Commercial Agreement
[***] Portions redacted in
accordance with request for confidential treatment and filed separately with
SEC.
Commercial Agreement
concerning
the purchase
of
commercially
traded
Products
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Contract
no.
of
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2004-1433
24.12.2004
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valid
from
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24.12.2004
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Contract
between
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Swisscom
Xxxxxx XX,
XX-0000
Xxxx / Xxxxxxxxxxx
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as
purchaser
hereinafter
referred to as
„Swisscom
Mobile“
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and
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as
Supplier
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IXI
MOBILE (EUROPE) LTD
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hereinafter
referred to as
„Supplier“
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00
Xxxxxxxxxx Xxxxxxx
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Xxxxxx XX0
0XX
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Xxxxxx Xxxxxxx
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Swisscom
Mobile AG
Purchasing
& Handset Management
XX-0000
Xxxxx / Xxxxxxxxxxx
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Created in:
Printed in:
Created by:
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May
2004
Wednesday,
23 Jun 2004
Handset
Sourcing Team
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Commercial
Agreement
Commercially
traded Products
Supplier
Page:
2
Content:
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1
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Subject
of the Commercial Agreement
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4
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2
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Parts
of the Commercial Agreement
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4
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3
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Deliverables
of Supplier
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5
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3.1
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Samples,
Dummies and Accessories
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5
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3.2
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Product-Information/Documentation
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5
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3.3
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[***]
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6
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3.4
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Pre-Configuration
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6
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3.5
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Training
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6
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4
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Economic
Terms
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6
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4.1
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Pricelist
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6
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4.2
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Payment
Terms and Billing
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6
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4.3
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Economical
Objectives and Discounts
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8
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5
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Marketing
and Promotion Activities 2004
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7
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6
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Shipping
and Delivery Terms
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8
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6.1
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Inspection
of the Shipments and Acceptance of goods
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8
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6.2
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Place
of Performance (Delivery Address)
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8
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6.3
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Passing
of the Title
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6.4
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Terms
of Delivery and Shipping
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9
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7
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Import
Details and Shipping Instructions
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9
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8
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Guarantee
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9
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9
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Term
and Termination of the Commercial Agreement
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9
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9.1
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Term
and Termination of the Commercial Agreement
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9.2
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Amendments
to the Commercial Agreement
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9
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9.3
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Severability
Clause
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10
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10
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Execution
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11
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Commercial
Agreement
Commercially
traded Products
Supplier
Page:
3
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1
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Subject
of the Commercial Agreement
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Within
the scope of the Frame Agreement concerning the purchase of Handsets and
Accessories Contract no. 2004-1432, dated from 24.12.2004, agreed between
Swisscom Mobile as Operator and IXI Mobile as Supplier, in which this Commercial
Agreement states the economic terms and conditions in connection with the
Delivery for reselling of all commercially traded Products from Supplier. It
shall also include technical specifications, special agreements or
information.
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2
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Parts
of the Commercial Agreement
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The
following documents form integral parts of the Commercial Agreement in the order
they are listed:
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i.
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This
Commercial Agreement document
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ii.
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The
respective confirmed Purchase
Order
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ii.
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Local
Annexes
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·
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Annex
A “Pricelist”
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·
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Annex
B “Process of the Rolling Volume
Forecast”
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·
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Annex
C “Contacts of the Parties”
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·
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Annex
D “Handset Term Sheet” (as a
template)
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Both
Parties confirm that they are in possession of the above-mentioned documents.
Supplier understands the Contractual Structure and accepts it as stated in the
Global Annex 1 “Scheme of Contractual Structure” of the Frame
Agreement.
The
above-mentioned list of Commercial Agreement documents is not exhaustive as new
documents (Annexes) may be added from time to time on mutual agreement of the
Parties. Especially technical specifications of certain types of Products can be
added to this Commercial Agreement or as binding description to the relevant
order as agreed by the Parties.
Annex A
is subject to changes from time to time by Supplier. Always the latest pricelist
of Supplier shall constitute the Local Annex A "Pricelist" of this Commercial
Agreement.
In case
of contradictions between the Commercial Agreement and the Local Annexes the
Commercial Agreement shall prevail unless the Local Annexes state explicitly a
wilful deviation of the Parties from a specified clause of the Commercial
Agreement.
The
general terms and conditions of Supplier and Swisscom Mobile are waived unless
attached to this Agreement.
Commercial
Agreement
Commercially
traded Products
Supplier
Page:
4
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3
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Deliverables
of Supplier
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3.1
Samples, Dummies and Accessories
Marketing
samples: If available, Swisscom Mobile shall receive in minimum 2 marketing
samples free of charge at least 2 months before the Market Launch.
