EXHIBIT 10.8
INTERNATIONAL DISTRIBUTOR AGREEMENT
THIS AGREEMENT is made as of October 1, 2001, between uniView Softgen
Corporation, a Texas corporation with its principal offices in Dallas,
Texas, U.S.A ("USC"), and Korea Computer, Inc., a Korean corporation with
its principal offices in Seoul, Korea ("Distributor").
1. APPOINTMENT
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a. General. Subject to this Agreement, USC hereby grants to
Distributor, and Distributor hereby accepts from USC, the exclusive
and non-transferable right to market, install, maintain and support
the computer products described in Paragraph 1(b) (the "Products")
within the territory described in Paragraph 1(c) (the "Territory"),
except that Distributor shall have no such right with existing
customers of USC within the Territory as of the date of this
Agreement, including, but not limited to, HSBC Holdings plc and
affiliates, which right USC specifically reserves to itself.
b. Products. "Products" means (i) the machine-readable object code
version of the software described in Exhibit "A" and the portions
of the human-readable source code version thereof that USC makes
available to Distributor, if any, whether embedded on disc, tape,
chip or other media, for use on the computer platform(s) specified
in Exhibit "A" (the "Software"), (ii) the published user manuals and
documentation that USC makes generally available for the Software
(the "Documentation"), (iii) the updates or revisions of the Software
or Documentation that USC may release from time to time, other than
as a separately-priced upgrade, enhancement or customization (the
"Updates") and (iv) all copies of the Software, Documentation or
Updates. Upon prior notice to Distributor, USC may add new Products
to or delete existing Products from Exhibit "A", subject to any
binding commitment that USC has made to Distributor.
c. Territory. "Territory" means The Republic of Korea. Distributor
will not promote or solicit orders for the Products or related
services outside of the Territory. Distributor will immediately
notify USC if Distributor receives an inquiry or order (i) from
any customer located outside of the Territory for Products to be
installed inside of the Territory, (ii) from any customer located
inside of the Territory for Products to be installed outside of the
Territory or (iii) from any customer that uses or intends to use
the Products both inside and outside of the Territory. USC and
Distributor will negotiate in good faith the terms and conditions
relating to such order, including the applicable discount from list
price and the provision of maintenance and support.
d. Limitations. Subject to the satisfaction by Distributor of the
minimum purchase requirement in accordance with Section 5(f) hereof,
USC agrees not to appoint another distributor for the Products in
the Territory during the Term of this Agreement. However, USC may
promote, solicit and accept orders for delivery, installation and
use of the Products within the Territory of authorize other related
or unrelated persons (including, but not limited to, agents,
distributors systems integrators, value-added resellers or original
equipment manufacturers) located inside or outside of the Territory
to do so. Any such order or authorization will not be deemed to
violate this Agreement or entitle Distributor to any commission or
other compensation, except as otherwise agreed between the parties.
At USC's request, Distributor will offer installation, maintenance
and support services to customers within the Territory that have
obtained the Products from USC or any such person.
2. DISTRIBUTOR'S OBLIGATIONS
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a. Best Efforts. Distributor will use its best efforts throughout the
Territory to (i) promote, solicit and obtain orders for the Products
for Distributor's account, (ii) perform its installation, maintenance
and support services in a timely and professional manner and (iii)
develop the good will and reputation of USC. Distributor represents
that it possesses the experience, skills and resources required to
carry out these marketing and service activities.
b. Facilities and Staff. Distributor will possess and maintain
facilities and staff that effectively market and service the Products
throughout the Territory. Distributor will establish and implement
appropriate training programs for its staff. All staff members will
be full-time employees of Distributor. Unless otherwise agreed on
a case-by case basis, Distributor will not appoint any independent
agent, representative, sub-distributor, sub-contractor or other
person to market or service the Products.
c. Demonstration Products. USC will provide Distributor with one copy
of the Products free of charge for demonstration purposes (the
"Demonstration Products") Subject to Section 9. USC grants
Distributor a non-exclusive and non-transferable license to use the
Demonstration Products on the designated hardware system exclusively
to conduct customer demonstration, training and technical support.
