EXHIBIT 10.12
DISTRIBUTOR AGREEMENT
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[GRAPHIC OMITTED]
DISTRIBUTOR AGREEMENT
THIS TITANIUM TECHNOLOGY DISTRIBUTOR AGREEMENT ("Agreement"), is entered into as
of the EFFECTIVE DATE set forth below by and between Titanium Technology
Limited, a Hong Kong Limited Company ("TITANIUM"), having its principal place of
business 00/X., Xxxxxxx Xxxxxxxx, 000 Xxxxxxxxx Xxxx Xxxx, Xxxx Xxxx SAR and the
DISTRIBUTOR identified below.
This Agreement consists of the following Term Sheet, the Standard Terms and
Conditions and the Exhibits attached hereto.
TERM SHEET
1. EFFECTIVE DATE: FEB 1, 2005
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2. DISTRIBUTOR: SMART WIRELESS CORPORATION
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Street Address:
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Company URL: HTTP://
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Telephone: Facsimile:
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3. CONTACT PERSON: MR. XXXXXXXX XXXXXXX
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Title:
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Telephone:
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E-mail address:
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4. START DATE OF
AGREEMENT: FEB 1, 2005
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5. END DATE OF
AGREEMENT: JAN 31, 2006
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6. TERRITORY: JAPAN
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7. INITIAL ORDER US$11,300 (ANNUAL MAINTENANCE TIFACE SDK + IR XXXXX SDK)
VALUE:
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8. MINIMUM ANNUAL US$200,000
COMMITMENT:
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9. PRODUCT SEE EXHIBIT A
SCHEDULE AND
DISCOUNT:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TITANIUM TECHNOLOGY LIMITED DISTRIBUTOR
By: /s/ XXXXX XX By: /s/ XXXXXXXX XXXXXXX
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Name: XXXXX XX Name: XXXXXXXX XXXXXXX
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Title: EXECUTIVE DIRECTOR Title: PRESIDENT & CEO
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Date: 2005 MARCH 7 Date: 2005 7 MARCH
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WITNESS WITNESS
By: /s/ XXXXXXX XXXX By: /s/ XXXXXXX XXXX
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Name: XXXXXXX XXXX Name: XXXXXXX XXXX
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Date: 2005 MARCH 7 Date: 2005 MARCH 7
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STANDARD TERMS AND CONDITIONS
1. DEFINITIONS
Capitalized terms used and not otherwise defined in this Agreement or the
Schedules hereto shall have the meanings shown below:
1.1 "Intellectual Property" means all of the following owned by a party:
(i) trademarks and service marks (registered and unregistered) and trade names,
and goodwill associated therewith; (ii) patents, patentable inventions, computer
programs, and software; (iii) databases; (iv) trade secrets and the right to
limit the use or disclosure thereof; (v) copyrights in all works, including
software programs; and (vi) domain names. The rights owned by a party in its
Intellectual Property shall be defined, collectively, as "Intellectual Property
Rights."
1.2 "Product(s)" shall mean those TITANIUM products that have been
explicitly included in this agreement and specified on the term sheet. TITANIUM
shall have the right to withdraw any Product(s) from this Agreement upon fifteen
(15) days advance written notice.
1.3 "Discount" shall mean the discount applicable to Unit Price for a
product as specified in the then current Distributor Price List. The now current
Distributor Price List is attached to this Agreement as Exhibit A. All
Distributor Price Lists are incorporated in this Agreement by this reference.
1.4 "Distributor" means the company which sells only to resellers.
1.5 "Reseller" means retail dealers only, that is companies which sell only
to end-users. The term "Reseller" does not include companies which sell to
distributors or purchase products for their own use.
1.6 "Territory" shall mean the distribution territory set forth on the Term
Sheet attached hereto.
1.7 "Trademarks" shall mean TITANIUM's registered and unregistered
trademarks, trade names and other commercial symbols.
2. APPOINTMENT AS DISTRIBUTOR
2.1 APPOINTMENT. Subject to the terms and conditions of this Agreement,
TITANIUM hereby appoints DISTRIBUTOR as an EXCLUSIVE distributor for the
Territory under the TITANIUM Program (the "Program"). In connection with such
appointment, to the extent permitted by the laws of the Territory, TITANIUM
grants DISTRIBUTOR an EXCLUSIVE and non-transferable right to promote, market,
and solicit orders in the Territory from Resellers for the Products and services
described in the Term Sheet.
