforceable any of the remaining terms of this
Agreement which shall continue in full force and effect.
10.9 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each counterpart shall be deemed to be an original,
and all counterparts individually or together shall constitute one and
the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
signed by their duly authorized representatives as of the date first above
written.
TAIKANG CAPITAL MANAGEMENTS CORP. ALPHA CENTURY HOLDINGS LTD
/s/ Xxxx Xxx /s/ Xxxxxx Xxxx
---------------------------------------- --------------------------------------
Authorized Signature: Authorized Signature:
---------------------------------------- --------------------------------------
Name: Xxxx Xxx Name: Xxxxxx Xxxx
---------------------------------------- --------------------------------------
Address: #000, 0xx/X.,Xxxxxx Xxxx Xxxxxx Xxxxxxx: #1601, 0-0 Xxxxxxxxxxx Xxxxx,
Xxxx, Xxxxx Xxxxxxxx, Xxxxxxxxx, XXXXX TST, Kowloon, HONG KONG
---------------------------------------- --------------------------------------
Date: May 3, 2004 Date: May 3, 2004
---------------------------------------- --------------------------------------
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SCHEDULE A
----------
DESCRIPTION OF PRODUCTS
-----------------------
Current as of May 3rd 2004
CRM studio Application generator for CRM solutions.
MMS/Wave Editor Multimedia Message Service file editing tool
SCHEDULE B
----------
TERRITORY
---------
CHINA
SCHEDULE C
----------
MINIMUM COMMITMENTS
-------------------
MINIMUM SALES COMMITMENT: The Reseller agrees to purchase at least $1,000,000.00
(US Dollars) in Products during each year of the Term. The Reseller further
agrees to purchase at least 30% of the Minimum Sales Commitment in the first six
(6) months of each year during the Term.
If the Reseller shall fail at any time to attain the applicable Minimum
Commitments, Alpha may terminate this Agreement in accordance with the terms of
Section 8 hereof.
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SCHEDULE D
----------
CHARGES AND PRICES
------------------
--------------------------------------------------------------------------------
SMS STUDIO: SCRIPT EDITOR 3.0
--------------------------------------------------------------------------------
Downloaded via the Internet $0
--------------------------------------------------------------------------------
SMS STUDIO: CONTROL PANEL 3.0
--------------------------------------------------------------------------------
Price per "hardware" channel. $195
Price per "station" channel $50
Price per "software" channel $105
Price per "IP" channel $195
ADD ONS, PER PORT
HTML/FileConv. Per port. $30
ADD ONS, PER "ENGINE"
Fax - function. Per engine $30
LZW compression (Unisys GIF patent)* $0
Lernout & Hauspie: Voice rec. Per engine. $230
Lernout & Hauspie: TTS. Per engine. $230
T-NETIX SPEAKER VERIFICATION
Basic license per engine (one per system) $350
1000-4999 Enrollments 10.00
5000-9999 Enrollments $8.00
10000-99999 Enrollments $6.00
100.000-499.999 Enrollments $4.00
500.000-999.999 Enrollments $3.00
1000.000 Enrollments or more $2.00
--------------------------------------------------------------------------------
*Customer must show Unisys agreement.
--------------------------------------------------------------------------------
CT STUDIO DOCUMENTATION
--------------------------------------------------------------------------------
Script Editor Manual $30
Control Panel Manual $15
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ALPHA UTILITIES
--------------------------------------------------------------------------------
Alpha Wave Editor 1.16 $89
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ALPHA PACKAGES
--------------------------------------------------------------------------------
Special 1-port package software only $110
Special 2 port package with Dialogic card $647
Special 2 port package without Dialogic card $247
All packages include: Manuals for CP & SE + CD-rom.
--------------------------------------------------------------------------------
SCHEDULE E
----------
TECHNICAL SUPPORT FEES
----------------------
TRAINING
--------
Training Course Charges and Prices
--------------- ------------------
2 day training course for CT studio comprising
Alpha Script Editor and Alpha Control Panel ..........$625
TECHNICAL SUPPORT SERVICES
--------------------------
Consultation Description
------------------------
Support daytime during weekdays by phone,
fax or email, provided only to individuals
having participated in Alpha training course. ........Annual fee for support:
12% of initial order value
Support fees will be charged quarterly in advance for all products currently
delivered.
Technical support is optional.
