EXHIBIT 10.14
[LOGO OF ALTIGEN APPEARS HERE]
[LETTERHEAD OF ALTIGEN APPEARS HERE]
ALTIGEN COMMUNICATIONS INC.
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is made and entered into as
of this 12th day of June, 1998 (the "Effective Date") by and between Altigen
Communications Inc., a California corporation, with principal offices at 00000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000 ("AltiGen") and XXXXXX MICRO INC., a
Delaware corporation, with principal offices at 0000 X. Xx. Xxxxxx Xxxxx, Xxxxx
Xxx, XX 00000 ("Distributor,") both jointly referred to herein as "The
Parties".
1. Definitions
1.1 Dealer means any individual or entity which acquires the Products
for the express purpose of resale to others, whether such resale is of
the Product as a stand-alone product, as bundled and sold with other
software or hardware products, as integrated with other software or
hardware products or as sold with associated services.
1.2 End User means a licensee who acquires Products for Internal Use
(rather than distribution or resale) in accordance with the terms of an
End-User License Agreement substantially in the form of the End-User
License Agreement attached hereto as Exhibit A (the "End-User
Agreement").
1.3 Internal Use means use for purposes which do not directly produce
revenue for the End User. "Internal Use" does not include timesharing.
1.4 Intellectual Property means any patent, copyright, trade name,
trade xxxx, trade secret, know-how, mask work or any other intellectual
property right or proprietary information or technology, whether
registered or unregistered.
1.5 Product means software program packages and physical computer
hardware, including (1) a program code, in object code form only, on
diskette(s) or CD-ROM (the "Program"); (2) physical computer hardware
including computer boards, computer power supply, computer cables (the
"PC Hardware"); (3) instruction booklets and other information prepared
for End-Users concerning the use of the program and computer hardware
("Documentation"); (4) an End-User Agreement. The Products include only
those listed by title and functional description on the "Product and
Price List" attached hereto as Exhibit B.
1.6 Purchase Objectives means the minimum quantity of each Product
which Distributor commits to purchase quarterly during the term of this
Agreement, as mutually agreed upon and set forth in Exhibit C attached
hereto. These quarterly purchase objectives are to serve as goals and a
means to track progress but are non-binding.
1.7 Territory shall be described in Exhibit E.
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1.8 Grant of Distribution Right Subject to the terms and conditions set
forth in this Agreement, AltiGen hereby grants to Distributor a
non-exclusive, non-transferable right to (a) market and distribute the
Products solely to Dealers located in the Territory as stated in
Exhibit E and (b) use the Products for those purposes set forth in the
Agreement. Distributor shall not, knowingly directly or indirectly,
solicit sales of the Products outside of the Territory without the
prior written consent of AltiGen. AltiGen retains the right to sell the
Products directly to other parties in the Territory, including, by way
of illustration but not limitation, distributors, Dealers, and original
equipment manufacturers. Distributor shall have no right to modify the
Product or Documentation without the prior written approval of AltiGen.
Distributor agrees not to (a) reverse engineer, decompile, disassemble
or otherwise reduce the Product to human-perceivable form, or to
knowingly encourage or assist third parties in doing so or (b)
distribute the Product by rental or lease to end users. All rights not
expressly granted herein are retained by AltiGen. Distributor shall
have no right to grant a Dealer the right to make copies from a golden
master absent further agreement between AltiGen and the Distributor.
2. Ownership
Except as specified in this agreement, AltiGen does not grant to the
distributor any rights in or to any intellectual property related to
the product or to any materials furnished hereunder. The intellectual
property embodied in the product all modifications thereto, and all
documentation thereof, are proprietary to AltiGen, and AltiGen retains
all right, title and interest in and to such intellectual property.
3. Prices and Payments
3.1 Prices. Distributor shall pay AltiGen, for each Product and
upgrade, the list price for the Product as set forth on Exhibit B, less
any Distributor discount listed in Exhibit B. Both the AltiGen standard
list price and the Distributor's discount levels are subject to change
by AltiGen from time to time in its sole discretion upon thirty (30)
days written notice to Distributor. Orders requesting delivery after
the thirtieth (30) day of written notice of price or discount change
will be charged at the new price or discount level.
3.2 Distributor Pricing. Distributor is free to determine its own
resale prices for the Products. Although AltiGen may publish suggested
list prices, these are suggestions only and are not binding in any way.
However, Distributor agrees that any discounts it may offer (from
suggested applicable list prices that may be published by AltiGen)
shall be commercially reasonable and consistent with industry practices
providing Distributor commercially reasonable margins for its resale
activities with respect to the Products.
3.3 Dealer Pricing. Distributor shall inform each of its Dealers that
it is free to determine its own retail prices and that, although
AltiGen may publish suggested retail price lists, they are suggestions
only and are not binding in any way.
3.4 Initial Order. Within (Redated) of the Effective Date, Distributor
shall deliver to AltiGen a purchase order for an (Redated)
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3.5 Payment. Upon approval of credit by AltiGen, payment for additional
orders shall be due and payable within (Redated) following receipt of
invoice or on such terms as may be otherwise specified in AltiGen
invoice. Invoices or any undisputed invoice not paid when due can
accrue interest on an annual basis from the date due until paid of
(Redated) on any outstanding balance, or the maximum legal rate allowed
by law, whichever is less. All Products ordered in excess of any credit
limit shall be paid for as agreed upon by AltiGen and Distributor.
These terms and conditions will be communicated in writing within
forty-eight hours to Distributor to resolve or accept currency in
advance of shipment, by a letter of credit drawn upon a bank acceptable
to AltiGen and Distributor, a bank cashier's check, or a bank wire
transfer. AltiGen reserves the right to vary, change, or limit the
amount or duration of credit to be allowed to Distributor, either
generally or with respect to a particular order. In the event AltiGen
does not extend credit to Distributor, payment for all purchases
hereunder shall be made in advance of shipment or, at AltiGen' option,
C.O.D. If Distributor fails to meet its payment obligations under the
Agreement and such failure continues for (Redated) following receipt of
written notice from AltiGen this Agreement will or may be terminated
which is described in section 12.2 of this Agreement.
(a) Right to Withhold. Notwithstanding any other provision in this
Agreement to the contrary, Distributor shall not be deemed in default
if it withholds any specific amount to AltiGen because of a legitimate
dispute between the parties as to that specific amount pending the
timely resolution of the disputed amount.
3.6 Price Protection.
(a) Distributor Price Protection. AltiGen shall notify Distributor of
the effective date of a (Redated) for any of the Products covered
herein. All inventory acquired by Distributor from AltiGen prior to the
effective date of the (Redated) and not yet sold or under a contract
for sale will be granted price protection as set forth herein. This
will also include any product order accepted by AltiGen that has not
shipped, all product in transit from AltiGen to Distributor's warehouse
and product in transit between Distributor's warehouses during the less
than (Redated) period before the effective date of the (Redated) and
not yet sold or under a contract for sale will be granted price
protection as set forth herein. (Redated) To obtain price protection,
within (Redated) of receipt of AltiGen' notice of the (Redated)
Distributor shall provide to AltiGen a written inventory report showing
by part number the quantity of each AltiGen Product in the
Distributor's inventory as of the effective date of the (Redated) Price
protection will not be granted in the case of a temporary (Redated) or
special promotion.
(b) Dealer Price Protection. On a case by case basis, AltiGen will
xxxxx xxxxx protection for Distributor's dealers at AltiGen's
discretion. To obtain price protection for its Dealers, Distributor (i)
shall provide to AltiGen a written shipment report showing by part
number the quantity of each AltiGen Product shipped to a Dealer less
than (Redated) before the effective date of this (Redated) including
the
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identity of each Dealer, the Products sold, and the date of shipment
and (ii) shall provide, or require its Dealers to provide, a written
Dealer inventory report showing by part number the quantity of each
AltiGen Product in Dealer's inventory as of the effective date of the
(Redated). If Distributor provides such reports to AltiGen within
(Redated) of Distributor's receipt of AltiGen' notice of a price
decrease, AltiGen shall credit the Distributor's account for the
difference between the invoice price charged to Distributor and the
reduced price for those copies shipped by Distributor to its Dealers
less than (Redated) before the effective date of the (Redated) and not
yet sold or under contract for sale. (Redated)
3.7 Stock Rotation.
(a) Inventory Balancing. Provided that the Distributor issues a
simultaneous offsetting purchase order, Distributor may, once during
each quarter, return for credit Product purchased for up to a maximum
of (Redated) dollar sales invoiced by AltiGen during the immediately
preceding quarter. The credit issued for the returned inventory will be
based on the (Redated) at which the Products were available to
Distributor during the period commencing with the date on which the
Product was purchased and ending on the date the Product was returned,
and may be used on a dollar-for-dollar basis solely to purchase
additional Product pursuant to the offsetting purchase order. The right
to balance inventory granted herein must be exercised by the last day
of the second month of the quarter. Distributor shall submit a request
for authorization to return Product for inventory balancing which shall
state the quantity of Product to be returned. Upon receipt of such
request, AltiGen shall issue a Return of Materials Authorization (RMA)
number no later than 1 week after the request is acknowledged by
AltiGen, Inc. Inventory returned under this section must be accompanied
by a return of materials authorization number assigned by AltiGen and
(i) in merchantable condition, in its-factory-sealed packaging. -All
Product returned under this subsection (a) shall be returned within
thirty (30) days of the date of issuance of the return of materials
authorization number. AltiGen shall pay for the shipping of returned
Products to AltiGen and Distributor shall pay for the shipping of
replacement Product sent to Distributor.
