EXHIBIT 10.10
SUPPLY AGREEMENT
THIS AGREEMENT is made the 17th day of July, 2002
BETWEEN the person, persons or company more particularly described in Part I
of the Schedule hereto (hereinafter called "the Supplier") of the first part
and the person, persons or company more particularly described in Part II of
the Schedule hereto (hereinafter called "the Purchaser") of the second part.
WHEREAS :
(A) The Purchaser desires to purchase the Products from the Supplier.
(B) The Supplier desires to supply the Products to the Purchaser.
(C) The Products are specially manufactured by the Supplier for the
Purchaser's exclusive requirements.
WHEREAS IT IS HEREBY AGREED as follows :
1. Definitions
In this Agreement the following words and expressions shall have the
following meaning unless the context clearly requires otherwise:
"Hong Kong" means the Hong Kong Special Administrative Region.
"Intellectual Property" means any patent, copyright, registered design or
unregistered design right and any application for any of the foregoing, any
rights in respect of Confidential Information and any other intellectual
property right. "month" means calendar month
"Products" means goods purchased by the Purchaser from the Supplier in
accordance with this Agreement and more particularly set out in Part III of
the Schedule hereto or such other goods as agreed by the parties from time
to time;
"Purchase Order" means the individual purchase order for the Products
separately agreed between the parties hereto pursuant to this Agreement.
"Specification" means the specification for the Products as specified by the
Supplier from time to time.
2. Agreement to supply
The Supplier hereby agrees to supply the Products to the Purchaser and the
Purchaser agrees to purchase the Products supplied by the Supplier subject
to the terms and conditions of this Agreement.
3. Ordering of the Products; Payment Terms
(1) The Purchaser will from time to time provide the Supplier with a
written Purchase Order specifying the quantity, quality, specifications,
description, price, time and place of delivery and any other relevant
information of the Products to be supplied by the Supplier, subject to the
terms of this Agreement.
(2) The Supplier shall accept or reject all Purchase Orders placed
hereunder by notice to the Purchaser within 30 days of the time of the
receipt of the Purchase Order; provided, however, that in the event the
Supplier does not affirmatively reject such Purchase Order within 30 days of
the time of the receipt of the Purchase Order, the Supplier shall be deemed
to have accepted such Purchase Order.
(3) The Purchaser estimates that it will place orders for not less than
300,000 units of the Products within the first 3 years from execution of
this Agreement.
(4) Unless otherwise provided in an accepted Purchase Order, Purchaser will
make all payments owed to Supplier within thirty (30) days of receipt of
invoices (net 30 terms), except for those items required to be paid in
advance of manufacturing or shipment.
4. Delivery, acceptance and cancellation
(1) After written acceptance by Purchaser of the alpha version of the
Product and upon Supplier's acceptance of a qualified purchase order
submitted by Purchaser, Supplier will produce the Product developed pursuant
to this Agreement subject to the terms and price set out in the accepted
purchase order.
(2) The Purchaser shall be deemed to have accepted the Products after
satisfactory inspection of the products delivered to the Purchaser or within
10 days after delivery to Purchaser, whichever occurs first.
(3) The Supplier shall use commercially reasonable efforts to make timely
delivery of the Products in accordance with mutually agreed upon delivery
dates. In addition the Supplier shall notify the Purchaser in writing of any
possible delay in the agreed to delivery of the Products as soon as possible
prior to the scheduled delivery date.
(4) Notwithstanding anything to the contrary herein, the Supplier reserves
the right to adopt an equitable plan of allocation and adjust delivery
schedules accordingly in the event of shortages or other events not within
the control of the Supplier.
(5) If Purchaser cancels an accepted purchase order within 15 days,
inclusive, from the acceptance of the purchase order, the Purchaser shall
not be responsible for any amount or costs incurred or committed by Supplier
for the terminated purchase order.
(5) If Purchaser cancels an accepted purchase order after 15 days from the
acceptance of the purchase order and sixty (60) days or less before the
scheduled Product ship date, Purchaser shall be responsible for 100% of the
unit price for all accepted purchase orders.
(6) If Purchaser cancels an accepted purchase order after 15 days from the
acceptance of the purchase order and more than sixty (60) days before the
scheduled Product ship date, Purchaser shall be responsible for an amount
equal to costs incurred or committed by Supplier for the terminated Purchase
Order or portion thereof that cannot be canceled or diverted to another
sale. Said charges shall not exceed 100% of the order value for the
canceled units.
5. Warranties and liability
(1) The Supplier warrants that the Products will correspond in all material
respects with the Specification at the time of delivery and will be free
from material defects in material and workmanship for a period of 1 year
from the date of the initial use.
(2) The Purchaser warrants as follows:-
(a) The Purchaser is the legal and beneficial owner of the
Intellectual Property;
(b) The manufacturing of the goods is not in contravention of any law
or regulations governing the same;
(c) The manufacturing of the goods does not infringe any copyright,
patent, design, trademark, trade secret or other proprietary
rights or rights of publicity or privacy or any other form of
property or proprietary rights, whether intellectual or otherwise;
(d) The information supplied by the Purchaser is correct and accurate
in all material respects.