2.2 AUTHORIZATION. DISTRIBUTOR may represent itself as a participant in the
Program and as a reseller for the Products. DISTRIBUTOR shall not represent that
it is otherwise affiliated with TITANIUM. DISTRIBUTOR is authorized to represent
to Resellers only such facts about TITANIUM and the Products as TITANIUM posts
on its Web site or as are contained in other published advertising and
promotional materials.
2.3 INDEPENDENT CONTRACTORS. The relationship of TITANIUM and DISTRIBUTOR
is that of independent contractors. Neither DISTRIBUTOR nor DISTRIBUTOR's
employees, consultants, contractors or agents are agents, employees, partners or
joint venturers of TITANIUM, nor do they have any authority to bind TITANIUM by
contract or otherwise to any obligation. They will not represent to the
contrary, either expressly, implicitly, by appearance or otherwise.
3. MARKETING TITANIUM PRODUCTS
3.1 DISTRIBUTOR EFFORTS. During the term of this Agreement, DISTRIBUTOR
shall use its best efforts to market and promote the Products to Resellers in
the Territory. Without limiting the generality of the foregoing, DISTRIBUTOR
shall undertake the specific marketing activities for each Product, which are
set forth in the Term Sheet.
3.2 PRODUCT RESALE. DISTRIBUTOR shall resell the Products only to Reseller.
3.3 MARKET AREA. TITANIUM shall be the sole and final arbiter of any
question whether a specific Distributor is within the Territory.
3.4 INITIAL ORDER. On the effective date of this Agreement, DISTRIBUTOR
shall place an irrevocable order with TITANIUM for products with a net order
value after discount of at least the amount specified in the term sheet.
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3.5 MINIMUM COMMITMENT. During each year of this Agreement, DISTRIBUTOR
shall accrue and timely pay to TITANIUM the net prices for the Products
licensed, sold or otherwise distributed under this Agreement. DISTRIBUTOR agrees
to a volume commitment for each year of this Agreement in the amount set forth
in the Term Sheet. Progress towards the annual commitment will be monitored
quarterly and failure to achieve this phased commitment will be taken into
account by TITANIUM when deciding about the renewal or termination of this
agreement.
3.6 DISTRIBUTOR PERSONNEL. DISTRIBUTOR will train and maintain a sufficient
number of capable technical and sales personnel, minimum of one full-time
employee, having the knowledge and training necessary to: (i) inform potential
Resellers properly concerning the features and capabilities of the Products and,
if necessary, competitive products; (ii) service and support the Products in
accordance with DISTRIBUTOR's obligations under this Agreement; and (iii)
otherwise carry out the obligations and responsibilities of DISTRIBUTOR under
this agreement.
3.7 TECHNICAL EXPERTISE. DISTRIBUTOR warrants that its staff will be
conversant with the technology contained in the Products and similar
technologies in general, and will develop sufficient knowledge of the industry
and products competitive with the Products (including specifications, features
and benefits) so as to be able to explain in detail to its Resellers the
differences between the Products and competitive products.
3.8 DISTRIBUTOR COVENANTS. DISTRIBUTOR will: (i) conduct business in a
manner that reflects favorable at all times on the Products and the good name,
goodwill and reputation of TITANIUM; (ii) avoid deceptive, misleading or
unethical practices that are or might be detrimental to TITANIUM, the Products
and services or the public; (iii) make no false or misleading representations
with regard to TITANIUM, or the Products; (iv) not publish or employ, or
cooperate in the publication or employment of, any misleading or deceptive
advertising material with regard to TITANIUM or the Products; and (v) make no
representation, warranties or guarantees to potential Resellers or End Users or
to the trade with respect to the specifications, features or capabilities of the
Products that are inconsistent with the literature distributed by TITANIUM.
3.9 COSTS AND EXPENSES. Except as expressly provided herein or agreed to in
writing by TITANIUM and DISTRIBUTOR, DISTRIBUTOR will pay all costs and expenses
incurred in the performance of DISTRIBUTOR's obligations under this Agreement.