(b) Defective Product/Dead on Arrival (DOA). Distributor may return any
product to AltiGen that its customer finds defective as detailed in the
End User Agreement described in Exhibit A. Inventory returned under
this section must be accompanied by a return of materials authorization
number assigned by AltiGen. All Product returned under this section
shall be returned within thirty (30) days of the date of issuance of
the return of materials authorization number, and if the returned
Product is returned because defective by virtue of being in breach of
the warranty provided for in the End User Agreement, returned with the
entire contents of such Product package. The credit issued for the
returned products will be based on the Products purchase price, less
any discounts or credits previously received. AltiGen shall pay for the
shipping of returned Products to AltiGen and for the shipping of
replacement Product sent to Distributor. AltiGen will specify account
number and carrier at time of RMA issuance.
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(c) Product Refresh. AltiGen may, at its sole discretion, modify the
Products. For purposes of this Agreement, AltiGen shall have sole
discretion as to whether a Product is deemed to be a new version of an
existing Product to be provided to Distributor under the terms of this
Agreement or a new product requiring execution of an appendix to this
Agreement prior to distribution. Once a new version of a Product
covered by this Agreement begins shipping, Distributor shall have
thirty (30) days from the first AltiGen shipment date of the new
version to Distributor, or from written notification by AltiGen of the
new version, whichever is later, (i) to submit an offsetting purchase
order for an equal dollar-for-dollar value of the new version of the
Product and (ii) to return Product from the prior release from
Distributor's inventory that was shipped by AltiGen to Distributor
within the previous ninety (90) days. Such returns shall be shipped at
AltiGen expense using AltiGen Communication's account number and
carrier which will be specified at time of RMA issuance, and the
offsetting Purchase Order shipment will be paid for by Distributor as
described in section 5.7 and 5.8 of this agreement. Returned Product
will be exchanged by AltiGen on a dollar for dollar basis, proportional
with any price increase or decrease, with the new version of the
Product and shipped to Distributor at AltiGen expense. Product returned
under this provision must be in merchantable condition and in its
original factory-sealed packaging. The right to refresh Product under
this subsection (b) shall be in addition to Distributor's inventory
balancing right under subsection (a) above.
(d) Product Discontinuation. AltiGen shall provide Distributor with
thirty (30) days written notice prior to AltiGen' discontinuation of
any Product. Upon receipt of such notice, Distributor shall have the
right to return all discontinued Products purchased within sixty (60)
days of the notice of discontinuation for a credit to Distributor's
account of the Product's purchase price less any discounts or credits
previously received. The rights to return discontinued Product under
this subsection (d) shall be in addition to Distributor's inventory
balancing right under subsection (a) above.
3.8 Distributor Financial Condition. Distributor represents and
warrants that it is and at all times during the term of this Agreement
shall remain in good financial condition, solvent and able to pay its
bills when due. Distributor further represents and warrants that it has
and at all times during the term of this Agreement shall retain the
ability to order and pay for all Product purchased. From time to time,
on reasonable notice from AltiGen, Distributor shall furnish Annual
Reports, 10K and 10Q reports.
3.9 Taxes. Prices calculated in accordance with Exhibit B are exclusive
of all applicable taxes. Distributor agrees to pay all taxes associated
with the marketing, distribution and delivery of the Products ordered,
including but not limited to sales, use, excise, added value and
similar taxes and all customs, duties or governmental impositions, but
excluding taxes on AltiGen' net income. Any tax or duty AltiGen may be
required to collect or pay upon the marketing or delivery of the
Products shall be paid by Distributor and such sums shall be due and
payable to AltiGen upon delivery. If claiming a tax exemption,
Distributor must provide AltiGen with valid tax exemption certificates
at the time of invoicing.
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4. PRODUCT CHANGES
AltiGen shall have the right, in its sole discretion, without liability
to Distributor, with written thirty (30) day notice, to (a) change the
Products available on the Product List, (b) change the design, or
discontinue developing, producing, licensing or distributing any of the
Products covered by this Agreement, and (c) announce new products to
which the terms and conditions of this Agreement do not apply. The
parties agree that additional Products may be added to the Agreement by
execution of an appendix to this Agreement setting forth any special
terms, conditions, modifications or deletions necessary for the
additional Products. Additional Products shall be deemed to be added to
this Agreement to the extent AltiGen accepts any purchase orders for
Products not otherwise listed on the Product List.
5. ORDERS
5.1 Procedure. All orders for Products placed by Distributor shall be
in writing, or if placed orally, shall be confirmed in writing within
ten (10) business days after such oral order.
5.2 Acceptance of Orders. All orders for Products by Distributor shall
be subject to acceptance by AltiGen and shall not be binding on AltiGen
until the earlier of written confirmation or shipment and, in the case
of acceptance by shipment, only as to the portion of the order actually
shipped. If a rejection is not provided within (5) days of written
receipt of the order, it shall be deemed accepted.
5.3 Controlling Terms. The terms and conditions of this Agreement and
of the applicable AltiGen order confirmation pursuant to Section 5.2
("Acceptance of Orders") above, shall apply to each order accepted or
shipped by AltiGen hereunder. Any terms or conditions appearing on the
face or reverse side of any purchase order, acknowledgment, or
confirmation other than confirmation pursuant to Section 5.2 above that
are different from or in addition to those required hereunder shall not
be binding on the parties, even if signed and returned, unless both
parties hereto expressly agree in a separate writing to be bound by
such separate or additional terms and conditions.
5.4 AltiGen Order Cancellation & Obligation to Ship in Presence of
Breach. Even where AltiGen accepts a purchase order, AltiGen reserves
the right to cancel or suspend any orders placed by Distributor and
accepted by AltiGen, or to refuse or delay shipment thereof, at the
time of scheduled shipment if Distributor (a) fails to make any payment
as provided herein or in any invoice, (b) fails to meet credit or
financial requirements established by AltiGen, or (c) otherwise fails
to comply with the terms and conditions of this Agreement. If
Distributor has a legitimate dispute of an invoice under section 3.5b,
orders will not be held or canceled as a result.
5.5 Distributor Order Cancellation. Orders accepted by AltiGen may be
canceled without penalty if written notice of cancellation is given to
AltiGen and the notice is received by AltiGen at least (Redated) prior
to the scheduled shipment date. Orders canceled less than (Redated)
prior to the scheduled shipment date will be subject to a cancellation
payment of (Redated) of the invoice value of the canceled order. In no
event may Distributor cancel any order or any portion of an order after
shipment.
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5.6 Product Availability. AltiGen will use reasonable efforts to fill
orders for Products and meet requests for shipment dates subject to
Product availability and AltiGen production and supply schedules.
Should orders for Products exceed AltiGen' available inventory, AltiGen
will allocate its available inventory and make deliveries on a basis
AltiGen deems equitable, in its sole discretion, and without liability
to Distributor on account of the method of allocation chosen or its
implementation. AltiGen shall not be liable to Distributor or any third
party for any damages due to AltiGen' failure to fill any orders or for
any delay in delivery or error in filing any orders for any reason
whatsoever.
(a) Distributor requires concurrent with the execution of this
Agreement Export Administration Regulations product classification and
supporting documentation: Certificate of Origin (General Use and/or
NAFTA), Export Commodity Control Number's; (ECCN's), General License
and/or Individual Validated License information and Schedule
"B"/Harmonized Numbers. This applies when distribution rights granted
under Section 1.7 are outside the United States for the initial
Product/s and when additions or changes to these Products occurs.