Distributor will periodically update the Demonstration Products as
USC deems appropriate. Distributor will not sublicense, assign or
otherwise transfer the Demonstration Products to any person without
USC'S prior written approval.
d. Promotional Literature. Distributor will use the brochures and
other promotional literature describing the Products in the English
language that USC may provide to distributor (the "Promotional
Literature"). Distributor may reproduce the Promotional Literature
for distribution within the Territory. Subject to Section 10,
Distributor may also translate the Promotional Literature for
distribution within the Territory, if applicable. USC will own any
such translation. Distributor will affix USC'S copyright notice to
all such translations and reproductions thereof. Distributor will
bear all translation and reproductions costs, unless otherwise agreed
on a case-by-case basis. Distributor may also prepare, at its cost,
marketing and advertising materials describing the Products which are
suitable for used in the Territory, and shall deliver all such
materials to USC for its approval prior to Distributor's use thereof.
With respect to all such materials in the Korean language,
Distributor shall also provide USC with an English translation
thereof.
e. Software Agreement. Distributor will promote, solicit and obtain
orders for the object code version of the Products using the form
of Software License Agreement attached hereto as Exhibit "B" (the
"Software Agreement") and the maintenance thereof using the form of
Software Maintenance Agreement attached hereto as Exhibit "C" (the
"Maintenance Agreement"). USC may modify or replace the Software
Agreement or the Maintenance Agreement at any time, in whole or in
part, subject to any binding commitment that USC has made to
Distributor. If Distributor translates the Software Agreement or
the Maintenance Agreement into the language(s) spoken within the
Territory, Distributor will deliver the proposed translation to USC
for approval prior to use. Distributor will not modify of amend the
terms and conditions of the Software Agreement or the Maintenance
Agreement without USC's prior written approval on a case-by case
basis. In no event will Distributor deliver to any customer or third
person the source code for the Products, in whole or in part, without
USC's prior written approval on a case-by-case basis.
f. Maintenance Agreement. Distributor will offer maintenance and
support services as contemplated by the form of the Maintenance
Agreement in Exhibit "C" to all customers of the Products within the
Territory including, at USC's request, those customers that obtained
the Products from USC pursuant to Paragraph 1(d). The Maintenance
Agreements will be assignable to USC in the event contemplated under
Paragraph 12(b), but will not otherwise obligate or purport to
obligate USC to perform any of these services. The quality and
timeliness of Distributor's services will be comparable to that which
USC offers to its own customer.
g. Other Services. Distributor will offer installation services and
provide other services as appropriate to all customers of the
Products within the Territory including, at USC's request, those
customers that obtained the Products from USC pursuant to Paragraph
1(d). Distributor will negotiate and execute separate agreements
with customers with respect to such services, the form of which is
subject to prior review and approval by USC. The quality and
timeliness of Distributor's services will be comparable to that
which USC offers to its own customers.
h. Records and Reports. Distributor will maintain, and provide to
USC upon request, accurate records of its marketing and service
activities under this Agreement, including (i) a current list of
customers for the Products and (ii) copies of all Software Agreements
and Maintenance Agreements executed with customers. Distributor will
also provide such other reports as USC may periodically request, such
as (i) a description of Distributor's facilities and staff and (ii) a
summary of the activities of competitors within the Territory.
i. Enforcement. Distributor will effectively enforce against all of
its customers the provisions of the Software Agreement that affect
USC's proprietary or confidentiality rights in the Products. If
Distributor learns that any customer has breached any such provision,
Distributor will immediately notify USC and take, at Distributor's
expense, all steps that may be available to enforce the Software
Agreement, including availing itself of actions for seizure or
injunctive relief. If Distributor fails to take these steps in
a timely and adequate manner, USC may take them in its own or
Distributor's name and at Distributor's expense.
j. Non-Competition. During the Term of this Agreement, Distributor and
its directors, officers and managers shall use its best efforts not
to promote, represent, distribute, install, customize, maintain,
support or otherwise market or service computer products that so
directly compete with or perform functions similar to the Products
that discharge of Distributor's obligations under this Agreement may
be affected. Upon executing this Agreement, Distributor will notify
USC of the other computer products that Distributor markets or
services. Distributor will also promptly notify USC of any
additional computer products that Distributor may begin to market
or service during the Term of this Agreement.