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Ø
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Delivery
Address for marketing samples, Annex C “Contacts of the
Parties”
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Operator
Samples (Test Handsets): With the Sample Availability Swisscom Mobile shall
receive 5 Operator Samples: for its quality and security audits free of charge
and two samples of the latest related Accessories, if they are not compatible
with the existing ones.
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Ø
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Delivery
Address for Operator Samples, Annex C “Contacts of the
Parties”
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Sales
Samples: Immediately after Swisscom Mobile has placed the initial order but not
before Sample Availability Swisscom Mobile shall receive 30 Sales Samples free
of charge for the training, information and instructions of Swisscom Mobile’s
sales and support staff.
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Ø
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Delivery
Address for Sales Samples, Annex C “Contacts of the
Parties”
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Dummies:
With the Market Launch of a new Handset or Handset type Swisscom Mobile shall
receive 300 Dummies for advertising purposes, credited against the marketing
budget.
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Ø
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Delivery
Address for Dummies, Annex C “Contacts of the
Parties
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With
respect to the obligations above:
“Market
Launch” shall be defined as the point in time when the respective products
become commercially available to any end user or operator in
Europe.
“Initial
Sample Availability” shall be defined as the point in time when the first
samples of the Product become available to any operator in Europe or 2 months
before Market Launch whichever occurs first.
With
respect to the obligations above any major change of the Product’s Software
after the initial order shall be treated as if a new type had been ordered and
Swisscom Mobile shall receive new Samples or a new flash tool for the
Samples.
3.2 Product-Information/Documentation
Basically
Information & Documentation concerning Products, the Roadmap, the Forecast
Meeting or the Handset Board shall be delivered in German or English to the
following addresses:
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Ø
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Delivery
Address for Basically Information & Documentation, Annex C “Contacts
of the Parties”
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To inform
Swisscom Mobile’s sales staff in an optimal manner the following information and
documentation about the Products shall be supplied by Supplier four weeks before
the Market Launch:
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§
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Weights
and measures
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Commercial
Agreement
Commercially
traded Products
Supplier
Page:
5
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§
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Speaking
and Standby time
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§
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Scope
of Delivery (content of the
packages)
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§
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Interoperability
of Accessory and new Accessory
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§
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official
promotion slogan or the advertising short
message
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§
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most
important features
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§
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Manuals
in German, French, Italian and English on a media carrier like
CD-ROM
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Ø
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Delivery
Address for Product Information & Documentation, Annex C “Contacts of
the Parties”
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3.3 [***]
[***]
3.4 Pre-Configuration
All
Handsets shall be pre-configured after the requirements of Swisscom Mobile,
according to the technical possibilities and ad no additional costs. This
includes the configuration of WAP over CSD and/or GPRS as well as the settings
of bookmarks. This enumeration is not exhaustive. Swisscom Mobile shall inform
Supplier in writing and in good times of the detailed requirements.
3.5 Training
Supplier
undertakes to instruct Swisscom Mobile’s sales and support staff upon demand of
Swisscom Mobile for new Products (especially of new complex Products). Basic
training for train the trainers shall be free of charge for Swisscom Mobile;
advanced training upon offer of Supplier. The education shall be practical
oriented and shall qualify the trained staffs for consultation, support and
promotion activities.
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4
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Economic
Terms
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4.1 Pricelist
The
actual and agreed prices of the present Product portfolio, which Swisscom Mobile
purchases from Supplier, are stated in the Local Annex A “Pricelist” of this
Commercial Agreement. Annex A is subject to changes from time to time by
Supplier. Always the latest pricelist of Supplier shall constitute the Local
Annex A "Pricelist" of this Commercial Agreement.
4.2 Payment
Terms, Billing and Place of Performance
All
prices are quoted and invoiced in EURO (EUR), excluding value-added tax
(V.A.T.), for Delivery DDP (Delivered Duty Paid, INCOTERMS 2000) to Emmen,
Switzerland.
Invoices
shall be sent in duplicate, quoting the Contract as well as the order number, to
the following address:
Commercial
Agreement
Commercially
traded Products
Supplier
Page:
6
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Ø
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Invoicing
Address, Annex C “Contacts of the
Parties”
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The
invoices are payable net within 30 days.
Invoices
that are not paid within net 30 days will be subject to interest of 5% per year
on the amount due until paid in full.
Benefit
and risk shall pass to Swisscom Mobile upon Delivery at the Place of
Performance.
Commercial
Agreement
Commercially
traded Products
Supplier
Page:
7
4.3 Economical
Objectives and Discounts
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4.3.1
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Objectives
of Quantity and Turnover
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Swisscom
Mobile and Supplier may agree to any economical objectives and discounts in the
Handset Term Sheet.
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4.3.2
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Promotion
discount
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Swisscom
Mobile and Supplier may agree to any promotional discount in the Handset Term
Sheet.
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5
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Shipping
and Delivery Terms
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5.1 Inspection
of the Shipments and Acceptance of goods
The
inspection of the shipments and the acceptance of goods shall be performed after
the following procedure:
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1.