(b) Product Marking AltiGen will clearly xxxx each unit of Product with
the Product name and computer compatibility. Such packaging will also
bear a machine-readable bar code identifier scannable in standard
Uniform Product Code (UPC) format. The bar code must identify the
Product as specified by the Uniform Code Council (UCC). If the AltiGen
or Distributor customers' require serial number tracking the serial
number must be clearly marked and bar coded on the outside of the
individual selling unit. The bar code shall fully comply with all
conditions regarding standard product labeling set forth in Exhibit B
in the then-current Distributor Guide to Bar Code: The Product Label.
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AltiGen may be assessed a reasonable per unit charge for all Product
not in conformance herewith.
5.7 Delivery. AltiGen will ship Products FOB Destination, unless
otherwise agreed in writing, to Distributor's North American designated
location or freight forwarder via ground transport. Distributor may
change the designated locations by providing AltiGen with written
notice of such change, and the notice is received by AltiGen at least
fifteen (15) days prior to the estimated shipment dates. AltiGen shall
ship all Product in accordance with instructions specified in
Distributor's AltiGen Routing Guide attached hereto as Exhibit F.
AltiGen shall, to the extent possible, assist Distributor in making
claims with carriers in the event of loss or damage in transit.
5.8 Risk of Loss. In the case of shipments to shipping destinations
within the United States, exclusive of the rights retained under the
Agreement in trademarks, patents, copyrights, trade names, trade
secrets and intellectual property, and all risk of loss or damage for
any Product shall pass to Distributor upon delivery by AltiGen to the
freight carrier regardless of whether AltiGen or the Distributor has
designated the carrier. Title to the Products will be passed to the
Distributor once sold to dealer or paid for by Distributor which ever
occurs first.
[In the case of shipments to shipping designations outside the
United States, Distributor and AltiGen expressly agree that
beneficial and legal title to, ownership of, right to possession
of, control over, and risks of
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loss and damage to, the products shall remain with AltiGen
until the shipment physically arrives at the port of entry in
the importing country (or at a bonded warehouse within the
jurisdictional boundaries of Canada or Mexico if Distributor
requests shipment to those countries). The time of payment,
whether before or after shipment, the place or medium of
payment, the method of shipment, the manner of consignment,
whether to AltiGen, or its agent, to Distributor or
Distributor's agent, or any agent for both, or any document in
relation to any sale under the Agreement, shall in no way
limit or modify the right of AltiGen as the legal and
beneficial owner of the products, its right to control and its
right to possession of such goods until they physically arrive
at the port of entry of the importing country (or at a bonded
warehouse within the jurisdictional boundaries of Canada or
Mexico if Distributor requests shipment to those countries).
It is expressly understood that the foregoing shall not be
construed to mean that AltiGen has merely retained bare legal
title for security purposes, but rather retains legal title
and full beneficial ownership until the shipment arrives at
the port of entry in the country of destination (or at a
bonded warehouse within the jurisdictional boundaries of
Canada or Mexico if Distributor requests shipment to those
countries.) If Distributor insures the shipment, insurance
policies will protect the interest of AltiGen as the legal
owner of the merchandise until title transfers as set forth
above.]
6. DISTRIBUTIONS OBLIGATIONS
6.1 Distributor Distribution. Distributor shall distribute or market
Product: (i) solely to resellers approved by AltiGen under its
Authorized Dealer Program, (ii) subject to an End-user License
Agreement, (iii) subject to Distributor's standard terms and conditions
of sale to it's resellers which do not alter or contradict this
Agreement, and (iv) in the form received from AltiGen. Distributor
shall neither add to nor remove any documentation included by AltiGen
with the Product.
6.2 Authorized Dealer Program. AltiGen has instituted an AltiGen
Authorized Dealer Program. Distributor agrees to market the Products in
compliance with AltiGen's Authorized Dealer Program.
6.3 Business Plan. Within ninety (90) days of the Effective Date of the
contract, Distributor and AltiGen will co-author a business plan
setting forth Distributor's plans for promoting the Products, which
will be reviewed semi-annually, at which time objectives and
performance will be evaluated. Distributor agrees to provide an updated
business plan in accordance with the schedule for updating such as
specified by AltiGen.
6.4 Purchase Objectives; Inventory. Distributor and AltiGen shall agree
upon quarterly Purchase Objectives. The initial Purchase Objectives are
stated in Exhibit C with on-going purchase and business objectives
described in the business plan outlined in 6.3. Distributor shall
warehouse and order to meet market demand and will deliver to resellers
in a timely manner. Distributor will inventory 30 days of product in
each of its named warehouses or as deemed by market conditions.
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65. Point of Sale and Inventory Reports. During the term of this Agreement,
Distributor will provide AltiGen standard sales-out and inventory reports via
its electronic Bulletin Board. Distributor is on a 4-4-5 week calendar schedule
starting with January 5, 1998. Each report will be ready on the 1/st/ Tuesday of
the new month. This report will include the following: (i) - State and zip code:
(ii) - Products purchased in this month's reporting, including returns; (iii)
- Current distributor's inventory on a weekly basis, reflecting the previous
Friday's close of business inventory; (iv) - Six month trailing history of
product sold by region; (v) - List of Distributor's open purchase orders. Such
report, with respect to a calendar month, shall be posted. Distributor shall
also provide non-standard reporting data including reseller name and address
subject to the terms and conditions of a separate Proprietary Information Non-
Disclosure Agreement attached hereto as Exhibit G.
6.6 Customer Satisfaction. Distributor agrees that the Products marketed under
this Agreement are technically complex and require high-quality, individualized
pre-marketing and post-marketing support. This support is necessary to achieve
and maintain high customer satisfaction. Therefore, Distributor agrees that high
customer satisfaction is a condition of distribution authorization by AltiGen.
The distribution channels established by AltiGen, and the obligations placed on
distributors, exist to ensure high customer satisfaction. Distributor agrees to
market the Products only in accordance with this Agreement. In addition, in
order to assure high customer satisfaction, Distributor agrees to:
. Report to AltiGen promptly and in writing all suspected and actual
problems with any product.
. maintain a shipment report identifying for each Dealer, the Products
sold, the date of sale, and each Product's serial number;
. Retain all shipment reports for five years after the date of sale, and
assist AltiGen, upon request, in tracing a Product to a Dealer, in
order to distribute critical Product information, locate a Product for
safety reasons, or discover unauthorized marketing or infringing acts;
. Conduct business in a manner which reflects favorably at all times on
the Products, goodwill and reputation of AltiGen.
. Avoid deceptive, misleading or unethical practices, which are or might
be detrimental to AltiGen or its products.
. Refrain from making any false or misleading representations with
regard to AltiGen or its products; and
. Refrain from making any representations, warranties or guarantees to
customers or to the trade with respect to the specifications, features
or capabilities of the Products that are inconsistent with the
literature distributed by AltiGen.
6.7 Promotional Efforts. Distributor shall use its best efforts to market and
distribute the Products to Dealers in the Territory. Distributor may advertise
the
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Products in advertising media of Distributor's choice, provided that
the primary audience or circulation is located in the Territory.
Distributor shall make full use of all promotional material supplied by
AltiGen and make available literature and other information that
AltiGen requires to be transmitted to such Dealers. In all advertising
and promotion of the Products, Distributor shall comply with AltiGen
standard cooperative advertising policies as specified from time to
time by AltiGen.
6.8 Demonstration System. Distributor shall maintain a demonstration
system capable of supporting the most technically advanced Products.
Distributor shall use such demonstration system both to facilitate its
ability to fulfill its Dealer support obligations, and to support its
sales efforts.
6.9 Distributor Personnel. AltiGen will provide mutually agreed upon
levels of training for Distributor's sales and technical personnel.
Distributor shall train and maintain a sufficient number of capable
technical and sales personnel to serve the demands of Dealers for the
Products, for service and support of the Products, call on all Dealers
with reasonable frequency and answer promptly all Dealer inquiries or
requests for information regarding the Products. Distributor and its
staff shall develop and maintain sufficient knowledge of the industry,
the Products, and competitive offerings (including specifications,
features, and functions) so as to be able to demonstrate and support
the Products for Dealers. Distributor shall provide all Dealers with
technical support and other assistance appropriate for the promotion,
marketing, and distribution of the Products. Distributor shall attend
AltiGen distribution meetings.
7. Support and Maintenance
AltiGen shall provide Distributor (but not its Dealers, and not End
Users which purchase from such Dealers) with the support and maintenance
described in Exhibit D hereto free of charge during the term of this Agreement.
AltiGen may provide Dealers and End Users with support and maintenance under a
separate agreement. In order to have a high degree of customer satisfaction and
technical expertise Distributor and AltiGen will have to perform on-site
training for Distributor's Technical Support personnel. This will be coordinated
at a later date.