3.10 MARKETING ACTIVITIES. DISTRIBUTOR shall develop and execute a marketing
plan sufficient to fulfill its obligations under this Agreement. To the extent
TITANIUM offers DISTRIBUTOR the opportunity to do so, DISTRIBUTOR agrees to
participate with TITANIUM in joint marketing activities with respect to certain
Products.
3.11 COMPLIANCE WITH LAWS. DISTRIBUTOR will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings with respect to the
Products.
3.12 GOVERNMENTAL APPROVAL. If any approval with respect to this Agreement,
or the notification or registration hereof, will be required at any time during
the term of this Agreement, with respect to giving legal effect to this
Agreement in any jurisdiction in which DISTRIBUTOR is operating, or with respect
to compliance with exchange regulations or other requirements so as to assure
the right of remittance from abroad of H.K. Dollars, DISTRIBUTOR will
immediately take whatever steps may be necessary in this respect, and any
charges incurred in connection therewith will be for the account of DISTRIBUTOR.
DISTRIBUTOR will keep TITANIUM currently informed of its efforts in this
connection. TITANIUM will be under no obligation to ship any Products or other
materials to DISTRIBUTOR hereunder until DISTRIBUTOR has provided TITANIUM with
satisfactory evidence that such approval, notification or registration is not
required or that it has been obtained.
4. TECHNICAL SUPPORT
4.1 RESELLER SUPPORT. DISTRIBUTOR shall provide all technical support
relating to its own products and services, and to the Products as described in
the TERM SHEET, directly to its Resellers and End-Users. DISTRIBUTOR shall
provide TITANIUM with a telephone number for TITANIUM to contact DISTRIBUTOR
directly for DISTRIBUTOR's support under this Section 4. If TITANIUM receives
such an inquiry, TITANIUM shall provide the inquiring party with the telephone
number of DISTRIBUTOR, and DISTRIBUTOR shall be responsible for providing
support to such party.
4.2 DISTRIBUTOR SUPPORT. TITANIUM shall provide DISTRIBUTOR with the
technical support services for each Product as set forth in the TERM SHEET.
5. PURCHASE AND PAYMENT TERMS
5.1 FORECASTS, PURCHASE AND SALE. DISTRIBUTOR shall submit quarterly
forecasts of its requirements for Products to TITANIUM at least forty-five (45)
days in advance of each calendar quarter. DISTRIBUTOR will be required to
maintain a minimum stock level of two times the monthly forecast of its
requirements for Products.
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TITANIUM agrees to sell to DISTRIBUTOR those Products order by DISTRIBUTOR at
the prices and under the conditions specified in this Agreement and the
applicable Distributor Price List during the term of this Agreement. Product
orders will be placed by DISTRIBUTOR's issuance of a purchase order. The terms
and conditions of this Agreement shall supersede the terms and conditions of any
purchase order issued by DISTRIBUTOR. Any additional or conflicting purchase
order terms and conditions shall be deemed null and void and shall be of no
force or effect.
5.2 PAYMENTS FOR TITANIUM PRODUCTS. DISTRIBUTOR shall be responsible for
invoicing Resellers and collecting invoiced amounts from Resellers for all
Products licensed, sold or otherwise distributed on the basis of orders
solicited by DISTRIBUTOR. For the Products licensed, sold or otherwise
distributed based upon orders solicited by DISTRIBUTOR, DISTRIBUTOR will pay
TITANIUM the amounts set forth in the applicable Distributor Price List, (the
invoiced amount will be grossed-up to cover any withholding taxes to the
applicable jurisdiction or country) in the manner and at the time set forth
therein. Such amounts may be set forth as a percentage discount from TITANIUM's
prices for the applicable Products. DISTRIBUTOR's payments shall not be affected
by Distributors payments or non-payment for the Products ordered.
5.3 PRICE CHANGES. TITANIUM's prices for the Products as of the date of
this Agreement are set forth in the applicable Distributor Price List. TITANIUM
reserves the right to change the prices for any TITANIUM Product or any other
product or service at any time. Price decreases shall take effect immediately
upon announcement. In the event of a price increase, TITANIUM shall provide
DISTRIBUTOR with fifteen (15) days' advance notice. Such changes shall not
require DISTRIBUTOR's approval. DISTRIBUTOR shall determine its own market
prices for the Products and for other products and services it sells, licenses
or otherwise distributes or makes available.
