DISTRIBUTION AGREEMENT
Exhibit
10.24
THIS
AGREEMENT (the “Agreement”), made effective this 15th
day of August, 2008 (“Effective Date”) by and between E-Band Communications
Corp., a corporation duly organized under the laws of California, (hereinafter
“E-BAND”), and Dot VN, Inc., a corporation duly organized under the laws of the
State of Delaware (hereinafter “DOT VN”)
WHEREAS,
E-BAND manufactures and markets certain products and desires to increase the
sales of such products;
WHEREAS,
DOT VN desires to promote and sell such product; and
WHEREAS,
E-BAND is willing to appoint DOT VN and DOT VN is willing to accept such
appointment as distributor of E-BAND’S products in the territory defined
herein;
NOW,
THEREFORE, in light of the mutual promises and covenants hereinafter set forth
and for consideration the sufficiency and receipt of which is hereby
acknowledged, the parties agree to as follows:
ARTICLE
1
DEFINITIONS
For
purposes of this Agreement, the following words, terms and phrases where written
with an initial capital letter, shall have the meanings assigned to them in
this
Article 1 unless the context otherwise requires:
1.1
Products.
“Products” shall mean those products described in Exhibit
A
attached hereto and incorporated herein, as amended by E-BAND from time to
time.
E-BAND shall give DOT VN thirty (30) days written notice of such
Amendment.
1.2
Territory.
“Territory” shall mean a non-exclusive right to distribute in Cambodia, Thailand
and Laos and an exclusive right to distribute in Vietnam. DOT VN has exclusive
rights only to Vietnam subject to the requirements of Article 2.1.
1.3
Dot
VN List Price.“Dot
VN List Price” shall mean the prices then being quoted by E-BAND for sales
of Products to DOT VN. Dot
VN List Price does not include transportation, customs duties, tariffs, taxes,
fees or other charges which may be imposed on the importation, handling,
transportation, purchase, use or sale of Products. The DotVN List Price can
be
found in Exhibit A.
1.4
DOT
VN Information.
“DOT VN Information” shall mean all information, other than information in
published form or expressly designated by DOT VN as non-confidential, which
is
directly or indirectly disclosed to E-BAND, regardless of the form in which
it
is disclosed, relating in any way to DOT VN’s markets, customers, products,
patents, inventions, procedures methods, designs, strategies, plans, assets,
liabilities, costs, revenues, profits, organization, employees, agents, or
business in general.
1.5
E-BAND
Information.
“E-BAND Information” shall mean all information, other than information in
published form or expressly designated by E-BAND as non-confidential, which
is
directly or indirectly disclosed to DOT VN or embodied in Products provided
hereunder, regardless of the form in which it is disclosed, relating in any
way
to E-BAND’S markets, customers, products, patents, inventions, procedures
methods, designs, strategies, plans, assets, liabilities, costs, revenues,
profits, organization, employees, agents, or business in general.
1.6
Brand(s).“Brands”
shall
mean all names, logotypes and trademarks held by E-BAND licensed
to the DOT VN for the purpose of selling and promoting the
Products.
ARTICLE
2
APPOINTMENT
2.1
Scope.
E-BAND hereby appoints DOT VN, and DOT VN hereby accepts appointment, as
E-BAND’S distributor during the term of this Agreement with the right to sell or
otherwise distribute Products in the Territory, under E-BAND’S name, logotypes
and trademarks, or such other name as may be agreed to in writing by the
Parties, subject to all the terms and conditions of this Agreement. Subject
to
the provisions of Article 2.2, such right to distribution shall be exclusive
as
to Vietnam (only) (“Exclusivity Right”), and shall be effective for a period of
one (1) year from the Effective Date, provided, however that the sales quotas
(the “Quotas”) set forth in Exhibit
B
are met by DOT VN. Upon the satisfaction of the Quotas, the Exclusivity Right
shall be extended in accordance with the schedule attached hereto as
Exhibit
B.
E-BAND shall not appoint any person or entity other than DOT VN as its
distributor for Products in Vietnam. E-BAND shall not sell, transfer, license
or
otherwise make available Product to any person or entity other than DOT VN
in
Vietnam. The Quotas shall be subject to a good faith review by both parties
every year. If
the Quotas are not met in any particular year, the Exclusivity Right shall
terminate and E-BAND shall have the right to appoint other distribution agents
in and/or market and sell the Products directly into Vietnam.
2.2
Frequency
Licensure.
It is acknowledged that Products cannot be sold in Vietnam until the requisite
frequency licenses are granted. Therefore, the applicable time periods governing
the Exclusivity Rights and Quotas during the initial year of this Agreement
shall be tolled up to and including the date the requisite frequency licenses
are granted by Vietnam’s Ministry of Information and Communications. DOT VN
shall dilligently apply to the Ministry of Information and Communications for
the requisite frequency licenses. The one year Exclusivity Period and the time
to meet Quotas during the first year of this Agreement shall not be extended
for
more than ninety (90) days by reason of delays in obtaining the requisite
frequency licenses.