8. Trademarks and Confidential Information
8.1 Trademarks. AltiGen shall have and retain sole ownership of
AltiGen's logo, trade names and trademarks ("Trademarks"), including
the goodwill pertaining thereto. AltiGen hereby grants to Distributor
the right to use and display the Trademarks solely in connection with
and solely to the extent reasonably necessary for the marketing,
distribution, and support of the Products within the Territory in
accordance with the terms and conditions of this Agreement. Distributor
shall not do or suffer to be done any act or thing that would impair
AltiGen's rights in its Trademarks or damage the reputation for quality
inherent in the Trademarks. AltiGen's has the right to take all action
which it deems necessary to ensure that the advertising and promotional
materials related to the Products utilized by Distributor are
consistent with the reputation and prestige of the Trademarks.
Distributor shall market, distribute, and support the Products only
under the Trademarks, and not any other trademark or logo. Distributor
shall not use the Trademarks or any other trademarks or trade names of
AltiGen or any word, symbol, or design confusingly
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similar thereto, as part of its corporate name, or as part of the name
of any product of Distributor. Distributor shall not (i) remove, alter
or overprint the Products' copyright notices, trademarks, and logos, or
packaging, (ii) attach any additional trademarks to the Products
without AltiGen's prior written consent or (iii) affix any of the
Trademarks to any non-AltiGen products. Distributor agrees that any
goodwill which accrues because of Distributor's use of the Trademarks
shall become AltiGen's property. Distributor further agrees not to
contest AltiGen's Trademarks or tradenames, or to make application for
registration of any AltiGen Trademarks or tradenames.
8.2 Confidential Information. During the term of this Agreement, and
for a period of three (3) years thereafter, The Parties will maintain
in confidence any confidential or proprietary information of The
Parties disclosed to one another including, without limitation, any
information regarding scientific, engineering, manufacturing,
marketing, business plan, financial or personnel matter relating to The
Parties, whether in oral, written, graphic or electronic form
("Confidential Information"). The Parties will not use, disclose or
grant use of such Confidential Information except as expressly
authorized by The Parties. To the extent that disclosure is authorized
by The Parties, The Parties will obtain prior agreement from their
employees, agents or consultants to whom disclosure is to be made to
hold in confidence and not make use of such information for any purpose
other than those permitted by The Parties. The Parties will use at
least the same standard of care as they use to protect its own
Confidential Information to ensure that such employees, agents or
consultants do not disclose or make any unauthorized use of such
Confidential Information. The Parties will promptly notify each other
upon discovery of any unauthorized use or disclosure of the
Confidential Information.
8.3 Exceptions. The obligations of confidentiality contained in
Section 8.2 will not apply to the extent that it can be established by
Distributor by competent proof that such Confidential Information:
(a) was already known to the parties, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the
parties;
(c) became generally available to the public or otherwise part
of the public domain after its disclosure and other than
through any act or omission of the parties in breach of
this Agreement;
(d) was disclosed to the parties, other than under an
obligation of confidentiality, by a third party who had no
obligation to the disclosing party not to disclose such
information to others.
9. Indemnification
9.1 AltiGen Infringement Indemnity. Subject to the limitations set
forth herein below, AltiGen shall defend Distributor with respect to
any claim, suit or proceeding brought against Distributor to the extent
it is based upon a claim that any Product sold pursuant to this
Agreement infringes upon any U.S. patent, U.S. trademark, U.S.
copyright or U.S. trade secret of any third party; provided, however,
that Distributor
11
(i) promptly notifies AltiGen in writing of such claim, suit or
proceeding; (ii) gives AltiGen the right to control and direct
investigation, preparation, defense and settlement of any claim, suit
or proceeding; and (iii) gives assistance and full cooperation for the
defense of same, and, further provided, that AltiGen's liability with
respect to portions of Products provided by or licensed from third
parties will be limited to the extent AltiGen is indemnified by such
third parties. AltiGen shall pay any resulting damages, costs and
expenses finally awarded to a third party, but AltiGen shall not be
liable for such amounts, or for settlements incurred by Distributor,
without AltiGen's prior written authorization. If a Product is, or in
AltiGen's opinion might be, held to infringe as set forth above.
AltiGen may, at its option, replace or modify such Product so as to
avoid infringement, or procure the right for Distributor to continue
the use and resale of such Product. If neither of such alternatives is,
in AltiGen's opinion, reasonably possible, the infringing Product shall
be returned to AltiGen, and AltiGen's sole liability, in addition to
its obligation to reimburse any awarded damages, costs and expenses set
forth above, shall be to refund the purchase price paid for such
Products by Distributor.
9.2 Exclusions. The provisions of the indemnity provided in Section
9.1 (with respect to infringement) shall not apply with respect to any
instances of alleged infringement based upon or arising out of the use
of such Products in any manner for which the Products were not
designed, or for use of Products other than the uses and distributions
designated by AltiGen, for use of any Product that has been modified by
Distributor or any third party, or for use of any Product in connection
with or in combination with any equipment, devices or software that
have not been supplied by AltiGen. Notwithstanding any other provisions
hereof, the foregoing indemnity shall not apply with respect to any
infringement based on Distributor's activities occurring subsequent to
its receipt of notice of any claimed infringement unless AltiGen shall
have given Distributor written permission to continue to market and
distribute the allegedly infringing Product.
9.3 Entire Liability and Limitation. THE FOREGOING SECTIONS 10.1 AND
10.2 STATE THE SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR AND THE ENTIRE
LIABILITY AND OBLIGATION OF ALTIGEN WITH RESPECT TO INFRINGEMENT OR
CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER
INTELLECTUAL PROPERTY RIGHT BY THE PRODUCTS OR ANY PART THEREOF.
9.4 Product Defect Indemnity: Subject to the limitations set forth
herein below, AltiGen shall defend Distributor with respect to any
claim, suit or proceeding brought against Distributor to the extent it
is based upon a claim that any property damage, personal or bodily
injury or other damage has resulted from a defect in the Products;
provided, however, that Distributor (i) promptly notifies AltiGen in
writing of such claim, suit or proceeding; (ii) gives AltiGen the right
to control and direct investigation, preparation, defense and
settlement of any claim, suit or proceeding; and (iii) gives assistance
and full cooperation for the defense of same, and, further provided,
that AltiGen's liability with respect to portions of Products provided
by or licensed from third parties will be limited to the extent AltiGen
is indemnified by such third parties. AltiGen shall pay any resulting
damages, costs and expenses finally
12
awarded to a third party, but AltiGen shall not be liable for such
amounts, or settlements incurred by Distributor, without AltiGen's
prior written authorization.
9.5 Indemnity by Distributor. DISTRIBUTOR AGREES TO INDEMNITY AND
HOLD ALTIGEN HARMLESS FROM ANY CLAIMS, SUITS, PROCEEDINGS, LOSSES,
LIABILITIES, DAMAGES, COSTS AND EXPENSES (INCLUSIVE OF ALTIGEN'S
REASONABLE ATTORNEYS' FEES) MADE AGAINST OR INCURRED BY ALTIGEN AS A
RESULT OF NEGLIGENCE, MISREPRESENTATION, OR ERROR OR OMISSION ON THE
PART OF DISTRIBUTOR OR REPRESENTATIVE OF DISTRIBUTOR. DISTRIBUTOR SHALL
BE SOLELY RESPONSIBLE FOR, AND SHALL INDEMNIFY AND HOLD ALTIGEN
HARMLESS FROM, ANY CLAIMS, WARRANTIES OR REPRESENTATIONS MADE BY
DISTRIBUTOR OR DISTRIBUTOR'S EMPLOYEES OR AGENTS WHICH DIFFER FROM THE
WARRANTY PROVIDED BY ALTIGEN IN ITS END USER AGREEMENT.
9.6 Mutual Indemnity Regarding Personal Injury and Other Damages.
Each party shall indemnify and hold the other harmless from and against
any and all claims, actions, damages, demands, liabilities, costs and
expenses, including reasonable attorney's fees and expenses, resulting
from any act or omission of the acting party or its employees or agents
under this Agreement that causes or results in property damage,
personal injury or death.