5.4 TERMS OF PAYMENT. Amounts due TITANIUM hereunder shall be paid by
DISTRIBUTOR to TITANIUM at the address set forth in paragraph 1 of this
Agreement. Payment will be made via prepayment to "TITANIUM TECHNOLOGY LIMITED".
DISTRIBUTOR may elect to apply for a line of credit with TITANIUM. The credit
limit established by TITANIUM will be based on the credit worthiness of the
DISTRIBUTOR. Acceptance of a line of credit is at the sole discretion of
TITANIUM.
5.5 TAXES. DISTRIBUTOR shall pay, indemnify and hold TITANIUM harmless from
(i) any sales, use, excise, import or export, value-added, or similar tax or
duty, and any other tax or duty not based on TITANIUM's income, and (ii) all
government permit fees, customs fees and similar fees which TITANIUM may incur
with respect to this Agreement. Such taxes, fees and duties paid by DISTRIBUTOR
shall not be considered a part of, a deduction from, or an offset against,
payments due to TITANIUM hereunder.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. The parties acknowledge that in their
performance of their duties hereunder either party may communicate to the other
(or its designees) certain confidential and proprietary information, including
without limitation information concerning DISTRIBUTOR's products and services,
TITANIUM's products and services, and the know-how, technology, techniques, or
business or marketing plans related thereto (collectively, the "Confidential
Information") all of which are confidential and proprietary to, and trade
secrets of, the disclosing party. Confidential Information does not include
information that: (i) is public knowledge at the time of disclosure by the
disclosing party; (ii) becomes public knowledge or known to the receiving party
after disclosure by the disclosing party other than by breach of the receiving
party's obligations under this Section 6 or by breach of a third party's
confidentiality obligations; (iii) was known by the receiving party prior to
disclosure by the disclosing party other than by breach of a third party's
confidentiality obligations; or (iv) is independently developed by the receiving
party.
6.2 PROTECTION OF CONFIDENTIAL INFORMATION. As a condition to the receipt
of the Confidential Information from the disclosing party, the receiving party
shall: (i) not disclose in any manner, directly or indirectly, to any third
party any portion of the disclosing party's Confidential Information; (ii) not
use the disclosing party's Confidential Information in any fashion except to
perform its duties hereunder or with the disclosing party's express prior
written consent; (iii) disclose the disclosing party's Confidential Information,
in whole or in part, only to employees and agents who need to have access
thereto for the receiving party's internal business purposes; (iv) take all
necessary steps to ensure that its employees and agents are informed of and
comply with the confidentiality restrictions contained in this Agreement; and
(v) take all necessary precautions to protect the confidentiality of the
Confidential Information received hereunder and exercise at least the same
degree of care in safeguarding the Confidential Information as it would with its
own confidential information, and in no event shall apply less than a reasonable
standard of care to prevent disclosure. The receiving party shall promptly
notify the disclosing party of any unauthorized disclosure or use of the
Confidential Information arising under this Agreement. The receiving party shall
cooperate and assist the disclosing party in preventing or remedying any such
unauthorized use or disclosure.
6.3 INJUNCTIVE RELIEF. Both parties acknowledge that the restrictions
contained in this Section 6 are reasonable and necessary to protect their
legitimate interests and that any violation of these restrictions will cause
irreparable damage to the other party. Each party agrees that damages are not an
adequate remedy for any such violation and that the other party will be entitled
to injunctive relief against each violation.
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7. TRADEMARK RIGHTS
7.1 LICENSE. TITANIUM grants DISTRIBUTOR the nonexclusive right and license
to use TITANIUM's trademarks during the term of this Agreement solely in
conjunction with the marketing, promotion and resale of the Products. TITANIUM
grants no rights in the Trademarks or in any other trademark, trade name,
service xxxx, business name or goodwill of TITANIUM except as licensed hereunder
or by separate written agreement of the parties. DISTRIBUTOR agrees that it will
not at any time during or after this Agreement assert or claim any interest in
or do anything that may adversely affect the validity of any Trademark or any
other trademark, trade name or product designation belonging to or licensed to
TITANIUM (including, without limitation registering or attempting to register
any Trademark or any such other trademark, trade name or product designation).