2.3
Inquiries.
Any inquiry or order received directly or indirectly by E-BAND concerning
potential sales of Product to be deployed in Vietnam shall be promptly referred
to DOT VN. DOT
VN may not actively market, resell or distribute Products outside the Territory,
and shall promptly contact E-BAND regarding all inquiries and referrals received
by DOT VN regarding potential sales of Products outside the
Territory.
2.4
Limitations.
This Agreement only permits DOT VN to sell Products originally sold to DOT
VN by
E-BAND. The sales of, or offer to sell, Products to DOT VN by E-BAND does not
include any other right to manufacture or modify Products or
Branding.
2.5
Discontinuation.
E-BAND, in its sole discretion, shall have the right to discontinue the
marketing, production, distribution of any or all of a Product Line at any
time
during the term of this Agreement, provided that E-BAND gives thirty
(30) days prior written notice to DOT VN.
E-BAND shall be under no obligation to continue the production of any Products,
except as per orders accepted and confirmed by E-BAND. E-BAND may modify,
replace, and improve Products, at E-BAND’s discretion, without prior notice
and/or liability to DOT VN, but shall give thirty (30) days prior written notice
to DOT VN of a price adjustment resulting from any such modication, replacement,
or improvement.
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ARTICLE
3
GENERAL
OBLIGATION OF DOT VN
3.1
Legal
Requirements.
DOT VN shall take all reasonable steps to accomplish all national and local
legal requirements applicable to the importation and sale of the Product as
well
as any other activity associated with the importation and sale of the
Product, including
registration, certification and licensing of Product in Territory, as necessary
and shall provide such related documents to E-BAND upon request. E-BAND retains
all such rights, title, and interest in and concerning such rights after Product
is so registered. DOT VN will keep E-BAND updated as to the process and
timing.
DOT VN is liable for all irregularities and fines attributable to DOT VN’s
importation and/or sale of the Product. DOT VN agrees to comply with all
intellectual property requirements as set forth in Section 9 of this
agreement.
3.2.
Assignment
or Abandonment.
DOT VN may not abandon its obligations or transfer /assign to third party the
rights and obligations originated from this Agreement, without prior
authorization of E-BAND. Notwithstanding, nothing herein shall be construed
to
restrict DOT VN’s right to employ or utilize subcontractors in connection with
Product installation or customer service. DOT VN remain fully liable under
this
agreement for any third party engaged by DOT VN to commercially or technically
support the sale and distribution of the Product.
3.3.
Competition.
DOT VN will not promote trade, represent or distribute, direct or indirectly,
in
its own name or through third parties other goods that compete directly with
the
Products supplied by E-BAND during the term of the Agreement.
3.4
Costs.
DOT VN shall be responsible for all costs and expenses incurred directly or
indirectly, from the activities of DOT VN and may not seek from E-BAND any
type
of reimbursement or payment for its activities except in situations of gross
negligence or malfeasance by E-BAND. In
addition to Dot VN List Price, the amount of any present or future duty, tariff,
tax, fee or charge applicable to the importation, handling, transportation,
purchase, use or sale of Products shall be paid by DOT VN except where law
otherwise provides, in which event the amount of such duties, tariffs, taxes,
fees or charges shall be added to the then current Dot VN List
Price.
3.5
Local
Presence.
DOT VN must maintain an office in the Territory and comply with all applicable
national and local legal requirements for maintaining such office.
3.6
Marketing.
DOT VN agrees to use best efforts to solicit, market and distribute Products
in
order to meet the Quotas. DOT
VN agrees to advertise Products and to distribute literature and catalogues
and
to do such other tasks as is reasonably necessary to maintain the goodwill
of
customers within the Territory, and to maintain at all times sufficiently
trained sales and technical personnel to enable DOT VN to perform its
obligations under this Agreement. E-BAND agrees to provide DOT VN with all
formally released content, sales, marketing and training material written in
the
English language, including software versions for DOT VN to translate, at its
expense, material for local requirements. E-BAND will continually under the
term
of this agreement provide DOT VN with updates to such marketing material. DOT
VN
agrees to promote the Product at key marketing events in territory.
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3.7
Compliance.
