Strategic Frame Agreement By and between China Tel Group, Inc. and Runcorn Technologies Ltd. Dated October 6, 2008
By
and between
China
Tel Group, Inc.
and
Runcorn
Technologies Ltd.
Dated
October 6, 2008
This
STRATEGIC FRAME AGREEMENT (the "Agreement") is entered into and is effective as
of the 6 day of October, 2008 (the "Effective Date") and is by and between China
Tel Group Inc., and its wholly owned subsidiary TrussNet USA Inc., a company
incorporated under the laws of Nevada, whose primary address is 0000 Xxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 ("China Tel Group") and Runcorn
Technologies Ltd., a company registered in the state of Israel, whose primary
address is 00 Xxxxx Xxxx Xxxxxx, Xxxxxx Xxxxxx ("Xxxxxxx") (each of China Tel
Group and Runcorn shall hereinafter be referred to as a "party" and together the
"parties").
RECITALS
WHEREAS
China Tel Group is in the business of designing, developing, operating, and
maintaining wireless communications facilities. China Tel Group's joint venture
partner CECT-Chinacomm is the major holder of 3.5 GHz spectrum licenses from the
Ministry of Tnformation Industry Technology of China (MIIT). China Tel Group is
designing, developing, operating, and maintaining IEEE g802.16d 01-DMA-2k flavor
networks in twenty nine (29) cities in China on 3.5 GHz spectrum for
CECT-Chinacomm; and
WHEREAS
Runcorn is in the business of developing superior technological standards and
products that target the emerging beyond 3G market, enabling the delivery of
enhanced communications services to cellular phones and other mobile devices.
Runcorn's nnique enhancement to existing OFDMA technology permits the
manufacture of an IEEE 802.16d OFDMA-2k
flavor base station that is upgradeable to an 802.16e Mobile WiMAX base station
solely through a software upgrade; and
WHEREAS
China Tel Group and Runcorn desire to set forth the terms and conditions
relating to the strategic collaboration between China Tel Group and Runcorn
pursuant to which Runcorn will design, manufacture and sell "Products," as
defined herein, to China Tel Group, and under which China Tel Group will
exclusively purchase such Products from Runcorn in a way that Runcorn shall be
the lead hardware vendor for China Tel Group's deployment of network world wide,
including, but not limited to, in twenty nine (29) cities (including but not
limited to the
main cities
Beijing, Shanghai , Shenzhen, Guangzhou and Nanjing) in The People's Republic of
China.
WHEREAS
Runcorn desires to invest an amount of USD 100,000,000 in China Tel Group as a
strategic investment in consideration for the receipt of 28.6% of the issued and
outstanding share capital of China Tel Group, on a fully diluted basis, subject
to the terms set forth herein below.
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NOW, THEREFORE, in
consideration of the covenants stated herein, and for other good and valuable
consideration, the receipt and sufficiency of which the parties hereby
acknowledge receipt of, the parties agree as follows:
1. Definitions.
1.1 "Affiliate" means any person
or entity that controls, is controlled by, or is under common control with,
any party, whether directly or indirectly. For this purpose, the term "controls"
(including its correlative meanings "controlled by" and "under common control
of') means the ownership of 50% or more of the voting interests in the subject
entity and/or the ability to control in fact the management policies, business
and affairs of the subject entity.
1.2 "Confidential Information"
means information disclosed by a party to the other party that is
designated at the time of disclosure as confidential (or like designation), is
disclosed in circumstances of confidence, or would be understood by the
receiving party, exercising reasonable business judgment, to be
confidential.
1.3 "Delivery Date" means the date
the Products are delivered to China Tel Group, as provided for
herein.
1.4 "Demo" means the three (3)
Base Stations site (each site, three (3) sectors) to be performed pursuant
to this Agreement in accordance with the Demo Plan to be attached as an addendum
to this Agreement within a period of thirty (30) days as of the Effective Date
by the mutual consent of both parties and shall be marked as Exhibit
A.
1.5 "Deployment Plan" means the
plan for the deployment of network world wide, including, but not limited
to, in twenty nine (29) cities (including but not limited to the main cities
Beijing, Shanghai, Shenzhen, Guangzhou and Nanjing) in The People's Republic of
China. The Deployment Plan shall be divided in
to three parts — for the initial two (2) cities, additional three (3) cities and
the remaining cities in the People's Republic of China.