(3) In no event will either party be liable for any punitive, incidental or
consequential damages in any action arising from or related to this
Agreement. In no event will either party's liability for monetary damages
under this Agreement exceed the amount paid by Purchaser to Supplier in the
one-year period before the claim arose.
6. Title and risk
(1) Title shall pass on acceptance of the Products by the Purchaser.
(2) Risk shall pass on acceptance of the Products by the Purchaser.
7. Duration and termination
(1) This Agreement shall come into force on the date of execution and shall
continue from year to year.
(2) Notwithstanding the foregoing, either party may by giving to the other
3 months' written notice to terminate this Agreement.
8. Confidentiality
Any documents or written materials delivered by the Supplier to the
Purchaser pursuant to this Agreement shall be treated as confidential
information, irrespective of any indication thereof. Such documents or
materials shall remain the sole property of the Supplier and the Purchaser
shall return or dispose of the same upon the request of the Supplier.
9. Notice
(1) A notice, approval, consent or other communication in connection with
this Agreement must be in writing and must be left at the address of the
addressee, or sent by prepaid ordinary post to the address of the addressee
or sent by facsimile to the facsimile number of the addressee which is
specified in this Clause or if the addressee notifies another address or
facsimile number then to that address or facsimile number.
(2) A notice, approval, consent or other communication takes effect from
the time it is received unless alter time is specified in it.
(3) A letter or facsimile is taken to be received in the case of a posted
letter, on the seventh day after posting and in the case of facsimile, on
production of a transmission report by the machine from which the facsimile
was sent which indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient.
10. Binding effect
This Agreement shall be binding on and shall be to the benefit of each
party's successors and assigns and personal representatives (as the case may
be).
11. Time of the essence
Time shall be of the essence as regard to any date or period mentioned in
this Agreement and any other date or period substituted for the same by
written agreement of the parties hereto.
12. Mutual assistance
Notwithstanding completion of this Agreement, each of the parties hereto
shall sign or execute any document or deed or to do any act or things as may
reasonably requested by any party hereto to give full effect to the terms of
this Agreement.
13. Variation
Any variation of this Agreement must be in writing and signed by the parties
hereto.
14. Condonation not waiver
No condonation or forbearance by any party of any breach by the other party
of any provision hereto shall be deemed to be a waiver of any breach of that
or any other provision hereof and any forbearance or delay by any party in
exercising any of its rights hereunder shall not constitute a waiver
whatsoever.
15. Laws and regulations
References to any Ordinance, regulation or other statutory provision in this
Agreement include a reference to such Ordinance, regulation or other
statutory provision as modified, codified or re-enacted.
16. Jurisdiction
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto shall submit to the non-exclusive
jurisdiction of the courts of Hong Kong.
17. Gender and numbers
It is hereby declared that (if the context permits and requires) the
singular number shall include the plural and the masculine gender shall
include the feminine and the neuter.
18. Recitals and Schedules
The recitals and schedules hereto have the same force and effect as if
expressly set out in the body of this Agreement and any reference to this
Agreement shall include the recitals and the schedules.
19. Headings
Headings used in this Agreement are for ease of reference only and do not
constitute part of this Agreement.
20. Force Majeure
(1) If either party is affected by Force Majeure it shall forthwith notify
the other party of the nature and extent thereof.
(2) Neither party shall be deemed to be in breach of this Agreement, or
otherwise be liable to the other, by reason of any delay in performance, or
non-performance, of any of its obligations hereunder to the extent that such
delay or non-performance is due to any Force Majeure of which it has
notified the other party; and the time for performance of that obligation
shall be extended accordingly.
(3) If the Force Majeure in question prevails for a continuous period in
excess of six months, the parties shall enter into bona fide discussions
with a view to alleviating its effects, or to agreeing upon such alternative
arrangements as may be fair and reasonable.
AS WITNESS the parties hereto have duly executed this Agreement the day
and year first above written.
THE SCHEDULE ABOVE REFERRED TO
PART I
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THE SUPPLIER
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CHINA ACTION MANAGEMENT LIMITED whose registered office is situate at 1603
Xxxx Xxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
PART II
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THE PURCHASER
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INFORMATION TECHNOLOGY COMPANY LIMITED whose registered office is situate at
Xxxx 0000-00, Xxxx Xxxxxxxx, 476 Castle Peak Road, Xxxxxx Sha Wan, Kowloon,
Hong Kong.
PART III
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THE PRODUCTS
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A proprietary set top box to distribute financial and other information
through the FM radio broadcasting network whose functions include retrieval
of transactions, data base management, redistribution of data, and
conversion of data from digital to radio broadcast format. The set top box
is called "InfoPort" which may consist of more than one version and may be
continually developed and improved by the Purchaser or its agents nominees
or contractors from time to time
SIGNED by ) /s/ Xxxxxxx X. Xxxxxx, CEO
} China Action Management Limited
for and on behalf of the Supplier )
in the presence of :- )
SIGNED by ) /s/ Xxxx Xxxx, Director
} Information Technology Company Limited
for and on behalf of the Purchaser )
in the presence of :- )