7.2 NO CONFUSING USE. During the term of this Agreement, DISTRIBUTOR agrees
not to use any trademark, trade name or product name confusingly similar to a
trademark, trade name or product name of TITANIUM, as expressly licensed in
Section 7.1.
7.3 MARKING REQUIREMENTS. DISTRIBUTOR agrees to (i) use the appropriate
trademark, logo, product descriptor and trademark symbol (either "TM" or "(R)"
or local equivalents), (ii) clearly indicate TITANIUM's ownership of the
Trademarks whenever the Trademarks are first mentioned in any document, and
(iii) comply with the other usage requirements set forth in TITANIUM's Trademark
and Logo Usage Guide provided to DISTRIBUTOR from time to time.
7.4 NO CONTINUING RIGHTS. Upon expiration or termination of this Agreement,
DISTRIBUTOR will immediately cease all display, advertising and use of all of
the Trademarks and will not thereafter use, advertise or display any trademark,
trade name or product designation which is, or any part of which is, similar to
or confusing with any Trademark or with any trademark, trade name or product
designation associated with TITANIUM or any Product.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 OWNERSHIP. Other than the express licenses granted by this Agreement,
TITANIUM grants no right or license to DISTRIBUTOR by implication, estoppel or
otherwise to the Products or any Intellectual Property Rights of TITANIUM. Each
party shall retain all ownership rights, title, and interest in and to its own
products and services (including in the case of TITANIUM, in the Products) and
all intellectual property rights therein, subject only to the rights and
licenses specifically granted herein. To the extent that DISTRIBUTOR translates,
or causes to be translated, any of TITANIUM's marketing materials, user manuals
or other documentation, DISTRIBUTOR agrees to assign all copyrights in such
translations to TITANIUM at the time of termination or expiration of this
Agreement.
8.2 OBTAINING RIGHTS. TITANIUM (and not DISTRIBUTOR) shall have the sole
right, but not the obligation, to pursue copyright, patent and trademark
protection, in its sole discretion, for the Products and any Intellectual
Property Rights incorporated therein. DISTRIBUTOR will cooperate with TITANIUM
in pursuing such protection, including without limitation executing and
delivering to TITANIUM such instruments as may be required to register or
perfect TITANIUM's interests in any Intellectual Property Rights and any
assignments thereof.
8.3 PURSUIT OF INFRINGERS. DISTRIBUTOR shall notify TITANIUM of
infringements of TITANIUM's Intellectual Property Rights of which DISTRIBUTOR
becomes aware. DISTRIBUTOR shall reasonably assist TITANIUM, at no cost to
DISTRIBUTOR, in pursuing TITANIUM's legal rights against any such infringers.
TITANIUM, at its sole discretion, shall determine whether to pursue any
particular case of infringement.
8.4 PROPRIETARY MARKINGS AND COPYRIGHT NOTICES. DISTRIBUTOR shall not
remove or destroy any proprietary, confidentiality, trademark, service xxxx, or
copyright markings or notices placed upon or contained in any materials or
documentation received from TITANIUM in connection with this Agreement.
9. INDEMNITIES
9.1 DISTRIBUTOR INDEMNITY. DISTRIBUTOR's indemnity obligations under
Section 9.3 shall apply to any claim, suit or proceeding by a third party
against TITANIUM and any of its directors, officers, agents, employees,
contractors, parent companies, affiliates, and/or subsidiaries (collectively,
the "TITANIUM Parties") based on or arising out of (i) the acts or omissions of
DISTRIBUTOR in connection with (A) its performance or failure to perform any
other obligations in this Agreement or any agreement with an Reseller or
Subscriber, and (B) any other product or service provided by DISTRIBUTOR to
Resellers or Subscribers; and (ii) any unauthorized representation or any
misrepresentation of fact to any third party with respect to one or more of the
TITANIUM Parties or the TITANIUM Products made by DISTRIBUTOR or any director,
officer, agent, or employee of DISTRIBUTOR.