1.6 "Ordered Products" or "Products" means, the
quantities of the Products that China Tel Group orders from Runcorn as
shall be specified in Exhibit
B to be attached as an addendum to this Agreement within a period of
thirty (30) days as of the Effective Date by the mutual consent of both parties
(including Base Stations, CPEs, System (such as NOC and billing) and excluding
the connection of the systems to the backbone, fiber optic ring, legacy etc.
over microwave) and any additional Runcorn's product that the parties mutually
agree in writing to add to this Agreement. Such purchase order (i) is subject to
the terms and conditions of this Agreement, and (ii) authorizes Runcorn to ship
a definite quantity of Products to China Tel Group on a "Delivery Date," as
defined herein, other than as otherwise set forth in this Agreement. All
Products delivered pursuant to this Agreement shall be delivered Ex-Works,
Runcom's facilities (Incoterms 2000).
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1.7 "SAT"
or "Site Acceptance Test" means the Site Acceptance Test as set forth
in Exhibit [C] or as may be updated by the mutual consent of the
parties.
1.8 "Initial
Launch" means the deployment by China Tel Group of Runcorn Products in a total
of five (5) cities according to the Initial. Deployment Plan to be attached as
an addendum to this Agreement within a period of thirty (30) days as of the
Effective Date by the mutual consent of both parties and shall be marked as
Exhibit Dl /
D2.
1.9 "Trial
Plan and Proposal" means the Trial's plan, which includes the cost of
the Trial and the principle assumptions that were the basis of such
proposal as shall be specified in Exhibit D.
2. Certain Interpretive
Matters.
Unless
the context requires otherwise, (1) all references to Sections, Articles,
Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
Appendices or Schedules of or to this Agreement, (2) each of the Schedules will
apply only to the corresponding Section or subsection of this Agreement, (3)
words in the singular include the plural and visa versa, (4) the term
"including" means "including without limitation," (5) the terms "herein,"
"hereof," "hereunder" and words of similar import shall mean references to this
Agreement as a whole and not to any individual Section or portion hereof. All
references to $ or dollar amounts will be to lawful currency of the United
States of America. All references to "day" or "days" will mean calendar days and
all references to "quarter(ly)," "month(ly)" or "year(ly)" will mean Fiscal
Quarter, Fiscal Month or Fiscal Year, respectively; and (6) all terms specified
herein for the purposes of finalizing the Exhibits, Appendices or Schedules of
this Agreement may be extended by the mutual consent of the
parties.
3. Demo.
At a
mutually agreed date, Runcom shall perform the Demo (according to the Demo Plan
set forth in Exhibit A to be attached to this Agreement) at a site designated by
China Tel Group (the "Site Demo"). The consideration payable to Runcorn by China
Tel Group for the performance of the Demo shall be specified in
Exhibit Al.
4. Initial
Launch.
4.1 At
a mutually agreed date, Runcorn shall commence the deployment (according to
the initial deployment plan set forth in Exhibit
DI to be attached as an addendum to this Agreement within a period of
thirty (30) days after the completion of the Demo but no later than three (3)
months as of the Effective Date at Beijing and Shanghai (the "Initial
Deployment"). The consideration payable to Runcorn by China Tel Group for the
performance of the Tnitial Deployment shall be specified in Exhibit F to be
attached as an addendum to this Agreement.
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4.2 After
completion of the Initial Deployment specified above, China Tel Group
and Runconi shall perform an additional deployment of additional three {3)
cities in accordance with the Scope of Work ("SOW") and Deployment Plan to be
attached as an addendum to this Agreement and marked as Exhibit
D2 (the "Second Phase of Deployment" and together with the Initial
Deployment, the "Initial Launch"). In consideration of the performance of the
Second Phase of Deployment, China Tel Group shall pay Runcorn an amount as shall
be specified in Exhibit F.
4.3 Both
parties acknowledges that the deployment of Runcorn's Products as per
this Agreement (including, but not limited to the Initial Deployment) is
subject to the receipt of any applicable certification(s), which both parties
and CECT-Chinacomm will use best efforts to obtain.