10. Warranty
10.1 AltiGen Warranty. AltiGen warrants the Products TO END-USERS ONLY
pursuant to the terms and conditions of the End User Agreement,
provide, however, Distributor shall be entitled to rely on the End User
Warranty for purposes of returns of Product and indemnities a copy of
which is attached to this Agreement as Exhibit A. In addition AltiGen
warrants the following:
(a) It has good transferable title to the products
(b) There are no suits or proceedings pending or threatened
which allege any infringement by the Products of any
patents, copyrights, trademarks, trade secrets or any other
intellectual property rights of a third party Product sales
to Distributor do not in any way constitute violation of any
law, ordinance, rule or regulation in the distribution
territory
(c) The Products will properly (a) record, store process,
calculate or present calendar dates falling on or after (and
if applicable, spans of time including) January 1, 2000 as a
result of the occurrence, or use of data consisting of such
dates and (b) calculate any information dependent on or
relating to dates on or after January 1, 2000 in the same
manner, and with the same functionality, data integrity and
performance, as such Product records, stores, processes,
calculates and presents calendar dates on or before December
31, 1999, or information dependent on or relating to such
dates
13
(d) The Products have been or will be at the time of
shipment certified as a Class B computing device as required
by the rules of the U.S.A. Federal Communications Commission
(e) AltiGen will not label any of its products as being
"Made in America", "Made in USA," or with similar wording,
unless substantially all components of such Products are in
fact made in the United States of America
10.2 Limitations and Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTION 10.1 ABOVE, ALTIGEN EXPRESSLY DISCLAIMS ALL WARRANTIES
EXPRESSED OR IMPLIED RELATING TO THE PRODUCTS, AND FURTHER EXPRESSLY
EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR
PURPOSE OR MERCHANTABILITY.
10.3 NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR
REPRESENTATION CONCERNING THE PERFORMANCE OF THE PRODUCTS OTHER THAN AS
PROVIDED IN THE END USER AGREEMENT. DISTRIBUTOR SHALL MAKE NO OTHER
WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF ALTIGEN.
10.4 Distributor's Warranty. Distributor hereby represents and
warrants to AltiGen that neither this Agreement (or any term hereof)
nor the performance of or exercise of rights under this Agreement, is
restricted by, contrary to, in conflict with, ineffective under,
requires registration or approval or tax withholding under, or affects
AltiGen's intellectual property rights (or the duration thereof) under,
or will require any compulsory licensing under, any law or regulation
of any organization, country, group of countries or political or
governmental entity to which Distributor is subject.
11. Limitation on Liability
11.1 Limitation of Liability. OTHER THAN AS PROVIDED IN SECTION 9
ABOVE THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER HEREUNDER SHALL
NOT EXCEED (REDATED)
11.2 Waiver of Consequential Damages. IN NO EVENT WILL ALTIGEN OR
DISTRIBUTOR BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF INCOME,
LOSS OF PROFITS OR LOSS OF DATA, EVEN IF ALTIGEN HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH
THE GRANT OF THE LICENSE HEREUNDER.
11.3 Third Party Claims. AltiGen shall not be liable for any claim by
Distributor based on any third party claim, except as stated in Section
10 of the Agreement.
12. Term and Termination
12.1 Term. Subject to the provisions of Sections 13.2 and 13.3 below,
this Agreement is valid for a term of one year and shall be renewed
automatically for
14
additional one year terms provided that each party shall have the right
to terminate this Agreement for convenience upon ninety (90) days
written notice prior to the end of the initial term or any subsequent
term of the Agreement.
12.2 Termination for Cause. Either party may terminate this
Agreement for cause upon thirty (30) days written notice to the other
party if such other party materially breaches this Agreement and such
material breach is not cured within the thirty (30) day period
following delivery of notice. Either party shall have the right to
terminate this Agreement immediately in the event the other party
terminates its business, or becomes subject to any bankruptcy or
insolvency proceeding under Federal or State statute, and such petition
is not dismissed within sixty (60) days.
12.3 Effect of Termination. For a period of sixty (60) days
following termination of this Agreement, Distributor may distribute any
Products in Distributor's possession at the time of termination or at
it's option return any product in inventory, provided, however, that if
AltiGen has terminated the Agreement pursuant to Section 12.2,
Distributor's right to distribute the Products shall immediately
terminate. Following any permitted distribution, Distributor shall
return to AltiGen or, at AltiGen's request, destroy the copies of the
Products and Documentation then in its possession. In addition,
Distributor shall be entitled to retain one (1) copy of the Product
following termination solely for the purposes of providing support to
Dealers and End Users. AltiGen shall apply the value of any returned
Products to any outstanding credit balance in Distributor's account.
The termination of this Agreement shall not act to terminate the
licenses granted to Dealers or End Users pursuant to this Agreement.
(i) For a ninety day (90) period after termination, Distributor may
send back inventory received from its resellers to AltiGen. Product
returned under this provision must be in merchantable condition and in
its original factory-sealed packaging.
12.4 Payment upon Termination. Upon termination of the Agreement by
AltiGen for cause, the due dates of all outstanding invoices for
Products will become due and payable thirty (30) days from date of
termination minus returns received, even if longer terms had been
provided previously. After the ninety - (90) day period a final true-up
of inventory and monies will take place. If AltiGen owes Distributor
monies, AltiGen will issue a check to Distributor. All orders or
portions of orders remaining un-shipped as of the effective date of
such termination shall automatically be canceled.
13. Miscellaneous
13.1 Nonexclusivity. AltiGen retains the right to market,
distribute, and support the Products in the Territory directly to
or through any person or entity on any terms deemed desirable by
AltiGen in its sole discretion. Any discounts extended to other
like distributors that exceed the discount schedule (see Exhibit
"B") in effect at the time between AltiGen and Distributor shall
also be extended to distributor.
13.2 Modification and Amendment. Except with respect to Exhibit B
hereof, this Agreement may be modified or amended only in writing
by the consent of both parties.
13.3 Survival. Sections 5.8, 8, 9, 10,11, 12.3, 12.4, 13 shall
survive termination of this Agreement for three (3) years.
15
13.4 Governing Law. This Agreement is made in accordance with and
shall be governed and construed under the laws of the State of
California, as applied to agreements executed and performed
entirely in California by California residents.
13.5 Toll Fraud. Dealer is forbidden from stating or implying that
AltiGen Products provide immunity from fraudulent intrusion (Toll
Fraud). Dealer must use this language on all sales materials and
contract involving AltiGen Products.
13.6 Notices. All notices, demands, or consents required or
permitted under this Agreement shall be in writing and shall be
delivered personally or sent by a national overnight courier
service or by registered or certified, return receipt requested
mail to the other party at the addresses first set forth above.
All notices, demands, or consents shall be deemed effective upon
personal delivery or five (5) days following dispatch via first
class mail or day three (3) following deposit with any national
overnight courier service in accordance with this section.
13.7 No Partnership of Joint Venture. No agency, employment,
partnership, joint venture, or other joint relationship is
created hereby, it being understood that Distributor and AltiGen
are independent contractors vis-a-vis one another and that
neither has any authority to bind the other in any respect
whatsoever.
13.8 Force Majeure. Neither party shall be deemed to be in default
of or to have breached any provision of this Agreement as a
result of any delay, failure in performance, or interruption of
service resulting directly or indirectly from acts of God, acts
of civil or military authority, civil disturbance, war, strikes
or other labor disputes, fires, transportation contingencies,
laws, regulations, acts or orders of any government agency or
official thereof, other catastrophes or any other circumstances
beyond the party's reasonable control.
13.9 Export Control. The parties acknowledge that the Products may
be subject to the export control laws of the United States of
America, including the U.S. Bureau of Export Administration
regulations, and hereby agree to obey any and all such laws. The
parties agree to comply with the U.S. Foreign Corrupt Practices
Act of 1977, as amended, and with all applicable foreign laws
relating to the use, importation, licensing or distribution of
the Products.
13.10 Assignment. Neither party may assign this Agreement or any of
its rights, duties or obligations under this Agreement to any
third party without the other party's prior written consent,
which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, either party may assign its rights and delegate
its obligations under this Agreement without the consent of the
other party to a purchaser of all or substantially all of its
voting stock or capital assets or to an entity with which such
party merges or is consolidated.
13.11 Severability and Waiver. In the event any provision of this
Agreement is held to be invalid or unenforceable, the valid or
enforceable portion thereof and the remaining provisions of this
Agreement will remain in full force and effect. Any waiver
(express or implied) by any party of any default or breach of
this
16
Agreement shall not constitute a waiver of any other or
subsequent default or breach.
13.12 Entire Agreement. This Agreement and all Exhibits referred to
herein embody the entire understanding of the parties with
respect to the subject matter hereof and shall supersede all
previous communications, representations or understandings,
either oral or written, between the parties relating to the
subject matter hereof.
13.13 Headings. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or intent of any such
section nor in any way affect this Agreement.