9.2 TITANIUM INDEMNITY. TITANIUM's indemnity obligations under Section 9.3
shall apply to any claim, suit or proceeding by a third party against
DISTRIBUTOR and any of its directors, officers, agents, employees,
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contractors, parent companies, affiliates, and/or subsidiaries (collectively,
the "DISTRIBUTOR Parties") based on or arising out of (i) the acts or omissions
of TITANIUM in connection with (A) its performance or failure to perform the
obligations in this Agreement, and (B) any Products provided to DISTRIBUTOR
under this agreement; (ii) any unauthorized representation or any
misrepresentation of fact to any third party with respect to one or more of
DISTRIBUTOR Parties made by TITANIUM or any director, officer, agent, or
employee of TITANIUM, or (iii) any third party claims of copyright infringement
or trade secret misappropriation to the extent such claims arise directly from
the TITANIUM proprietary components of the Product.
9.3 NOTICES AND INDEMNITIES. Subject to the limitations set forth herein,
each party (the "Indemnifying Party"), at its own expense, shall (a) defend, or
at its option settle, any claim, suit, or proceeding against the other party
(the "Indemnified Party") for which it has an indemnification obligation under
this Agreement and (b) pay any final judgment entered or settlement against the
Indemnified Party in any such suit or proceeding defended by the Indemnifying
Party. An Indemnifying Party shall not take any action to settle or defend any
such claim, suit, or proceeding that would in any manner impose obligations
(monetary or otherwise) on an Indemnified Party without the Indemnified Party's
written consent. An Indemnified Party shall have the right to participate in the
defense of any claim with its own counsel and shall be responsible for all costs
associated therewith. An Indemnifying Party shall have the right to control and
direct the investigation, preparation, defense, and settlement of the claim, and
the Indemnified Party shall reasonably cooperate with the Indemnifying Party in
the defense of such claim at the Indemnifying Party's expense. In addition, an
Indemnified Party shall give the Indemnifying Party prompt written notice of any
claim, suit, or proceeding for which the Indemnifying Party has an
indemnification obligation under this Agreement. In the event such notice is not
promptly given, the Indemnifying Party's obligation hereunder shall not include
any additional expenses or damages to the extent attributable to such failure or
delay of notice.
10. LIMITED WARRANTY
10.1 LIMITED WARRANTY. TITANIUM warrants to the original purchaser of a
Product that the hardware is free from defects in materials and workmanship for
a period of twelve (12) months from the date of shipment from TITANIUM to the
DISTRIBUTOR OR one (1) year from the date of purchase from the DISTRIBUTOR ("the
Warranty Period") to the DISTRIBUTOR'S customer, whichever comes first. Should a
Product fail to comply with this Limited Warranty at any time during the
Warranty Period, the purchaser's sole and exclusive remedy is for TITANIUM, at
its option, to either repair or replace the product as described below, provided
that in TITANIUM's sole determination the part or Product has not been abused,
misused, repaired or modified. All products will be serviced and returned via
ground or sea at no charge to the purchaser. In the event TITANIUM is unable to
repair or replace the product within a reasonable period of time, the
purchaser's sole and exclusive remedy is to receive reimbursement of the amount
the purchaser actually paid for the product.
10.2 RETURNS. All returns under this Limited Warranty require a Return
Merchandise Authorization number (RMA #) provided by TITANIUM Customer Service.
Products which require Limited Warranty service during the Warranty Period must
be delivered to TITANIUM at the address listed below. The RMA # should be
prominently displayed on the outside of the shipping container. Replacement
parts or complete products will be furnished on an exchange basis only. Replaced
parts or products become the property of TITANIUM.
Returns Department, TITANIUM TECHNOLOGY LIMITED
4/F., BOCG Insurance Tower, 000-000 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx
Tel (000) 0000-0000, E-mail: xxxx@xxxxxxxx-xxxx.xxx
10.3 SHIPPING. DISTRIBUTOR agrees to pay shipping charges to TITANIUM or
directly to the carrier, insure the product or assume the risk of loss or damage
which may occur in transit, and to use a shipping container equivalent to the
original packaging. If any labor, repair or parts replacement is required
because of accident, negligence, misuse, theft, vandalism, fire, water or other
peril, or because of conditions outside of specifications, including, but not
limited to, electric power, temperature, humidity, or dust; or by moving,
repair, relocation, or alteration not performed by TITANIUM, or by any other
cause other than normal use, this Limited Warranty shall be void and shall not
apply.
10.4 DUTY AND SALES TAX. DISTRIBUTOR agrees to pay any applicable duties
sales taxes or similar charges. TITANIUM products are supplied to the
DISTRIBUTOR FOB, Hong Kong.