5. Purchase and Sale of
Products and Services.
5.1 Purchase and Sale.
Subject to the successful completion of the Trial, according to the SAT,
China Tel Group shall purchase from Runcorn the Ordered Products, according to
the schedule to be attached as an addendum to this Agreement within a period of
thirty (30) days as of the Effective Date by the mutual consent of both parties
and shall be marked as Exhibit E,
pursuant to the terms and conditions of this Agreement. The purchase
of the Ordered Products
is non-cancellable, other than as expressly permitted tinder this Agreement;
provided, however that China Tel Group will be entitled to reschedule the
Delivery Date of Ordered Products according to Section 9.4 below.
5.2 Exclusivity. China
Tel Group agrees and undertakes to exclusively purchase from Runcorn
WiMAX's Base Stations, CPEs and systems in connection with the deployment of
telecommunication network world wide, including, but not limited to, in twenty nine
(29) cities in The People's Republic of China with respect to which China Tel
Group was already contracted by CECT-Chinacomm.
5.3 Product(s)
Specification. The Products to be supplied by Runcorn to China
Tel Group pursuant to this Agreement shall be according to the
specifications applicable thereto.
5.4 Process and
Information. China Tel Group agrees to provide to RI (i)
such process technology or information as is required to be disclosed in
the performance of this Agreement; (ii) statutory applicable requirements; and
(iii) any additional information reasonably required by Runcorn.
5.5 Services. Following
the execution of this Agreement, the parties shall in good faith negotiate
a Service Level Agreement ("SLA"). It is the parties' intention to enter into
such a SLA within a period of sixty (60) days as of the execution of this
Agreement.
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6. Purchase and Sale of
Shares.
6.1 Runcorn
shall invest (directly and/or through its assignee) a total amount of
USD 100,000,000 (the "Investment Amount") in China
Tel Group as a strategic investment in consideration of the receipt of 28.6% of
the issued and outstanding share capital of China Tel Group, on a fully diluted
basis (as at the date of the closing of said investment), according to terms to
be mutually agreed upon between the parties under a Stock Purchase Agreement
(the "SPA"). The SPA will contain customary representations and warranties for a
transaction of this type. The Investment Amount will be paid to China Tel Group
by Runcorn in two equal payments; the closing of fifty percent (50%) of the
Investment Amount (i.e., USD 50,000,000) is anticipated to occur within a period
of ninety (90) days as of the Effective Date and the closing of the remaining
fifty percent (50%) of the Investment Amount is anticipated to occur within a
period of six (6) months after the first closing. It is hereby agreed that
Runcorn shall have the option (at its discretion) to invest
up to fifty percent (50%) of each of the payments of the Investment Amount in
form of convertible debentures in terms to be specified in the SPA.
6.2 Both
parties shall act to obtain any and all approvals required by it for
the execution, delivery and performance of the SPA and any actions
contemplated thereunder within a period ninety (90) days as of the effective
date.
6.3 Runcorn agrees and acknowledges
that China Tel Group may be restricted from executing, delivering and/or
performing tbe SPA referred to in this Section 6, and therefore, China Tel Group
is entitled to terminate negotiation of the SPA, by written notice to Runcorn.
In such an event R1111C0111 will not be entitled to any rights and/or remedies
against China Tel Group, its stockholders, directors and/or officers in
connection with the -termination
of this Section 6. For the avoidance of doubt, termination of this Section 6 by
China Tel Group shall not in any- way be interpreted as derogating from any of
either China Tel Group's or Runcom's obligations under this Agreement
(including, but not limited to, pursuant to Section 5.2 above).
6.4 Sole Remedy. In case
Runcorn fails to execute, deliver and/or perform the SPA (including, but
not limited to, the purchase of securities contemplated thereunder), from any
reason whatsoever, as sole remedy, China Tel. Group shall be entitled to
terminate its exclusivity undertaking under Section 5.2 above, provided, however
that Runcorn shall remain China Tel Group's preferred WiMAX vendor and be
entitled to a right of first refusal with respect to any purchase by and/or on
behalf of China Tel Group of WiMAX's Base Stations, CPEs and systems in connection
with the deployment of telecommunication network world wide.
