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