10.5 APPLICABILITY. This Limited Warranty shall not be applicable to the
extent that any provision of this Limited Warranty is prohibited by or contrary
to, any international, federal, state or local law or regulation which cannot be
preempted. This Limited Warranty gives the purchaser specific legal rights, but
the purchaser may have different or additional legal rights, depending on the
jurisdiction in which the purchaser is located.
11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
11.1 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS
AGREEMENT, TITANIUM'S PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY
WARRANTY WHATSOEVER. TITANIUM DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, TO DISTRIBUTOR AS TO ANY MATTER WHATSOEVER, INCLUDING
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ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY TITANIUM OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR
IN ANY WAY INCREASE THE SCOPE OF TITANIUM'S OBLIGATIONS.
11.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TITANIUM PRODUCTS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND
WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF
ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL,
PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR
AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR
LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. UNDER NO CIRCUMSTANCES SHALL TITANIUM'S TOTAL LIABILITY TO DISTRIBUTOR
OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT
PAID BY DISTRIBUTOR UNDER THIS AGREEMENT TO A MAXIMUM OF ONE MILLION DOLLARS
(HK$1,000,000.00), REGARDLESS OF WHETHER AN ACTION OR CLAIM IS BASED ON
WARRANTY, CONTRACT, TORT OR OTHERWISE.
12. FORCE MAJEURE
In no event shall either party be responsible for delays in delivery or
performance when the same are the result of any cause beyond such party's
control.
13. TERM AND TERMINATION
13.1 TERM AND TERMINATION. The term of this Agreement shall commence on the
Start Date and, unless earlier terminated pursuant to the terms of this
Agreement, will continue until the termination date as set forth in the attached
"Term Sheet." Upon mutual agreement, this contract may be extended for a Renewal
Period as set forth in an updated "Term Sheet." If DISTRIBUTOR has met its
minimum volume commitment as set forth in paragraph 3.5 of this Agreement the
Agreement can be renewed for an additional one 6 six (6) six month period,
unless either party notifies the other in writing of its intention not to renew
at least fifteen (15) days prior to the end of the term or the applicable
renewal term. The parties agree that the Limitation of Liability provision of
Section 11.2 shall apply to any termination of this Agreement by either party.
DISTRIBUTOR waives any right it may have to receive any compensation or
reparations on termination or expiration of this Agreement or any rights
hereunder under the law of any jurisdiction, other than as expressly provided in
this Agreement.
13.2 TERMINATION FOR DEFAULT. Either party may terminate this Agreement at
any time on written notice to the other in the event of a material default by
the other party and a failure to cure such default within a period of fifteen
(15) days following receipt of written notice specifying that a default has
occurred.
13.3 INSOLVENCY. Either party may terminate this Agreement at any time upon
(i) the institution of any proceedings by or against the other party seeking
relief, reorganization or arrangement under any laws relating to insolvency,
which proceedings are not dismissed within sixty (60) days; (ii) the assignment
for the benefit of creditors, or the appointment of a receiver, liquidator or
trustee, of the other party's property or assets; or (iii) the liquidation,
dissolution or winding up of the other party's business.
13.4 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement, DISTRIBUTOR shall cease using, marketing, promoting and soliciting
orders for the Products. DISTRIBUTOR will discontinue the use of all Trademarks.
Upon the expiration or termination of this Agreement, TITANIUM will provide
support to Resellers, End Users, and Subscribers referred by DISTRIBUTOR. Any
expiration or termination shall not discharge any obligation to make payments
which have accrued or are owing as of the effective date of such expiration or
termination or which accrue after expiration or termination for TITANIUM
Products shipped or invoiced upon orders placed before such expiration or
termination. Expiration or termination of this Agreement for any reason shall
not affect any other TITANIUM Agreements with Resellers or end-users.
13.5 RETURN OF CONFIDENTIAL INFORMATION. Upon expiration or termination of
this Agreement for any reason, each party shall return the other party's
Confidential Information to it, or, with the prior written consent of the other
party, shall destroy the other party's Confidential Information. Each party
shall certify to the other in writing within thirty (30) days of expiration or
termination that such party has returned or destroyed all of such Confidential
Information.