Other
than termination of China Tel Group's exclusivity undertaking under Section 5.2
above, China Tel Group and/or anyone on its behalf shall not have any claims
and/or demands against Runcorn, its stockholders, directors and/or officers in
connection with Runcorn's failure to execute, deliver and/or perform the SPA and
its obligations under this Section 6, regardless of the reason of Runcorn' s
failure.
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7. Performance
Reviews
7.1 Planning.
(a) China
Tel Group will quarterly provide Runcorn, with a written Products deployment
plan for each calendar quarter or as may be otherwise agreed between the
parties. In addition, Runcorn will be entitled to reasonably request China Tel
Group for an updated deployment plan from time to time. This demand will include
desired finished products breakout by products, systems and services ("Deployment
Plan").
(b) Based
on the Deployment Plan, Runcorn shall develop a proposed Product loading plan
for each period ("Proposed
Loading Plan"). Runcom shall provide China Tel Group with the Proposed
Loading Plan at reasonable promptness following the preparation of each Proposed
Loading Plan.
7.2 Performance Reviews and
Reports.
(a) China
Tel Group and Runcorn shall meet each quarter to discuss the performance of this
Agreement and the current applicable and future deliveries to be provided to
China Tel Group by Runcorn.
(b) In
addition, during the initial six (6) months term of this Agreement, the parties
shall conduct a
weekly / monthly conference call, as required, for the purpose of discussion
concerning all issues arising at the performance of this AgreeMent.
8. Products
Pricing.
8.1 Product
prices shall be as set forth in to be attached as an addendum to
this Agreement within a period of thirty (30) days as of the Effective Date
by the mutual consent of both parties and shall be marked as Exhibit
F and will include all applicable direct, indirect and incidental
manufacturing charges relating to the manufacturing and sale of Products to
China Tel Group, including without limitation packing and packaging fees, but
prices do not include applicable sales taxes or transportation charges.
Applicable sales taxes, if any, will be paid by China Tel Group.
8.2 Favorable Terms.
Without derogating from Section 8.1 above, on an a quarterly basis, the
prices of the Products purchased by China Tel Group during the applicable
calendar quarter, will be the same as or lower than Runcorn's most favorable
customer price paid to Runcorn during the applicable calendar quarter, for the
same products, under similar terms and conditions. If the prices are not the
same as or lower than Runcom's most favorable customer price during such
calendar quarter, Runcorn will reduce the prices to meet such most
favorable prices for all Products to be delivered to China Tel Group after
the effective date of the price reduction.
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8.3 Unless
otherwise set forth in a Purchase Order accepted by Runcorn in writing
or otherwise agreed to in writing by Runcom's General Manager, all prices
and shipments of Products will be made available to China Tel Group Ex-Works
(Incoterms 2000) at Runcorn's designated facilities.
9.
Delivery Date
Schedules.
9.1 China
Tel Group shall purchase Products from Runcom in accordance with
the Exhibit E.
9.2 Delivery
Confirmation. China Tel Group shall provide Runcorn with
written confirmation of a Delivery Date at least sixty (60) days prior to
each calendar month for Products to be shipped within that month. Each written
confirmation shall: (i) specifically reference this Agreement and (ii) state the
quantity of Products, exact desired Delivery Date, and location of
shipment.
9.3 Confirmation. Unless
otherwise agreed in writing by the parties, Runcorn shall confirm in
writing within fourteen (14) days of the receipt of China Tel Group's
confirmation the acceptance of such confirmation.
9.4 Rescheduling Delivery
Date. At no additional charge, subject to China Tel Group's written
notice, China Tel Group may reschedule each Delivery Date twice up to a period
of thirty (30) days (for each rescheduling) from the previously scheduled
Delivery Date.
10. Packing and
Shipment.
10.1 All
Products shall be packaged and prepared for shipment in a manner that follows
good commercial practice and is acceptable to common carriers for
shipment.