DOT VN agrees (i) not to make nor permit any of its employees, agents, sales
representatives or subcontractors to make any representation or warranty with
respect to or otherwise describe any Products distributed and sold hereunder
except in strict accordance with literature relating thereto and written
descriptions thereof; (ii) that compliance with all applicable laws and
regulations and the accurate translation of any descriptive or operational
literature, including the expense thereof, shall be DOT VN’s sole
responsibility; (iii) not to do anything in violation of the U.S. Import and
Export Administration statutes and regulations, or similar laws and regulations
within the Territory; (iv) to comply with all laws applicable to the performance
of the Agreement, including the Anti-Kickback Act (41 U.S.C. §§ 51-58) and the
Xxxx Amendment (31 U.S.C. § 1352); and (v) to immediately bring to the attention
of E-BAND any improper or wrongful use in the Territory of E-BAND’s patents,
trademarks, copyrights, emblems, designs, models or similar industrial or
commercial rights which come to DOT VN’s notice.
3.8.
Pricing.
DOT VN agrees to follow the pricing structure and policy of the Product per
Exhibit A. DOT VN shall have discretion to establish Product pricing within
the
Territory within the framework of Exhibit A.
ARTICLE
4
ORDERS
FOR PRODUCTS
4.1
Purchase
Orders.
DOT VN shall submit purchase orders for the products to E-BAND in writing or
by
facsimile which shall set forth at a minimum:
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4.1.1
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An
identification of the Products
ordered,
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4.1.2
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Quantity,
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4.1.3
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Requested
delivery dates, and
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4.1.4
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Shipping
instructions and shipping address.
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4.1.5
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Billing
instructions and billing address
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The
terms and conditions of this Agreement shall apply to and govern all orders
for
Products submitted to E-BAND by DOT VN. Nothing contained in any such orders
shall in any way modify such terms and conditions or add any additional terms
and conditions except as otherwise agreed to in writing by the parties hereto.
In the event of any conflicting terms between any purchase order and this
Agreement, the terms and conditions set forth herein shall control.
4.2
Delivery
Terms.
Purchase orders matching forecasted volumes will be delivered FOB San Diego
within 30 days from accepted purchase order. Orders not included in forecasted
volumes will be shipped FOB San Diego per date provided to DOT VN upon
acceptance of such non-forecasted orders. E-BAND shall inform DOT VN of any
delay in shipment for accepted purchase orders. If such unexpected delay occurs
DOT VN shall have the right to cancel such accepted but delayed purchase order.
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ARTICLE
5
PRICES
AND PAYMENT
5.1
Prices.
The E-BAND List Price and related discount to DOT VN for distribution of the
Product is expressed in Exhibit
A.
5.2
Price
Changes.
E-BAND shall inform DOT VN of any price changes at least 30 days before such
pricing comes into effect. DOT VN shall during the term of this agreement be
eligible for lowest pricing of the Product offered by E-BAND to any channel
partner in the Territory, subject to related volume and quota requirements
to be
elgible for such lower price level.
(a)
Price Increase. In the event E-Band increases the price for any E-Band Product,
the increase shall apply to: any order received by E-Band after the effective
date of the increase; and any order or portion thereof to be shipped after
the
effective date of the increase regardless of the date the order was received;
provided, however, that any order or portion thereof transmitted by DOT VN
prior
to E-Band's announcement of the increase and affected thereby, may be cancelled
without penalty by DOT VN by written notice to E-Band within ten (10) days
of
such announcement.
(c)
Price Decrease. In the event that E-Band decreases the price for any E-Band
Product, the decrease shall apply to all units of such product in DOT VN's
inventory that are still new as of the effective date of the decrease, and
that
had been shipped to DOT VN no more than ninety (90) days prior to such effective
date. For each unit of product as to which this section applies, DOT VN will
receive a credit against the price of a subsequent unit purchased from E-Band
within ninety (90) days of the effective date of the price
decrease.
5.3
Payment
Terms.
All payments hereunder shall be made on Net 30 terms in U.S. Dollars or such
other currency as may be mutually agreed upon shipment of Products by E-BAND
to
the Company at the shipping address set forth in the Purchase Order. Payment
Terms are pending E-BAND’s credit approval of DOT VN.
5.4
Record-keeping.
DOT VN agrees to keep accurate records of sales, revenues received, discounts
provided, and resale customers related to and from the distribution of Products
during the term of this Agreement and for a period of twelve (12) months
thereafter (the “Reporting Period”). During the Reporting Period, DOT VN agrees
to provide a copy of such report monthly to E-BAND.
ARTICLE
6
REPRESENTATIONS
AND WARRANTIES
6.1
Representations
and Warranties by E-Band.
6.1.1
Organization.
E-BAND is a corporation duly organized, validly existing and in good standing
under the laws of the state of California.
6.1.2
Authority;
Consents and Approvals; No Violations.
E-BAND has the full corporate power and authority and legal right to execute
and
deliver this Agreement, and otherwise to perform its obligations hereunder.