13.14 Parties Advised by Counsel. This Agreement has been negotiated
between unrelated parties who are sophisticated and knowledgeable
in the matters contained in this Agreement and who have acted in
their own self interest. In addition, each party has been
represented by legal counsel. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the purpose
of the parties, and this Agreement shall not be interpreted or
construed against any party to this Agreement because that party
or any attorney or representative for that party drafted this
Agreement or participated in the drafting of this Agreement.
13.15 Insurance AltiGen shall carry insurance coverage product
liability/completed operations of (redated) primary each
occurrence and (redated) within ten (10) days of full execution
of this Agreement, AltiGen shall provide Distributor with a
Certificate of Insurance. This Certificate of Insurance must
include: (i) a broad form endorsement naming Distributor as an
additional insured, and (ii) a mandatory thirty (30) day notice
to Distributor of insurance cancellation.
17
In Witness Whereof, the parties hereto have duly executed this Agreement,
including the Exhibits hereto, and incorporated herein by reference, as of the
date first above written above.
ALTIGEN INC. XXXXXX MICRO INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------ -------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxx
---------------------------- ------------------------------
Title: Vice President of Sales Title: Vice President - Purchasing
--------------------------- -----------------------------
EXHIBIT
A - END USER AGREEMENT
B - PRODUCT LIST AND DISCOUNT SCHEDULE
C - PURCHASING OBJECTIVES
D - SUPPORT AND MAINTENANCE
E - TERRITORIES
F - INGRAM VENDOR ROUTING GUIDE
G - PROPRIETARY INFORMATION NON-DISCLOSURE AGREEMENT
18
EXHIBIT A
ALTIGEN(R), INC. - END USER AGREEMENT
NOTICE - READ THIS BEFORE OPENING THIS PACKAGE, INSTALLING THE PC HARDWARE
OR USING THE SOFTWARE
OPENING THIS PACKAGE, INSTALLING THE PC HARDWARE OR USING THE SOFTWARE
INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS
AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO OPENING THIS PACKAGE OR USING
THE SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST RETURN THIS PACKAGE
WITHIN 5 DAYS OF OBTAINING THE PACKAGE, WITH YOUR RECEIPT, AND YOUR MONEY WILL
BE RETURNED.
* * * *
PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE PROGRAM, THE
PC HARDWARE OR DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT.
LICENSE. This software program (the "Program") and the documentation (the
-------
"Documentation") are licensed, not sold, to you. The term "Program" shall also
include any updates of the Program licensed to you by AltiGen. Subject to the
terms of this agreement, you have a non-exclusive and nontransferable right to
use the Program, Personal Computer Card (the "PC Hardware") and Documentation.
You agree to use your best efforts to prevent and protect the contents of the
Program, the PC Hardware and Documentation from unauthorized disclosure or use.
AltiGen and its licensors reserve all rights not expressly granted to you.
AltiGen's licensors are the intended third party beneficiaries of this agreement
and have the express right to rely upon and directly enforce the terms set forth
herein.
LIMITATIONS ON USE. You may not rent, lease, sell or otherwise transfer or
------------------
distribute copies of the Program, the PC Hardware or Documentation to others.
You may not modify or translate the Program, the PC Hardware or the
Documentation without the prior written consent of AltiGen. You may not reverse
assemble, reverse compile or otherwise attempt to create the source code from
the Program or the PC Hardware. You may not use AltiGen's name or refer to
AltiGen directly or indirectly in any papers, articles, advertisements, sales
presentations, news releases or releases to any third party without the prior
written approval of AltiGen for each such use. You may not release the results
of any performance or functional evaluation of any Program to any third party
without prior written approval of AltiGen for each such release.
BACKUP AND TRANSFER. You may make one copy of the Program for backup
-------------------
purposes if AltiGen's copyright notice is included. You may not sublicense,
assign, delegate, rent, lease, time-share or otherwise transfer this license or
any of the related rights or obligations for any reason. Any attempt to make any
such sublicense, assignment, delegation or other transfer by you shall be void.
You may physically transfer the Program from one computer to another provided
that you do not retain any copies of the Program, including any copies stored on
a computer.
TOLL FRAUD. Although this software provides passwords and blocking options
----------
for controlling telephone use, the software does not provide a security system
that would prevent unauthorized use. AltiGen does not warrant that the software
will prevent, or can prevent, unauthorized and/or unlawful use. AltiGen will
have no responsibility and will not be liable for any unauthorized or unlawful
use, including without limitation long distance charges, criminal or civil
liabilities, or damages.
COPYRIGHT. The Program, the PC Hardware and related Documentation are
---------
copyrighted by AltiGen and its licensors. You may make one copy of the
Documentation and print one copy of any on-line documentation or other materials
provided to you in electronic form. Any and all other copies of the Program and
-------------------------------------------
any copy of the Documentation made by you are in violation of this license.
--------------------------------------------------------------------------
19
OWNERSHIP. You agree that the Program and Documentation belong to
---------
AltiGen and its licensors. You agree that you neither own nor hereby acquire any
claim or right of ownership to the Program and Documentation or to any related
patents, copyrights, trademarks or other intellectual property. You own only the
magnetic or other physical media (including Personal Computer Card) on which the
Program and related Documentation are recorded or fixed. AltiGen and its
licensors retain all right, title and interest in and to the Documentation and
all copies and the Program recorded on the original media and all subsequent
copies of the Program at all times, regardless of the form or media in or on
which the original or other copies may subsequently exist. This license is not a
sale of the original or any subsequent copy. All content accessed through the
Program is the property of the applicable content owner and may be protected by
applicable copyright law. This license gives you no rights to such content.
TERM AND TERMINATION. This license is effective until terminated. You
--------------------
may terminate this license at any time by destroying the Program and
Documentation and the permitted backup copy. This license automatically
terminates if you fail to comply with its terms and conditions. You agree that,
upon such termination, you will either destroy (or permanently erase) all copies
of the Program and Documentation, or return the original Program and
Documentation to AltiGen, together with any other material (PC Hardware) you
have received from AltiGen in connection with the Program.
LIMITED WARRANTY. AltiGen warrants the media on which the Program is
----------------
furnished to be free from defects in materials and workmanship under normal use
for 30 days from the date that you obtain the Program. AltiGen warrants the PC
Hardware for a period of one year from the date of consumer purchase to be free
from defects in materials and workmanship. EXCEPT FOR THIS LIMITED WARRANTY,
ALTIGEN AND ITS LICENSORS PROVIDE THE PROGRAM, THE PC HARDWARE AND THE
DOCUMENTATION "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Some states do not allow the exclusion of implied warranties, so the
above exclusion may not apply to you. This warranty gives you specific legal
rights and you may also have other rights which vary from state to state.
LIMITATION OF REMEDIES. AltiGen and its licensors' entire liability and
----------------------
your exclusive remedy in connection with the Program, the PC Hardware and the
Documentation shall be that you are entitled to return the defective media
containing the Program together with the PC Hardware and Documentation to the
merchant. At the option of the merchant, you may receive replacement media
containing the Program, the PC Hardware and Documentation that conforms with the
limited warranty or a refund of the amount paid by you. IN NO EVENT WILL ALTIGEN
OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT
OF YOUR USE OR INABILITY TO USE THE PROGRAM INCLUDING, BY WAY OF ILLUSTRATION
AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES,
ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM, EVEN IF ALTIGEN, ITS
LICENSORS OR AN AUTHORIZED ALTIGEN DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
Some states do not allow the exclusion or limitation of incidental or
consequential damages so the above limitation or exclusion may not apply to you.
This license will be governed by the laws of the State of California as
applied to transactions taking place wholly within California between California
residents.
U.S. GOVERNMENT END USERS. The Program is a "commercial item," as that
-------------------------
term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial
computer software" and "commercial computer software documentation," as such
terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S.
Government End Users acquire the Program with only those rights set forth
herein.
20
Exhibit B
PRODUCT LIST
and
DISCOUNT SCHEDULE
Quantum Boards
Part Number Description Price
----------- ----------- -----
ALTI-CD0408UD CID Quantum Platform, 4 trunks & 8 extensions. Rev. D (Redated)
ALTI-CD0804UD CID Quantum Platform, 8 trunks & 4 extensions. Rev. D (Redated)
ALTI-CD0012UD CID Quantum Platform, 12 extensions. Rev. D (Redated)
ALTI-DID 0408UD DID Quantum Platform, 4 DID trunks & 8 extensions. Rev. D (Redated)
Demo
Part Number Description Price
----------- ----------- -----
ALTI-DMK4860 NFR CTI Demo Kit with AltiWare 2.1 Open Edition Software, AltiWare (Redated)
Console 2.1, Rev. D. CID Quantum board with 4 trunks & 8 extensions
and on-board power supply.