10.2 Each
shipment shall be accompanied by a packing slip on the outside of the box that
will include China Tel Group's part numbers, Runcom's part number and the
quantity shipped. China Tel Group shall specify the method of shipment, by a
written notice, within a reasonable time prior to the shipment of the applicable
Products; otherwise, Runcorn shall use its discretion in selecting a method of
shipment, and if reasonably possible, such method consistent with past practices
of China Tel Group.
11. Title and
Delivery.
11.1 Title
and risk of loss for a Product shall pass from Runcorn to China Tel. Group at
such time as the Products have been delivered to China Tel Group's designated
point of delivery.
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11.2 The
Delivery Date shall be pursuant to the schedule to be specified in Exhibit E,
unless otherwise agreed between the parties according to the terms of this
Agreement and subject to China Tel Group's right to reschedule the Delivery
Dates as per Section 9.4 above.
12. Invoicing and
Payment.
12.1 Payments.
(a) Within
a period of thirty (30) days as of the issuance of a purchase order for the
purchase of Products, China Tel Group shall pay Runcorn an advance payment in an
amount equal to thirty percent (30%) of the value of the Products purchased
under such purchase order; and
(b) Upon
the delivery of the applicable products, China Tel Group shall pay Runcorn an
additional payment in an amount equal to thirty percent (30%) of the value of
the Products delivered to China Tel Group in such Delivery Date.
(c) Additional
thirty percent (30%) of the value of the purchase order shall be paid upon the
installation of the applicable Products.
(d) The
remaining ten percent (10%) of the value of the Products will be paid to Runcorn
by China Tel
Group upon the optimization and acceptance of such Products. The optimization
and acceptance process as per this sub-section (d) will be completed by no later
than three (3)
months as of the Delivery Date.
12.2 Any
and all payments to Runcorn pursuant to this Agreement shall be paid in full,
non-refundable and without deductions for any sales, use, excise, value added,
or other similar taxes or
any other governmental fees or charges (collectively "Taxes"). Each party shall
bear any and all Taxes due by such party under its applicable law. Each party
agrees to provide reasonable assistance without charge in any proceeding for the
refund or abatement of any such Taxes the other party is required to
pay.
13. Termination for
Cause.
Excluding
non-canceled purchase of Products, either party may terminate this Agreement if
the other party breaches any material term or condition of this Agreement and
fails to remedy the breach within sixty (60) days or a mutually agreed upon date
or time frame after receipt of written notice detailing any such
breach.
14. Representations and
Warranties.
14.1 Runcorn
warrants that for a period of twelve (12) months from the date that the Product
is delivered to China Tel Group (the "Warranty Period") all Products delivered
under this Agreement: 1) shall be in compliance with any Product
specifications or documentation provided by Runcorn; and 2) that all such
Products shall be free from defects in materials and workmanship.
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14.2 If
during the Warranty Period China Tel Group identifies a warranty problem, China
Tel Group shall promptly notify Runcorn and Runcorn shall provide China Tel Group with
a Return Material Authorization ("RMA") within ten (10) business days thereof.
Within thirty (30) business days after receipt of any returned Products, Runcorn
shall, at Runcom's option and as China Tel Group sole remedy, either repair or
replace such Products.
14.3 Runcorn
shall not be responsible for breaches of the warranty provided for in this
Section 14 to the extent that the defective Products were subjected to misuse,
neglect, improper installation, have been subject to abnormal conditions
(mechanical, electrical or thermal) during storage installation or use, used in
a non-standard environment, unusual physical or electrical stress by a party
other than Runcorn.
14.4 China
Tel Group agrees and undertakes not to copy, reverse engineer, disassemble or
decompile any of the Products and/or other deliverable provided to it by
R1.111C0111 and/or to use such Products for any purpose other than the purpose
contemplated hereunder:-
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5 China Tel Group
represents and warrants that it has the right to enter into this Agreement and
that its performance of this Agreement will not violate the terms of any
contract, obligation, law, regulation or ordinance to which it is subject
to.
14.6 Runcom's Logo. All
products purchased from Runcorn pursuant to this Agreement shall include Runcorn
"Run's On Runcorn" logo on such products in a location and of a size reasonably
requested by Runcorn.
14.7 THE
WARRANTY BY RUNCOM SET FORTH HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY
DISCLAIMED.