This
Agreement has been validly executed and delivered by E-BAND and will constitute
a valid and binding obligation of E-BAND enforceable in accordance with its
terms, except to the extent such enforceability may be limited by the effects
of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, and by the effect of general principles
of equitable law, regardless of whether such enforceability is considered in
a
proceeding in equity or at law. The execution and delivery of this Agreement
and
the consummation of the transactions contemplated hereby do not and will not
violate any provision of E-BAND's Certificate of Incorporation or Bylaws or
violate, conflict with, result in a breach of or constitute (with or without
due
notice, lapse of time or both) a default under any agreement, license, contract,
franchise, permit, indenture, lease, or other instrument to which E-BAND is
a
party, or by which it or any of its assets are bound.
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6.1.3
Intellectual
Property.
E-BAND warrants and represents that the exercise of any rights by DOT VN in
accordance with this Agreement will not infringe upon the any right of any
third
party.
E-BAND
further represents and warrants that:
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(1)
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All
intellectual property that E-BAND uses and provides to DOT VN does
not
infringe any patent, trademark, trade name, copyright or
title.
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(2)
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E-BAND
has taken all reasonable steps to secure such licenses and/or patents,
trademarks, trade name or copyright related to the production, sale
and
operation of the Products.
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(3)
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Unless
otherwise expressly provided in writing prior to delivery of the
Prodcuts,
E-BAND is the sole owner of all Products provided to DOT VN, and
no rights
have been granted, or will be granted in the Products that are
inconsistent with the rights granted in this
Agreement.
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(4)
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E-BAND
grants and assigns to DOT VN the benefit of all warranties and
representations made for E-BAND’s benefit by any third party with respect
to the Products.
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(5)
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That
there are no liens, encumbrances and/or obligations in connection
with the
Products, the technology upon which the Products are based or any
of the
intellectual property of E-BAND other than such liens, encumbrances
and/or
obligations specifically set forth herein or that will not have a
materially adverse effect on the consummation of the transactions
contemplated hereby.
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6.2
Representations
and Warranties by DOT VN.
6.2.1
Organization.
DOT
VN is a corporation duly organized, validly existing and in good standing under
the laws of the state of Delaware.
6.2.2
Authority;
Consents and Approvals; No Violations.
DOT
VN has the full corporate power and authority and legal right to execute and
deliver this Agreement, and otherwise to perform its obligations hereunder.
This
Agreement has been validly executed and delivered by DOT VN and will constitute
a valid and binding obligation of DOT VN enforceable in accordance with its
terms, except to the extent such enforceability may be limited by the effects
of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, and by the effect of general principles
of equitable law, regardless of whether such enforceability is considered in
a
proceeding in equity or at law. The execution and delivery of this Agreement
and
the consummation of the transactions contemplated hereby do not and will not
violate any provision of DOT VN's Certificate of Incorporation or Bylaws or
violate, conflict with, result in a breach of or constitute (with or without
due
notice, lapse of time or both) a default under any agreement, license, contract,
franchise, permit, indenture, lease, or other instrument to which DOT VN is
a
party, or by which it or any of its assets are bound.
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ARTICLE
7
ACCEPTANCE
AND WARRANTY
7.1
Acceptance
of Products.
In the event of any shortage, damage or discrepancy in or to a shipment of
Products, DOT VN shall promptly report the same to E-BAND and furnish such
written evidence or other documentation. Upon notice of such shortage, damage
or
discrepancy, E-BAND shall promptly deliver additional or substitute Products
to
DOT VN in accordance with the delivery procedures set forth herein.
7.2
Product
Warranty.
E-BAND warrants for a period of one (1) year after the date of delivery in
accordance with Article 4.2 hereof that the Products shall be free from defects
in material and workmanship per E-BAND’s standard warranty in Exhibit
D
E-BAND shall, in the event of breach, provide at no charge to DOT VN conforming
replacement or substitute Products. The Warranty will be provided in accordance
to E-BAND’s standard terms and conditions in effect at a given time
7.3
Technical
Support and Training.
DOT VN shall be responsible for level one and level two support, and E-BAND
shall be responsible for level three support according to Exhibit
C.
DOT VN will assign at least two dedicated Trainers for the E-BAND Product.
E-BAND will train the DOT VN trainers to secure support according to Level
1 and
2 per Exhibit
C.
Such training can be scheduled at the E-BAND site in San Diego as needed but
with 15 days notice by DOT VN to E-BAND. E-BAND shall provide training to DOT
VN
Trainers and other personnel at site in Territory upon first delivery of trial
equipment and second, upon shipment of first commercial purchase order or as
otherwise agreed with DOT VN.
7.4
Disclaimer.