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Schedule F
----------
SOFTWARE LICENSE AGREEMENT
IMPORTANT--READ CAREFULLY: THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT
BETWEEN YOU (EITHER AN INDIVIDUAL OR SINGLE ENTITY) AND THE SUPPLIER (REFERRED
TO HEREIN AS THE "LICENSOR") OF THE ALPHA SOFTWARE PRODUCTS DELIVERED HEREUNDER,
WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED
MATERIALS, AND "ONLINE" OR ELECTRONIC DOCUMENTATION ("SOFTWARE PRODUCTS"). BY
INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE PRODUCTS, YOU (ALSO REFERRED
TO HEREIN AS THE "LICENSEE") AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE
LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS SOFTWARE LICENSE
AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE PRODUCTS AND PROMPTLY RETURN THE
UNUSED SOFTWARE PRODUCTS TO THE PLACE OF PURCHASE FOR A FULL REFUND.
SOFTWARE PRODUCT LICENSE
The Software Products are protected by copyright laws and international
copyright treaties, as well as other intellectual property laws and treaties.
The Software Products are licensed, not sold.
ARTICLE 1: LICENSE GRANT AND LIMITATIONS
-----------------------------
1.1. GRANT OF LICENSE. Subject to the terms and conditions contained herein,
Licensor hereby grants, and Licensee hereby accepts, a non-exclusive
license to use the Software Products. Licensee shall not sublicense, lease,
transfer or otherwise exploit the Software Products, except that this
license may be transferred to an End User upon End User's acceptance of the
terms of the license in which case the tErm "Licensee" shall also include
such End User.
1.2. USE OF SOFTWARE. Licensee agrees to use the Software Products for its sole
and exclusive benefits, unless otherwise provided herein. In the event
Licensee neglects or fails to adhere to any of its obligations hereunder,
the license granted herein shall immediately terminate as provided in
Article 4 hereof.
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1.3. COPIES. Licensee may install and use one copy of the software component of
the Software Products on a single computer. Except as provided herein,
Licensee shall not copy any portion of the Software Products. Licensee may
make one copy ("backup copy") of the software component of the Software
Products for archival purposes. Licensee may not copy the printed materials
accompanying the Software Products. Licensee shall reproduce all original
copyright notice, patent notice, trademark, service xxxx, other proprietary
markings, and/or confidential legends on any backup copy of the Software
Products, including any modifications, adaptations, or conversions. A
license for the Software Products may not be shared or used concurrently on
different computers.
1.4. LICENSEE'S RESPONSIBILITIES. Licensee shall be exclusively responsible for
the supervision, management and control of its use of the Software
Products, including, but not limited to:
(a) assuring proper configurations of hardware and related equipment or
devices;
(b) establishing adequate operating methods; and
(c) taking reasonable care to satisfy its obligations for security under
this Agreement, including appropriate action between it and its
employees and/or agents and consultants to prevent misuse,
unauthorized copying, modification, or disclosure of the Software
Products. Licensee shall not disclose the results of any benchmark to
any third party without Licensor's and its licensor's prior written
approval.
1.5. LICENSE. The license granted herein shall remain in force for the useful
life of the Software Products unless terminated prior to that time as
provided herein. This Software License Agreement does not grant Licensee
any right to any enhancement or update.
1.6. MODIFICATIONS OR ADAPTATIONS. Licensee may not reverse engineer, decompile,
or disassemble the software components of the Software Products, except and
only to the extent that such activity is expressly permitted by applicable
law notwithstanding this limitation.
1.7. SINGLE PRODUCT. Each of the Software Products is licensed as a single
product. Its component parts may not be separated for use on more than one
computer.
1.8. UPGRADES. All updates, upgrades, enhancements, modifications and "fixes" to
the Software Products developed by Licensor after the date of sale of the
Software Products to Licensee shall be offered by Licensor or its licensors
to Licensee as a non-exclusive license at the normal rates for such
services offered by Licensor or its licensors, or as may be otherwise
agreed with Licensee. If any Software Product is an upgrade of a component
or a package of software programs that the Licensee licensed as a single
product, such Software Product may be used and transferred only as a part
of that single product package and may not be separated for use on more
than one computer.
ARTICLE 2: PROPERTY RIGHTS
---------------
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2.1. TITLE TO SOFTWARE. Licensee acknowledges and agrees that Licensor is Alpha
Century Holdings Limited, a corporation organized under the laws of British
Virgin Islands and the wholly owned subsidiary of Telecom Communication
Inc., an Indiana corporation, is the owner of the Software Products and any
copies thereof, and of all copyright, trade secret, patent and other
intellectual or industrial property rights therein.
2.2. COPYRIGHT OR OTHER MARKS. Licensee agrees not to remove, deface or destroy
any copyright, patent notice, trademark, service xxxx, other proprietary
markings, or confidential legends placed on or within any of the Software
Products.