15. Limitation of
Liability.
EXCEPT
WITH RESPECT TO THE BREACH OF CONFIDENTIALITY (SECTION 17 CONFIDENTIALITY),
INTELLECTUAL PROPERTY RIGHTS (SECTION 16 CONFIDENTIALITY) OR FAILURE TO PAY FOR
PURCHASED PRODUCTS: 1) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SORT
OF DAMAGES, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR FOR LOSS OF PROFITS OR FOR INFRINGEMENT OF THIRD PARTIES'
INTELLECTUAL PROPERTY RIGHTS OR REVENUE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR TI-IE BREACH HEREOF, WHETHER OR NOT THE PARTY WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS
SECTION SHALL APPLY TO ALL CLAIMS OF EVERY NATURE, KIND AND DESCRIPTION WHETHER
ARISING PROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT,
OR OTHERWISE.
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16. Intellectual
Property.
16.1 All
intellectual property of any kind and type presently owned by Runcorn shall
remain the sole property of Runcorn. Without derogating from the generality of
the above, the above shall apply to all local and foreign copyrights, including
United States, Israel and international copyrights, trade secret rights,
technology, software source codes, and patent rights. No transfer of
intellectual property rights or license is meant to be effected or granted by
this Agreement.
16.2 Each
party and its licensors, shall own and shall retain all rights, title and
interest in and to: (a) Any of its intellectual property rights including any
development of such party contemplated hereunder (including all copies,
modifications, and derivative works thereof, by whomever produced); (b) All of
its service marks, trademarks, trade names or any other designations associated
with each party's technology and products; and, (c) All copyrights, patent
rights, trade secret rights, and other proprietary rights relating to each
party's technology and products, whether registered or not. Nothing contained in
this Agreement shall be construed as granting to any party, any rights, by
license or otherwise, in or to the other parties' confidential information,
technologies or related intellectual property rights, other than the right to
use the information disclosed or provided by the other parties hereunder only
for the purpose contemplated by this Agreement
16.3 Without
derogating from the aforesaid, any intellectual property (of any sort or kind)
arising out of work and/or services performed by and/or on behalf Runcorn in
connection with this Agreement, to the extent performed, shall be solely owned
by Runcorn.
17. Confidentiality.
17.1 Each
party will use reasonable care in holding the other's Confidential Information
in confidence and not disclose it to anyone except the party's employees, who
have a need to know for purposes of carrying out or accounting for this
Agreement and have agreed in writing in advance to be bound by confidentiality
terms substantially similar to those in this Agreement.
17.2 Exceptions.
Confidential Information is not protected if a recipient can demonstrate through
written documentation that (a) it was already known; (b) it becomes known or
generally available to the public (other than by act of the recipient) after its
disclosure; (c) it is disclosed or made available in writing to the recipient by
a third party having a bona fide right to do so and without similar
confidentiality obligations; (d) it is independently developed by recipient, as
demonstrated by its business records; or (e) it is required to be disclosed by
subpoena or other process of law. The recipient will notify the disclosing party
promptly of a subpoena or other process of law requiring disclosure and
reasonably cooperate with such party in order to try and avoid and/or minimize
the disclosure of Confidential Information.
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17.3 Return of
Tnforrnation. Upon termination of this Agreement, each party shall return
to the other party all property that is owned by the other party, or destroy and
certify destruction thereof, including all Confidential Tnformation of the other
party.
18. General.
18.1 Assignment. Neither
party shall
have the right to assign this Agreement in whole or in part or delegate
obligations without the express written consent of the other party (other than
Section 6 above), said consent not to be unreasonably withheld or delayed.
Notwithstanding the aforesaid, either party is entitled to assign its and/or
obligations in connection with the merger and/or acquisition of such party. Any
attempted prohibited assignment or delegation shall be null and
void.
18.2 Notices. All notices
and communications hereunder shall be sent to the parties at the address or
facsimile numbers, set forth in this Section below (a) by first class or
certified mail, postage prepaid, (b) by facsimile with confirmation of
transmission, (c) delivered personally, or (d) sent by commercial courier with
written verification of delivery. Any such notice shall be deemed received by a
party forty-eight hours after delivery by a party to the other party via the
provisions (a) through (d) of this Section 18.2. Either party may change the
designated individuals) and/or their address or facsimile number by written
notice to the other party. Notwithstanding the aforesaid, any notice personally
served to the other party will be deemed received by such party upon its actual
receipt.