Software
Part Number Description Price
----------- ----------- -----
Alti-SS351E AltiWare 3.51A System Software (Redated)
Alti-OED210E AltiWare Open Edition 2.1 Software (Redated)
Alti-OAC210E AltiConsole 2.1 Operator Console Software (Redated)
Peripherals
Part Number Description Price
----------- ----------- -----
CBL-25M50-01 DB25 to 50-pin Telco cable, Male to Male (Redated)
CBL-MVIP6-01 MVIP cable with 6 connectors (Redated)
DOC-RFG01-04 4 User Pocket Reference Guides (Redated)
DOC-ICM01-01 Installation Configuration & Maintenance Manual (Redated)
MSC-PANEL-02 12 Port Connection Panel with 50-pin F Telco connector (Redated)
1
Exhibit C
Purchase Objectives
AltiGen operates on a fiscal calendar.
Q1 Q2
Oct., Nov., Dec. Jan., Feb., March
_______N/A_________________ _______N/A_________________
(Qty. of boards per quarter) (Qty. of boards per quarter)
Q3 Q4
April, May, June July, Aug, Sept.
_______N/A_________________ _______400_________________
(Qty. of boards per quarter) (Qty. of boards per quarter)
TOTAL FOR 1998:
_______400__________
1
Exhibit D
SUPPORT AND MAINTENANCE
AltiGen will provide the following maintenance services:
Telephone Support. Telephone support from (Redated).
Email support. Email support available at "xxxxxxx@XxxxXxx.xxx" or a
special address to be established for Distributor support. AltiGen will respond
to email within (Redated)
Training. AltiGen may provide in-depth Product training to Distributor
from time-to-time and Distributor will use its best efforts to have appropriate
support personnel attend such training sessions to the extent such training will
assist Distributor in better supporting the channel.
Website. AltiGen will provide product information and technical tips at
xxx.xxxxxxx.xxx.
---------------
1
Exhibit E
TERRITORIES
All Territories and possessions in:
. (Redated)
. (Redated)
2
Exhibit F
VENDOR ROUTING GUIDE
[LOGO APPEARS HERE]
XXXXXX
MICRO URGENT DOCUMENT: PLEASE READ IMMEDIATELY
----------------------------------------
TO: XXXXXX MICRO VENDORS
FROM: XXX XXXXXX - SR. DIRECTOR OF LOGISTICS & TRANSPORTATION
SUBJECT: VENDOR ROUTING GUIDE
This guide was prepared to provide you with a comprehensive freight policy and
to assist you in better understanding the transportation needs of Xxxxxx Micro.
This guide is for shipments originating in the U.S. and shipping to Xxxxxx Micro
Distribution Centers located in the U.S. and/or our Fremont, CA Consolidation
Center. The instructions in this guide supersede any previous routing
instructions written or oral. If an unauthorized carrier is used, Xxxxxx Micro
reserves the right to debit the vendor for costs incurred through noncompliance
with these instructions. There is a 60 day grace period associated with any
changes you must make to comply with this guide.
In this guide you will see information that applies to any Xxxxxx Micro
shipment, information that applies to shipments moving to our Consolidation
Center in Fremont, CA, information that applies to shipments moving to our
distribution centers, information that applies to packaging specification, and
information that applies to shipping document requirements.
Information that applies to any Xxxxxx Micro shipments:
. If you currently pay freight, we would urge you to consider using our
selected carriers. By using these carriers you will experience reduced
cycle times because of our electronic commerce arrangements with the
carriers. The carriers we have selected have some of the lowest claims
ratios in the industry. Finally, we believe these carriers are best
able to service Xxxxxx Micro freight based on their understanding of
our unique operating requirements.
. Freight Routing Instructions (when Xxxxxx Micro pays freight):
All ground shipments must be shipped "FREIGHT COLLECT"
Do not ship COD for freight or product. Shipments will be refused.
Do not insure or declare value on any shipment unless previously
authorized by Xxxxxx Micro Traffic (contact information on page
5).
All shipments must be in closed vehicles. Do not tender shipments
to any carrier utilizing flat bed or stake bed trucks.
The vendor will be responsible for all air freight shipments
unless otherwise permitted by Xxxxxx Micro Traffic.
. Shipments between 1 and 150 pounds are considered a small parcel
shipment. We request that our vendors keep small shipments to a
minimum. We understand that there is a need to ship small shipments as
a result of backorders and special orders. When it is necessary to ship
small orders and it is not possible to consolidate into an LTL
shipment, please use RPS Collect.
. Drop shipments
When Xxxxxx Micro is responsible for paying freight and you are
shipping directly to an Xxxxxx Micro customer. Send all shipments THIRD
PARTY XXXX TO XXXXXX MICRO.
. Hazardous Materials/Dangerous Goods
Shipments of goods falling under the definition of Title 49CFR as
hazardous materials will not be accepted by Xxxxxx Micro. Please notify
--------
Xxxxxx Micro Traffic if such material is ordered.
. International Shipments
Call (000) 000-0000 extension 2284 for International freight
routing assistance.
1
Shipments moving directly to Xxxxxx Micro's Consolidation Center - Fremont, CA:
. The purchase order numbers will begin with 52.
. When you have a shipment for the Consolidation Center call
(000) 000-0000 between 6am - 6pm PDT Monday - Friday.
. Please have the following information ready at the time of call:
1. Vendor name
2. Ship from address
3. Pieces, weight, and number of pallets
4. Contact name and phone number
5. Ready time of product and hours of operation of shipping dock
. Small package orders to the Consolidation Center should always be in
full case quantity. If you cannot ship product in full case quantity
please back order the full case shortage amount.
Shipments moving directly to Xxxxxx Micro Distribution Centers:
. The P.O. numbers will begin with 10 (Fullerton, CA), 17 (Miami, FL), 20
(Carrollton, TX), 26 (Fullerton or Santa Ana, CA), 30 (Memphis or
Millington, TN), 40 (Carol Stream, IL), 42 (Buffalo Grove, IL), 45
(Buffalo Grove, IL), 50 (Fremont, CA), 00 (Xxxxxxxxx, XX), xxx/xx 00
(Xxxxxxxxxx, XX).
. If the shipment is between 150 and 10,000 pounds:
Xxxxxxx Motor Lines is the primary LTL carrier and ABF is the secondary
LTL carrier. For intrastate shipments refer to the chart below. For
interstate shipments refer to routing matrix on page three.
. If the shipment is 10,000 pounds or greater or equivalent to a
full trailer load:
Call (000) 000-0000 or (000) 000-0000 and ask for dispatch.
. Intrastate Shipments:
Shipments weighing between 150 and 10,000 pounds in states where Xxxxxx
Micro distribution centers are located use the following carriers:
California WestEx
Florida & Georgia Southeastern Freight Lines
Tennessee & Texas Xxxx Motor Freight
Illinois K & R Express
Pennsylvania New Penn
2
Routine Matrix
--------------
If any of the carriers contained in this routing matrix is unacceptable or you
need routing assistance call Xxxxxx Micro Traffic Department before shipping
product.
SHIP TO DESTINATION
SHIP
FROM
ORIGIN
--------------------------------------------------------------------------------------------------------------------------
CA FL TX TN IL GA PA
--------------------------------------------------------------------------------------------------------------------------
XX Xxxxxxx ABF Xxxxxxx ABF Xxxxxxx ABF Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
AR Xxxxxxx Xxxxxxx ABF ABF Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
AZ WestEx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
CA WestEx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
CO Reddaway Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
CT Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx New Penn
--------------------------------------------------------------------------------------------------------------------------
XX Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
XX Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
FL Xxxxxxx Southeastern Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
GA Xxxxxxx Southeastern Xxxxxxx ABF Xxxxxxx Southeastern Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
IA ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
ID ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
IL Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx K&R Express Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
IN Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
KS ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
XX Xxxxxxx Xxxxxxx Xxxxxxx ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
XX Xxxxxxx Xxxxxxx ABF Xxxxxxx ABF Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
MA Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx New Penn
--------------------------------------------------------------------------------------------------------------------------
MD Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx New Penn
--------------------------------------------------------------------------------------------------------------------------
ME ABF ABF ABF ABF ABF ABF New Penn
--------------------------------------------------------------------------------------------------------------------------
MI Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
MN Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx K&R Express Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
MO Xxxxxxx Xxxxxxx Xxxxxxx ABF ABF Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
XX Xxxxxxx ABF ABF ABF Xxxxxxx ABF Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
MT ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
NC Xxxxxxx ABF Xxxxxxx ABF Xxxxxxx ABF ABF
--------------------------------------------------------------------------------------------------------------------------
ND ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
NE ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
NH Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
NJ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx New Penn
--------------------------------------------------------------------------------------------------------------------------
NM WestEx ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
NV WestEx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
NY Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF Xxxxxxx New Penn
--------------------------------------------------------------------------------------------------------------------------
OH Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
OK Xxxxxxx Xxxxxxx ABF Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
OR Reddaway Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
PA Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF Xxxxxxx New Penn
--------------------------------------------------------------------------------------------------------------------------
RI Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
SC Xxxxxxx ABF Xxxxxxx ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
SD ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
TN Xxxxxxx Xxxxxxx Xxxxxxx Saia Xxxxxxx ABF Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
TX Xxxxxxx Xxxxxxx Saia Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
UT Reddaway ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
VA Xxxxxxx Xxxxxxx Xxxxxxx Southeastern Xxxxxxx ABF ABF
--------------------------------------------------------------------------------------------------------------------------
VT ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
WA Reddaway Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
WV ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
WI Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx ABF Xxxxxxx ABF
--------------------------------------------------------------------------------------------------------------------------
WY ABF ABF ABF ABF ABF ABF ABF
--------------------------------------------------------------------------------------------------------------------------
3
ATTACHMENT B
TYPICAL INTERLOCKING CARTON PATTERNS FOR SOFTWARE MASTERPACK
AND HARDWARE SHIPMENTS
[CARTON PATTERNS APPEARS HERE]
ORIGINAL - NOT NEGOTIABLE ATTACHMENT D
BOL NBR. 123456 SAMPLE
DATE: 9-1-94
TERMS
CARRIER ABF FREIGHT SYSTEMS, INC.