ARTICLE 3: WARRANTY AND WARRANTY LIMITATIONS
---------------------------------
3.1. LIMITED WARRANTY. Licensor warrants that (a) the software component of the
Software Products will perform substantially in accordance with the
accompanying written materials for a period of thirty (90) days from the
date of receipt. Licensor does not warrant, however, that Licensee's use of
the Software Products will be uninterrupted or that the operation of the
Software Products will be error-free or secure. Some states and
jurisdictions do not allow limitations on duration of an implied warranty,
so the above limitation may not apply to you. To the extent allowed by
applicable law, implied warranties on the Software Products, if any, are
limited to thirty (90) days.
3.2. REMEDY FOR NON-CONFORMING SOFTWARE. Licensor's entire liability and your
exclusive remedy shall be, at Licensor's option, either (a) return of the
price paid, if any, or (b) repair or replacement of the Software Products
that do not meet Licensor's Limited Warranty. This Limited Warranty is void
if Licensee violates the terms of this Software License Agreement, if
defects are not in a current, unaltered release of the software Products,
or if failure of the Software Products has resulted from (i) modification
of the Software Products or use thereof in combination with other products
(software or hardware) not provided by Alpha or not authorized by Alpha;
(ii) the Software Products being subjected to accidents, or improper or
unauthorized use; or (iii) extended causes such as, but not limited to,
power failure or electric surges.
3.3. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
LICENSOR AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OF
IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKE NO
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR'S
EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO
OBLIGATION OR LIABILITY SHALL ARISE OUT OF, LICENSOR OR ITS LICENSOR'S
RENDERING TECHNICAL OR OTHER ADVICE OR SUPPORT SERVICE IN CONNECTION WITH
THE SOFTWARE PRODUCTS, IN WHICH CASE LICENSOR'S OR ITS LICENSOR'S LIABILITY
REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT
AGREEMENT. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
E-20
3.4. LIMITATION OF REMEDIES. LICENSEE AGREES THAT ITS EXCLUSIVE REMEDIES AND
LICENSOR'S ENTIRE LIABILITY WITH RESPECT TO THE SOFTWARE PRODUCTS, SHALL BE
AS SET FORTH HEREIN. LICENSEE FURTHER AGREES THAT LICENSOR AND ITS
LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR
LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS SOFTWARE LICENSE
AGREEMENT, THE PERFORMANCE OF THE SOFTWARE PRODUCTS, TECHNICAL SUPPORT
SERVICES OF ANY OTHER OBLIGATIONS RELATING TO THIS SOFTWARE LICENSE
AGREEMENT, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION
OF THIS SOFTWARE LICENSE AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT
ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE PRODUCTS. BECAUSE SOME STATES
AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY,
THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
ARTICLE 4: TERMINATION
-----------
Without prejudice to any other rights, Licensor may terminate this Software
License Agreement if Licensee fails to comply with the terms and conditions of
this Software License Agreement. In such event, Licensee must destroy all copies
of the Software Product and all of its component parts.
ARTICLE 5: GENERAL TERMS AND CONDITIONS
----------------------------
5.1. ENTIRE AGREEMENT; AMENDMENTS. This Software License Agreement represents
the complete agreement concerning this license between the parties and
supersedes all prior agreements and representations between them. Licensor
and Licensee agree that this Software License Agreement shall be modified
only by a writing duly executed by persons authorized to execute on their
behalf. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY
MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT
THOSE CONTAINED IN YOUR PURCHASE ORDER.
5.2. NON-WAIVER. Licensor and Licensee agree that no failure to exercise, and no
delay in exercising any right, power or privilege hereunder on the part of
either party shall operate as a waiver of any right, power or privilege.
Licensor and Licensee further agree that no single or partial exercise of
E-21
any right, power or privilege hereunder shall preclude its further
exercise.
5.3. ATTORNEYS' FEES. If any legal action is necessary to enforce the terms of
this Software License Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which that
party may be entitled. This provision shall be construed as applicable to
the entire Software License Agreement.
5.4. SEVERABILITY. If any provision of this Software License Agreement is held
to be unenforceable for any reason, such provision shall be reformed only
to the extent necessary to make it enforceable.
5.5. GOVERNING LAW. If the Software Products were acquired outside the British
Virgin Islands, then the laws of Hong Kong shall apply, and the Licensee
irrevocably agrees to the jurisdiction of the courts of Hong Kong for any
litigation which may arise hereunder. The application of The Convention of
Contracts for the International Sale of Goods is expressly excluded.
5.6. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions set forth in subparagraphs (a)
through (d) of the Commercial Computer-Restricted Rights clause at FAR
52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013, and in
similar clauses in the NAS FAR Supplement. Owner is Alpha Century Holdings
Limited.