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Supplier
is instructed to advise the Delivery and to inform ALSO ABC (Distributor)
about the amount of palettes, which will be delivered the next Working
Day.
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2.
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With
respect to drop shipments the plumbs (seals) are inspected. Drop shipments
mean Deliveries, which are directly delivered from Supplier to
Operator/Distributor (at the Place of Performance 6.2) without
transhipment via a shipper (clearing ex
factory).
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3.
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The
amounts of pallets as well as the boxes are counted. Boxes are either
single items with box-labels, a cardboard box with several items or a
pallet.
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4.
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The
shipments are accepted with reservation. With reservation means, that
failings and discrepancies can be notified later on. Discrepancies are
reported to Supplier within an appropriate time (basically within 24
hours, latest within 5 Working Days).If after 5 days no discrepancies are
reported in writing to Supplier the reservations shall be deemed to be
removed and the Products shall be deemed to be accepted. Either Swisscom
Mobile or ALSO ABC, as the entitled distributor, call and admonish the
discrepancies at Supplier.
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5.
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Notwithstanding
above any missing or damaged cartons must be noted on delivering carriers
documentations.
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5.2 Place
of Performance (Delivery Address)
Place of
Performance and Delivery address is the following:
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Ø
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Place
of Performance, Annex C ”Contacts of the
Parties“
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Commercial
Agreement
Commercially
traded Products
Supplier
Page:
8
5.3 Terms
of Delivery and Shipping
Supplier
shall pay attention to the following rules at Delivery:
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-
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each item shall be marked with a
single EAN-Code to identify and to control it through the flow of
goods;
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-
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the Delivery has to take place
only by using normalised
euro-pallets;
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-
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Delivery shall pass with
unadulterated palettes or palettes with different Deliverables on it shall
be marked;
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-
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cardboard boxes shall not contain
several Products or Product
types;
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Delivery of print media:
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-
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print
media shall not be delivered on pallets without making packaging
units
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-
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related
to packaging units the following rules shall receive
attention:
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-
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single
pieces
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no
Delivery
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a
lot/pack
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100
pieces
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a
cardboard box
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1’000
pieces (10 lots/packs of 100 pieces)
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a
pallet
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50'000
pieces (50 cardboard boxes of 1000
pieces)
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-
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packaging
units shall be marked with the item-number (EAN-Code), name of the item;
pieces of the content and the
order-number
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6
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Import
Details and Shipping Instructions
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If any
import details have to be settled, they shall be done according to the Swisscom
Mobile procedure as defined in the Annex 2 of the Frame Agreement “Shipping
instructions for Suppliers of Swisscom Mobile AG”.
The
forwarding agent of the Supplier is expected to contact and cooperate with the
shipper from Swisscom Mobile regarding import matters.
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Ø
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Shipper Address, Annex C
“Contacts of Parties”
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Swisscom
Mobile hereby requests that Supplier shall instruct his forwarding agent to
clear all imports to be delivered to Swisscom Mobile through:
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VAT
No:
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457
432
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ZAZ-Account:
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7856-5
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Commercial
Agreement
Commercially
traded Products
Supplier
Page:
9
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7
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Commercial
Agreement Specifications
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7.1 Amendments
to the Commercial Agreement
Supplements
and amendments to this Commercial Agreement and its elements shall only be
valid, if agreed to in writing by both Parties. This shall also apply for the
waiver of this provision.
7.2 Severability
Clause
If any
Provision herein is incomplete or legally not executable for Legal reasons, the
other provisions shall remain in full force and effect. In such cases the
Parties shall agree to replace any void or invalid provisions by legally valid
provisions, which are as equivalent as possible to the original provisions in
terms of economy.
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8
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Term
and Termination of the Commercial
Agreement
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The
Commercial Agreement shall come into effect when signed by both
Parties.
If
Parties agree to continue their business relationship and are involved in
negotiations the provisions of the Commercial Agreement shall be valid until a
new Commercial Agreement will be signed.
Each
Party is authorised to terminate the Commercial Agreement after 31.12.2005 by
giving a [***] notice in writing to the other Party.
Commercial
Agreement
Commercially
traded Products
Supplier
Page:
10
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9
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Execution
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This
Commercial Agreement document shall be executed in two copies. Each Party shall
receive one signed copy.
Signatures
of the Parties
For
Supplier:
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Chief
Executive Officer
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Function
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Signature
and company stamp (Please write the name of the person signing in
CAPITALS)
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Signature
and company stamp (Please write the name of the person signing in
CAPITALS)
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Place
and date: _____________________
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For
Swisscom Mobile AG:
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Xxx
Xxxxxxxx
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Xxxxxx
Xxxxx
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Head
of Commercial Business
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Head
of Purchasing & Logistics
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Place
and date:
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