IT
IS EXPRESSLY AGREED THAT THE WARRANTY SET FORTH HEREIN SHALL BE THE SOLE AND
EXCLUSIVE REMEDY
OF DOT VN, ITS CUSTOMERS AND END USERS. UNDER NO CIRCUMSTANCES SHALL E-BAND
BE
LIABLE FOR ANY COSTS, LOSS, EXPENSE, DAMAGES, SPECIAL DAMAGES, INCIDENTAL
DAMAGES OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE DESIGN,
MANUFACTURE, SALE, USE OR REPAIR OF PRODUCTS, WHETHER BASED UPON WARRANTY,
CONTRACT, NEGLIGENCE OR STRICT LIABILITY. IN NO EVENT WILL LIABILITY EXCEED
THE
DOT VN LIST PRICE OF THE APPLICABLE PRODUCT. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. THE WARRANTY AND LIMITS
OF LIABILITY CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND
LIABILITIES, EXPRESSED OR IMPLIED ARISING BY LAW, CUSTOM, BY ORAL OR WRITTEN
STATEMENTS. ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE OR TRADE PRACTICE, AND ANY DUTIES OF LACK OF NEGLIGENCE OR WORKMANLIKE
EFFORT ARE HEREBY DISCLAIMED BY E-BAND, ITS LICENSORS AND
REPRESENTATIVES.
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ARTICLE
8
CONFIDENTIALITY
8.1
Acknowledgment.
Both Parties acknowledge and agree that both the DOT VN Information and the
E-BAND Information (collectively the “Information”) is confidential and
proprietary. The Parties agree not to use the Information during the term of
this Agreement for any purpose other than as permitted or required for the
performance by each Party hereunder. The Parties further agree not to disclose
or provide any such Information to any third party and to take all necessary
measures to prevent any such disclosure by its employees, agents, contractors,
or consultants during the term hereof. Nothing contained herein shall prevent
either Party from using disclosing or authorizing the disclosure of any
Information which (i)
was in the public domain at the time it was disclosed or has entered the public
domain through no fault of the receiving party; (ii) was independently developed
by the receiving party without any use of the Information; or (iii) became
known
to the receiving party, without restriction, from a source other than the
disclosing party, without breach of this Agreement by the receiving party and
otherwise not in violation of the disclosing party's rights. In addition, the
receiving party may disclose the other party’s Information as required under
applicable law or regulation, including rules of any applicable securities
exchange, or pursuant to the order or requirement of a court, administrative
agency, or other governmental body; provided, however, that the receiving party
will provide prompt prior notice of such disclosure to the disclosing party
to
enable the disclosing party to seek a protective order or otherwise restrict
such disclosure.
ARTICLE
9
INTELLECTUAL
PROPERTY
9.1
Use
of Trademarks.
E-BAND hereby grants to DOT VN a non-exclusive, and royalty-free right and
license to use the E-BAND trademarks specified in Exhibit
E
attached hereto, as such Exhibit may be modified from time to time during the
term of this Agreement, in connection with the sale or other distribution,
promotion, advertising and maintenance of the Products in the Territory. E-BAND
does further grant DOT VN the right to allow resellers, sub-distributors or
agents of DOT VN to use E-BAND trademarks in furtherance of marketing, promotion
and sale of E-BAND Products in the Territory.
9.2
Registration
and IP Protection.
E-BAND shall use best efforts to register the E-BAND Intellectual Property
specified in Exhibit E, as such Exhibit may be modified during the term of
this
Agreement, in such jurisdictions in which E-BAND determines that registration
is
necessary or useful to the successful distribution of Products. In addition,
in
the event E-BAND believes that it is advisable to effect any filing or obtain
any governmental approval or sanction for the use by DOT VN of any of E-BAND’S
trademarks pursuant to this Agreement, the parties shall fully cooperate to
do
so. All expenses relating to the registration of E-BAND’S trademarks in the
Territory as well as the making of any filing or obtaining any governmental
approvals for the use by DOT VN of E-BAND’S trademarks shall be borne by
E-BAND.
9.3
Termination
of Use.
DOT VN acknowledges E-BAND’S proprietary rights in and to E-BAND’S trademarks
and trade names and DOT VN hereby waives all rights to any trademarks, trade
names, and logotypes now or hereafter solely originated or licensed by
E-BAND.
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9.4
Ownership.
DOT VN agrees not to modify, adapt, prepare derivative works from, decompile,
or
disassemble the Products. DOT VN further agrees not to, at any time, remove,
obscure, or alter E-BAND’s copyright notice, logos, trademarks, or other
proprietary rights notices affixed to or contained within the Products. Other
than as permitted herein, DOT VN will not display or otherwise use, remove,
obscure, alter or permit any person or entity under its control to display
or
otherwise use remove, obscure, alter any of the trademarks, service marks,
trade
names, copyrights or other proprietary designations, or any variations or
combinations thereof, owned by E-BAND, without the prior express written consent
of E-BAND. DOT VN will send for appropriate approval, prior to the use of any
trademark, service xxxx, trade name, copyright or proprietary designation,
or
any variation or combination thereof, a sample of each letterhead, invoice,
price list, label, packaging material, sign, brochure, and all other
advertising, promotional, printed or other material displaying or otherwise
using the trademark, trade name, service xxxx, copyright or other proprietary
designation, or combination or variation thereof, and will display or otherwise
use only such material as E-BAND appropriately consents in writing to be
displayed or otherwise used. Any such approval shall not grant to DOT VN, by
implication or otherwise, any ownership or other intellectual property right
in
or to such trademarks, service marks, trade names or other intellectual property
rights owned or controlled by E-BAND.