XXX 0
XX XXXX 0-0-00 XX TIME
SHIPPER CONSIGNEE
ABCD CORP. XXXXXX MICRO INC.
000 Xxxxxxx Xxxx, #X 00000 Xxxxx Xxxx, #X
Xxxx, XX 00000 Xxxxxxx, XX 00000
XXXX TO OR REMIT TO ISSUING OFFICE OR AGENT
XXXXXX MICRO INC.
0000 Xxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
GENERAL COMMENTS
P.0. #50-833451
#50-036683
------------------------------------------------------------------------------------------------------------------------------------
PIECES skid H DESCRIPTION WEIGHT RATE CHARGES CLASS
------------------------------------------------------------------------------------------------------------------------------------
72 9 3.0 Computer Software 1700
109 5 4.1 Computer Software 2600
------------------------------------------------------------------------------------------------------------------------------------
REMIT C.O.D C.O.D FEE
TO
COD AMT: $ PREPAID [_] $
COLLECT [_]
ADDRESS
[ILLEGIBLE]
ATTACHMENT C
ABCD Corporation
000 Xxxxxxx Xxx. Packing Slip #123589
Xxxx, XX 00000 Sales Order #
Invoice #
Ship to: Xxxxxx Micro Inc. Xxxx To: Xxxxxx Micro Inc.
00000 Xxxxx Xx., #X 0000 Xxxxxx Xx.
Xxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000
PO# 50-12345 Xxxx of Lading #12334455
---------------------------------------------------------------------------------------------------------------------------
Qty. Ord Qty B.O. Qty Ship Description Case # Lbs Cost
Pack Cartons
---------------------------------------------------------------------------------------------------------------------------
24 0 24 123456 Laser 1 24 50
Printer
Mdl #PK1234
50 10 40 2 20 20
123459 Dot Matrix
Printer
60 0 60 2 30 75
Print Works
Software
Mdl #PK1325
---------------------------------------------------------------------------------------------------------------------------
Totals 134 10 124 5 74 145
---------------------------------------------------------------------------------------------------------------------------
CONTACT INFORMATION
-------------------
XXXXXX MICRO LTL CARRIERS SMALL PACKAGE
West Coast Traffic ABF RPS
0000 X Xx. Xxxxxx Xxxxx 0000 Xxx Xxxxxxxxx Xxxx (000) 000-0000 extension 8007
Xxxxx Xxx, XX 00000 Xxxx Xxxxx, XX 00000 they will answer Caliber Systems
(000) 000-0000 Customer Service - (000) 000-0000 Web Site: xxx.xxxxxxx.xxx
EXT: 2217, 4432, 5750, & 2284 Web Site: xxx.xxxx.xxx
East Coast Traffic K & R Express
0000 Xxxxxx Xxxxx 00 X 000 Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000-0000 Xxxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
EXT: 6752, 6764, 6761, & 0000
Xxx Xxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
(000) 000-0000
Xxxx Motor Freight
00000 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
(000) 000-0000
Southeastern Freight Lines
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
USF Reddaway
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx Motor Lines
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
(000) 000-0000 8am to 8pm EST
Web Site: xxx.xxxxxxx.xxx
WestEx
0000 Xxxxx 00/xx/ Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000 - Xxxxx Xxxxx
5
EXHIBIT G
---------
PROPRIETARY INFORMATION
NON-DISCLOSURE AGREEMENT
This Agreement is made this 16 day of June, 1998 by and between Xxxxxx
Micro Inc., a Delaware corporation with its principal place of business at 0000
Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 ("Ingram"), ALTIGEN INC., a
California corporation, with principal offices at 00000 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxx, XX 00000 ("AltiGen")
WHEREAS Ingram has compiled and organized certain information relating to
its sales which is proprietary and confidential, and such information includes,
but is not limited to the "Point of Sale (POS) Report" ("Proprietary
Information"); and
WHEREAS Ingram agrees to disclose Proprietary Information to AltiGen for
the limited purpose set out herein; and
WHEREAS AltiGen desires to inspect and use such Proprietary Information for
the purposes of calculating sales commissions and monitoring marketing programs
only;
NOW, THEREFORE, in consideration of the mutual promises set out herein, the
parties hereby agree as follows:
1. AltiGen agrees not to communicate, disclose, or otherwise make
available all or any part of the Proprietary Information to any third
party, including, but not limited to AltiGen's parent, subsidiaries, or
affiliated companies.
2. AltiGen agrees not to use, or permit others to use, the Proprietary
Information, other than for the purpose(s) stated above. AltiGen agrees to
make no more than five (5) copies of the Proprietary Information unless
otherwise agreed in writing between the parties; and AltiGen agrees to
limit distribution of and access to the Proprietary Information to those of
AltiGen's personnel who require access to Proprietary Information for the
foregoing purpose. AltiGen agrees not to solicit, or sell Product to any
customer or dealer listed in the Proprietary Information that requests to
purchase product from Xxxxxx Micro.
3. The term of this Agreement, unless terminated in accordance with
paragraph 7 shall be concurrent with the term of that mutual Distribution
Agreement between Xxxxxx Micro Inc. and AltiGen Inc. dated June 15, 1998,
incorporated by reference as if fully set forth herein.
4. AltiGen and Ingram mutually agree that all copies of the Proprietary
Information and all written descriptions, extractions, or summaries
thereof, whether made by AltiGen or Ingram, shall be the property of
Ingram, and shall, upon expiration of this Agreement or Xxxxxx'x request,
be immediately returned to Ingram.
5. AltiGen and Ingram mutually agree that Xxxxxx'x public disclosure of
the Proprietary Information, except pursuant to a confidential disclosure
agreement, to any party will release AltiGen from the obligation of
confidentiality with respect to that portion of the Proprietary Information
actually disclosed by Ingram.
6. AltiGen acknowledges the damage which Ingram may suffer in the event
of AltiGen's breach of obligations set forth herein. AltiGen agrees to and
shall indemnify Ingram from and compensate Ingram for any and all damage or
injury, including legal fees and costs incurred by Ingram because of
AltiGen's misuse of any Proprietary Information or incurred by Ingram in
enforcing its rights hereunder. This provision shall survive the expiration
or earlier termination of this Agreement for a period of one (1) year.
7. Upon termination of this Agreement by either party for any reason,
AltiGen shall return all Proprietary Information to Ingram within thirty
(30) days, irrespective of format. For purposes of enforcing this
provision, AltiGen's return obligation shall survive the termination of
this Agreement.
8. The rights, promises, duties, and obligations set out herein, and the
validity, interpretation, performance, and legal effect of the whole
Agreement shall be governed and determined by the laws of the State of
California. In the event that any provision is found invalid or
unenforceable pursuant to statutory or judicial decree, such provision
shall be construed only to the maximum extent permitted by law, and the
remainder of the Agreement shall be valid and enforceable in accordance
with its terms.
XXXXXX MICRO INC. ALTIGEN NAME
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------- ---------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxx
----------------- -------------------------
Title: VP Purchasing Title: Vice President of Sales
---------------- ------------------------
Date: 7/21/98 Date: 6/16/98
---------------- -------------------------