If to
China Tel Group
Mr.
Xxxxxx Xxxxxxx, CEO
0000
Xxxxxx Xxxxxx Xxxxx Xxxxx 000
Xxxxxx,
XX 00000 XXX
If to
Runcorn
Xx. Xxxxx
Xxxxxxxx, EVP
Runcorn
Technologies Ltd.
00 Xxxxx
Xxxx Xxxxxx, Xxxxxx. Xxxxxx
00000,
Xxxxxx
With a
copy to Legal Department
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Either
party may change its address for notices upon giving seven (7) days' written
notice of such change to the other party in the manner provided
above.
18.3 Force Majeure.
Neither party shall be liable to the other for any alleged loss or damages
resulting from failure to perform due to acts of God, natural disasters, acts of
civil or military authority, government priorities, fire, floods, earthquakes,
quarantine, energy crises, war or riots. Each party shall promptly notify the
other party of such event.
18.4 Governing Law. This
Agreement shall be construed in accordance with and all disputes
hereunder shall be governed by the laws of the state of the State of Israel,
without reference to its conflicts of law provisions. The courts of the Israel
shall have sole jurisdiction and venue over all controversies in connection
herewith. The parties exclude in its entirety the application to this Agreement
of the United Nations Convention on Contracts for the International Sale of
Goods.
18.5 Survival of
Obligations. Any obligations and duties that by their nature extend
beyond the expiration or termination of this Agreement shall survive any
expiration -or termination of this Agreement.
18.6 Entire Agreement,
Amendments. This Agreement, and any exhibits hereto constitute the entire
Agreement between and final understanding of the parties with respect to the
subject matter of this Agreement and supersedes and terminates any and all prior
or contemporaneous negotiations, representations, understandings, discussions,
offers or agreements between the parties, whether written .or verbal, express or
implied, bilateral or ilateral, relating in any way to the subject matter
of this Agreement. This Agreement is intended by the parties to be a complete
and wholly integrated expression of their understanding and agreement relating
to the subject matter hereof, and this Agreement may not be altered, amended,
modified or otherwise changed in any way except by a written instrument which
specifically identifies the intended alteration, amendment, modification or
other change and clearly expresses the intention to so change this Agreement, is
signed by a duly authorized representative of China Tel Group and Runcorn. This
Agreement is executed in English and no translation will have any effect on the
interpretation thereof.
18.7 Waiver. No waiver of
any default hereunder or any terms or conditions of this Agreement shall be deemed to be
a waiver of any other or subsequent default or of any other term or condition,
but shall apply solely to the instance to which such waiver is
directed.
18.8 Severability. If any
provision of this Agreement is held by a court of competent jurisdiction to be
contrary to law, the remaining provisions of this Agreement will remain in
full force and effect and shall be interpreted, to the extent possible, to
achieve its purposes without the invalid, illegal or unenforceable
provision.
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18.9 List of Exhibits. The
following appendices shall be finalized and added as an addendum to this
Agreement by the mutual consent of the parties according to the schedule set
forth herein.
Exhibit A
— Demo Plan
Exhibit B
— List of Products and Specifications Exhibit C — Site Acceptance Tests ("SAT")
Exhibit D —Trial Plan and Proposal
Exhibit E
— Schedule and Delivery Dates
Exhibit
F — Pricing
IN
WITNESS WHEREOF, China Tel Group's and Runcorn's duly authorized representative
have executed this Agreement as of the Effective Date.
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"China
Tel Group"
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"Runcom"
|
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CHINA
TEL GROUP
|
RUNCOM
TECHNOLOGIES LTD
|
|
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By:
/s/ signature
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By:
/s/ signature
|
|
|
Printed
Name: Xxxxxxx
|
Printed
Name
|
|
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Title:
CEO
|
Title:
CEO
|
|
|
/s/
signature
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/s/
signature
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|
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President
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EVP
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14