ARTICLE
10
INDEMNIFICATION
10.1
E-Band’s
Obligations.
E-BAND shall, at its own expense, defend any suit instituted against DOT VN
which is based on any allegation that any Products manufactured by E-BAND and
sold to DOT VN hereunder injure or cause harm to a consumer of E-BAND’S Products
due to product defect unless caused by DOT VN. E-BAND shall further defend
DOT
VN against any suit instituted against DOT VN which is based on any allegation
that any Products manufactured by E-BAND and sold to DOT VN hereunder constitute
an infringement of any patent unless
such Products are modified by DOT VN or its agents, subdistributors or
resellers.
E-BAND shall indemnify DOT VN against any award of damage and costs made against
DOT VN by a final judgment of a court of last resort due
to the breach of any representation, warranty or covenant in this Agreement
by
E-BAND, or
if it is determined that any injury or patent infringement has resulted from
the
action or omission of action by E-BAND, unless caused by the gross negligence
or
intentional misconduct of DOT VN.
10.2
Dot
VN’s Obligations.
DOT VN shall, at its own expense, defend any suit instituted against E-BAND
which is based on any allegation that any Products sold by DOT VN hereunder
injure or cause harm to a consumer of E-BAND’S Products due to action or
omission of action by DOT VN. DOT VN shall further defend E-BAND against any
suit instituted against E-BAND which is based on any allegation that any
Products manufactured by E-BAND and sold to DOT VN hereunder constitute an
infringement of any trade xxxx, trade name, logotype or brand name originated
by
DOT VN. DOT VN shall indemnify E-BAND against any award of damage and costs
made
against E-BAND by a final judgment of a court of last resort due to the breach
of any representation, warranty or covenant in this Agreement by DOT VN, or
if
it is determined that any injury or trademark infringement has resulted from
the
action or omission of action by DOT VN, unless caused by the gross negligence
of
intentional misconduct of E-BAND.
ARTICLE
11
TERM
AND TERMINATION
11.1
Term.
This Agreement shall take effect in Territory as of the Effective Date and
shall
continue for a period of three (3) years. Thereafter, this Agreement shall
be
renewed annually, one year at a time, provided that Parties have given each
other mutual renewal notice. Such notice of renewal shall be presented and
confirmed in writing or facsimile no later than sixty (60) days prior to the
end
of the term of this Agreement, as long as next year’s quota in Vietnam is
mutually agreed and confirmed by Purchase Order to E-BAND at such time of
renewal.
9
11.2
Termination.
Notwithstanding the provisions of Article 11.1 above, this Agreement may be
terminated in accordance with the following provisions:
11.2.1
Either party hereto may terminate this Agreement at anytime by giving notice
in
writing to the other party, which shall be effective upon dispatch, should
the
other party file a petition of any type as to its bankruptcy, be declared
bankrupt, become insolvent, make an assignment for the benefit of its creditors,
go into liquidation or receivership; or otherwise lose legal control of its
business or should the other party or a substantial part of its business come
under the control of a third party
11.2.2
Either party may terminate this Agreement by giving notice in writing to the
other party should an event of Force Majeure continue for more than six (6)
months as provided in Article 12.2 below;
11.2.3
Either party may terminate this Agreement by giving notice in writing to the
other party in the event the other party is in material breach of this Agreement
and shall have failed to cure such breach within thirty (30) days of receipt
of
written notice thereof from the non-breaching party;
11.2.4
Either party may terminate this Agreement on sixty (60) days prior written
notice, provided that, upon termination all obligations pursuant to an issued
and accepted PO shall remain in full force and effect.
11.3
Rights
and Obligations upon Termination.
In the event of termination of this Agreement for any reason, the parties shall
have the following rights and obligation:
11.3.1
Termination of the Agreement shall not release either party from the obligation
to make payment on all amounts due as of the date of Termination or due with
respect to delivered or pending orders, but shall release DOT VN of any further
obligation to purchase Products. Termination, unless due to material breach
of
this Agreement by DOT VN shall not release E-BAND from fulfilling accepted
and
confirmed purchase orders;
11.3.2
E-BAND shall have the right at its option to repurchase any part or all of
DOT
VN’s inventory of Products, not committed or sold to a customer, in DOT VN’S
possession as of the termination date at E-BAND’S invoiced price, less any
amount for excessive wear and tear, plus freight to the original port of
origin.