13.6 SURVIVAL OF TERMS. Expiration or termination of this Agreement shall
not relieve either party of any obligations that accrue prior to the date of
such expiration or termination. The provisions of Sections 3.11, 3.14, 5, 6, 7,
8, 9, 10, 11, 13.1, 13.4, 13.5, 13.6, 14.1, 14.6, 14.8, and 14.9 of these
Standard Terms and Conditions shall survive the expiration or termination of
this Agreement for any reason.
14. MISCELLANEOUS PROVISIONS
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14.1 GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. This Agreement shall be
governed by and construed in accordance with the laws of Hong Kong Special
Administrative Region, PRC. (irrespective of its choice of law principles).
14.2 BINDING UPON SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall be binding upon, and inure to the benefit of, the
successors, representatives and assigns of the parties hereto. This Agreement
shall not be assignable by DISTRIBUTOR by operation of law (including as a
result of a merger or a transfer of a controlling interest in DISTRIBUTOR's
voting securities) or otherwise without the prior written authorization of
TITANIUM, which shall not be unreasonably withheld. Any such purported
assignment shall be void and of no effect and shall permit TITANIUM to terminate
this Agreement.
14.3 SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable, the remainder of this Agreement shall be interpreted so as best
to reasonably effect the intent of the parties hereto. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF
DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER
PROVISION AND TO BE ENFORCED AS SUCH.
14.4 ENTIRE AGREEMENT. This Agreement, and the Exhibits and Distributor
Price Lists attached hereto constitute the entire understanding and agreement of
the parties with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements or understandings between the parties.
14.5 AMENDMENT AND WAIVERS. Except as otherwise expressly provided in this
Agreement, any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived, only by a writing signed
by the party to be bound.
14.6 ATTORNEYS' FEES. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and costs.
14.7 NOTICES. Any notice, demand, or request with respect to this Agreement
shall be in writing and shall be effective only if it is delivered by a courier
service that confirms delivery in writing, or mailed, certified or registered
mail, postage prepaid, return receipt requested, and in each case addressed to
the parties at the addresses set forth in paragraph 1, and in the case of
TITANIUM, to the attention of the Chief Executive Officer, and in the case of
DISTRIBUTOR to the Contact Person as identified on the Term Sheet. Such
communications shall be effective when they are received. Any party may change
its address for such communications by giving notice thereof to the other party
in conformity with this Section.
14.8 FOREIGN RESHIPMENT LIABILITY. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT
TO ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT FROM HONG
KONG OF TECHNICAL INFORMATION, SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH
MAY BE IMPOSED FROM TIME TO TIME BY THE H.K.S.A.R. GOVERNMENT. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, DISTRIBUTOR AGREES THAT IT
WILL NOT EXPORT OR RE-EXPORT, DIRECTLY OR INDIRECTLY, ANY TECHNICAL INFORMATION,
SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE TO ANY COUNTRY FOR WHICH SUCH
GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN EXPORT LICENSE OR OTHER
GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT OR RE-EXPORT WITHOUT FIRST OBTAINING
SUCH LICENSE OR APPROVAL.
14.9 PUBLICITY. Neither party will disclose to third parties, other than its
agents and representatives on a need-to-know basis, the terms of this Agreement
or any exhibits hereto without the prior written consent of the other party,
except (i) either party may disclose such terms to the extent required by law;
(ii) either party may disclose the existence of this Agreement, (iii) either
party may disclose such terms to the extent necessary in connection with the due
diligence review of such party by potential business partners, investors or
acquirers, or investment bankers, to such persons and to their employees,
agents, attorneys and auditors; and (iv) either party shall have the right to
disclose that DISTRIBUTOR is a participant in the Program and a DISTRIBUTOR of
the Products.
14.10 NO WAIVER. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any other
provision.
14.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
14.12 DUE AUTHORIZATION. DISTRIBUTOR hereby represents and warrants to
TITANIUM that the individual executing this Agreement on behalf of DISTRIBUTOR
is duly authorized to execute this Agreement on behalf of DISTRIBUTOR and to
bind DISTRIBUTOR hereby.
14.13 CHOICE OF LANGUAGE. The original of this Agreement has been written in
English. DISTRIBUTOR waives any right it may have under the law of any
jurisdiction to have this Agreement written in the language of such jurisdiction
or any other language.
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Rev 05122003 TITANIUM JM DISTRIBUTOR HS
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