11.3.3
DOT VN’S obligations pursuant to Article 8 hereof shall survive the termination
of this agreement;
11.3.4
Upon termination of this Agreement, DOT VN will cease to display or otherwise
use all trademarks, service marks, trade names, copyrights, other proprietary
designations, and variations and combinations thereof, for which consent to
display or otherwise use was granted, and will deliver to E-BAND or destroy
them, at E-BAND’s sole discretion, free of any charge, all materials of any type
or kind displaying or otherwise using the same which are in DOT VN’s
control.
10
ARTICLE
12
FORCE
MAJEURE
12.1
Definition.
Force Majeure shall mean any event or condition, not existing as of the date
of
signature of this Agreement, not reasonably foreseeable as of such date and
not
reasonably within the control of either party, which prevents in whole or in
material part, the performance by one of the parties of its obligations
hereunder or which renders such obligations so difficult or costly as to make
such performance commercially unreasonable. Without limiting the foregoing,
the
following shall constitute events or conditions of Force Majeure: acts of State
or governmental action, riots, disturbance, war, strikes, terrorism, lockouts,
slowdowns, prolongs shortage of energy supplies, epidemics, fire, flood,
hurricane, typhoon, earthquake, lightning and explosion. It is in particular
expressly agreed that any refusal or failure of any governmental authority
to
grant any export license legally required for the fulfillment by E-Band of
its
obligations hereunder shall constitute an event of Force Majeure.
12.2
Notice.
Upon giving notice to the other party, a party affected by an event of Force
Majeure shall be released without any liability on its part from the performance
of obligations under this Agreement, except for the obligation to pay any
amounts due and owing hereunder, but only to the extent and only for the period
that its performance of such obligations is prevented by the event of Force
Majeure. Such notice shall include a description of the event of Force Majeure,
and its cause and possible consequences. The party claim Force Majeure shall
promptly notify the other party of the termination of such event.
12.3
Suspension
of Performance.
During the period that the performance by one of the parties of its obligations
under this Agreement has been suspended by reason of an event of Force Majeure,
the other party may likewise suspend the performance of all or part of its
obligations hereunder to the extent that such suspension is commercially
reasonable.
12.4
Termination.
Should the period of Force Majeure continue for more than six (6) consecutive
months, either party may terminate this Agreement without liability to the
other
party except for payments due to such date, upon giving written notice to the
other party.
ARTICLE
13
FUTURE
ENDEAVORS.
13.1
E-BAND and DOT VN will explore the possibility of additional partnership
opportunities, including but not limited to, manufacturing, service and repair.
13.2
E-BAND and DOT VN agree that both parties will mutually agree upon the
appropriate business model for all jointly created new ventures.
ARTICLE
14
MISCELLANEOUS
14.1
Relationship.
This Agreement does not make either party the employee, agent or legal
representative of the other for any purpose whatsoever. Neither party is granted
any right or authority to assume or to create any obligation or responsibility,
express or implied, on behalf of or in the name of the other party. In
fulfilling its obligations pursuant to this Agreement each party shall be acting
as an independent contractor. Any
place or places of business maintained by DOT VN in connection with the
performance of this Agreement shall be maintained at DOT VN’s own name. DOT VN
agrees to indemnify, defend and hold E-BAND harmless from any and all claims
against E-BAND from DOT VN’s acts or failure to act when required to do
so.
11
14.2
Assignment.
Neither party shall have the right to assign or to otherwise transfer its rights
and obligations under this Agreement except with the prior written consent
of
the other party. Further any successor in interest by merger, operation of
law,
assignment, purchase or otherwise of the entire party shall acquire all rights
and obligations of such party hereunder. Any prohibited assignment shall be
null
and void. However, this term shall not be construed to limit DOT VN’s ability to
enter into any partnerships, agreements or subcontracting relationships as
DOT
VN may deem necessary, in its sole discretion, to conduct business within the
Territory. If such other party consents as stated above,any potential assignee
must agree to abide by the terms and conditions of this Agreement. "Assignment"
shall be deemed to include the transfer of substantially all the assets of,
or
majority interest in the voting stock of, either party, or the merger of either
party with one or more third parties.
14.3
Disputes.
In the event of any dispute, the parties respective decision makers agree to
meet within ten (10) business days and in good faith seek an informal resolution
of the disputed issue. If no resolution is reached, the parties agree to submit
any claim, dispute or controversy (“Claim”) against the other, or against the
employees, agents or assigns of the other, arising from or relating in any
way
to this Agreement, including Claims regarding the applicability of this
arbitration clause or the validity of the entire Agreement, to binding
arbitration to be administered by JAMS under its Streamlined Rules, unless
the
parties otherwise agree. The sole arbitrator shall have the power to determine
issues of arbitrability, and shall apply the laws of the State of California,
except for, and limited only to claims or issues where California law is
preempted by federal statute. All other issues shall be governed by applicable
California law, excluding the Convention on Contracts for the International
Sale
of Goods and that body of law known as conflicts of laws.. If the parties cannot
agree on a single arbitrator, a panel of 3 arbitrators shall be employed, the
parties each selecting one arbitrator, and the two arbitrators so selected
shall
choose a third “independent” arbitrator. All arbitrators must either be licensed
attorneys or retired judges. The parties shall have right to full discovery
to
the extent permitted by the California Code of Civil Procedure and California
Rules of Court applicable to judicial arbitrations. The arbitrator(s) shall
be
empowered to appoint experts and/or consultants, resolve discovery disputes
grant equitable relief, compensatory and punitive damages, and grant any relief
a party could obtain in an action initiated in the a California Superior Court,
proceed ex-parte should one party fail to appear, and grant any other type
of
relief appropriate to the particular circumstances. The arbitrator shall have
the power to award the prevailing party its litigation expenses including
reasonable attorneys fees and costs, and expert witness fees. The hearing shall
take place within 6 months of submission to arbitration. No pre-hearing motions
may be filed, other than with respect to requests for injunctive relief and
discovery disputes. The arbitration hearing will be held in San Diego,
California. Judgment may be entered in any court of competent jurisdiction.
The
parties agree that all proceedings are confidential until 30 days after the
award is made. In the event the losing party fully complies with all aspects
of
any adverse decision, including payment of all amounts awarded to the other
party, the matter shall be sealed and remain confidential in perpetuity.
14.4
Amendment.
This Agreement may not be modified or amended except by an instrument in writing
signed by each of the parties hereto, or their respective permitted successors
in interest. Exhibits may be updated continuously after agreement and signature
by both parties.
14.5
Waiver.
No term or condition of this Agreement shall be deemed to have been waived,
nor
any estoppel against the enforcement of any provision of this Agreement, except
by written instrument of the party charged with such waiver or estoppel. In
addition, no such written waiver or estoppel that is in effect shall be deemed
to be a continuing waiver unless specifically stated therein, shall operate
only
as to the specific term or condition waived and shall not constitute a waiver
as
to any act other than that specifically waived or as to any term, condition
or
obligation that comes into effect subsequent to the written waiver.
12
14.6
Agreement
in Counterparts.
This Agreement may be executed in counterparts, each of which thus executed
shall be deemed an original, but all of which, taken together, shall constitute
one and the same agreement, binding upon the parties hereto, their
administrators, successors and permitted assigns.
14.7
Severability.
If any provision of this Agreement, or the application thereof, shall be
determined by a court of competent jurisdiction to be invalid or unenforceable,
then this Agreement shall remain in full force and effect between the parties
to
the greatest extent permitted by law unless the invalidity or unenforceability
of such provision or provisions destroys or materially impairs the basis of
the
bargain between the parties as contained in this Agreement.
14.8
Captions;
References.
Article and paragraph headings in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement. Whenever the terms "hereof", "hereby", "herein" or words of similar
import are used in this Agreement they shall be construed as referring to this
Agreement in its entirety rather than to a particular paragraph or provision,
unless the context specifically indicates to the contrary. Any reference to
a
particular or "Paragraph" or “Article” shall be construed as referring to the
indicated paragraph or section of this Agreement unless the context specifically
indicates to the contrary.
14.9
Notices. Any
notice, direction or other instrument required or permitted to be given under
or
in connection with this Agreement shall be effective when either delivered
personally, mailed by certified mail, return receipt requested (with postage
prepaid), to the addresses listed below, or deposited with Federal Express
or
other reputable courier (with fee prepaid) for overnight delivery to the
addresses listed below:
If
to DOT VN:
Attn:
Legal Department
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
If
to E-BAND:
E-BAND
COMMUNICATIONS CORP.
Attn:
00000
Xxxxxxx Xxxxx Xx., Xxxxx X
Xxx
Xxxxx, XX 00000
With
a Copy to:
13
Any
party may change its address for service from time to time by notice given
in
accordance with the foregoing and any subsequent notice shall be sent to the
party at its new address, as so noticed.
14.10
Entire
Agreement.
The parties have read this Agreement and agree to be bound by its terms, and
further agree that it constitutes the complete and entire Agreement of the
parties and supersedes all previous and contemporaneous communications, oral,
implied or written, and all other communications between them relating to the
subject matter thereof. No representations or statements of any kind in relation
to the subject matter hereof made by either party, which are not expressly
stated herein, shall be binding on such party.
IN
WITNESS WHEREOF,
the parties hereto have signed this Agreement, thereunto duly authorized on
the
day and year above written.
E-BAND
COMMUNICATIONS CORP.
By
/s/
Xxxx
Xxxxxxxx
Xxxx
Xxxxxxxx, Chief Marketing Officer
By
/s/
Xxx
Xxxxxxx
Xxx
Xxxxxxx, President
14