3. USC's OBLIGATIONS
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a. Marketing Materials. USC will provide Distributor, at no charge,
with the initial quantity of Promotional Literature and Software
Agreements that USC deems appropriate for Distributor to promote,
solicit and obtain orders for the Products within the Territory. At
Distributor's request, USC will provide Distributor with additional
quantities of such marketing materials, subject to their availability
at USC. USC may charge Distributor for additional Promotional
Literature at USC's then-current standard rates.
b. Technical Materials. USC will periodically provide Distributor,
at no charge, with the existing data, diagrams and other technical
materials that USC deems appropriate for Distributor to install and
support the Products within the Territory. USC may limit the number
of copies of such technical materials that Distributor will be
authorized to make, if any. Distributor will (i) consecutively
number each such copy, (ii) maintain a current logbook that record
the numbers of copies that have been made and (iii) reproduce all
confidentiality and proprietary notices on each copy.
c. Training. USC agrees to provide Distributor with training, at
USC's standard rates, to market and service the Products within the
Territory. From time to time in the future USC may also require
Distributor to attend additional training at USC's facilities in the
United States. Distributor will bear all travel and out-of-pocket
expenses that its trainees may incur in attending these sessions.
d. Remote Support. USC will provide Distributor with access to USC's
technicians for advice, consultation and assistance to diagnose and
resolve the problems that customers may encounter in using the
Products. All such remote support will be offered during regular
business hours from the facility that USC may designate. USC may
provide such remote support by (i) telephone or other forms of
communication or (ii) visits by Distributor's personnel to a USC
facility, as USC deems appropriate. Distributor will pay all
telephone, travel and other out-of-pocket expenses that Distributor
may incur in connection with such remote support. USC may charge
Distributor for such remote support at USC's standard rate.
e. On-Site Visits. USC may periodically send to Distributor's
facilities certain of USC's marketing and service personnel to
advise, consult and assist Distributor in marketing and servicing the
Products. USC and Distributor will schedule such on-site visits for
mutually acceptable times, subject to the availability of appropriate
USC personnel. Unless otherwise agreed on a case-by case basis, USC
may charge Distributor for such visits at USC's standard rate and
Distributor will pay or reimburse USC for all travel and out-of-
pocket expenses that USC's personnel may incur in connection with
such on-site visits.
f. Updates. USC may periodically provide Distributor with Updates for
the Products that are installed within the Territory. Unless
otherwise agreed on a case-by-case basis, Distributor will import and
duplicate the Updates only as required for distribution to customers
that have contracted for maintenance of the Products in accordance
with the terms and conditions of a Software Agreement or Maintenance
Agreement. This Paragraph will not be interpreted to require USC
to (i) develop and release Updates or (ii) customize the Updates
to satisfy the particular requirements of customers within the
Territory. The Updates will not include any new Software that USC
decides, in its sole discretion, to make generally available as a
separately-priced upgrade or option. USC may add such upgrades or
options to this Agreement as new Products in accordance with
Paragraph 1(b).
4. ORDERS AND DELIVERY
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a. Placement. Distributor will place orders for the Products directly
with USC, unless otherwise agreed on as case-by-case basis. All
orders will be placed in writing. Each order will specify (i) the
identity and location of the customer, (ii) the type and quantity of
Products orders, (iii) the requested shipment date(s) and (iv) the
configuration of the proposed installation, if applicable.
Distributor will attach a copy of the Software Agreement that
Distributor has executed with the customer to each order.
b. Acceptance. USC may accept or reject any order at its discretion,
subject to any binding commitment that USC has made to Distributor.
No order will be deemed accepted unless USC confirms its acceptance
in writing. USC will use its reasonable efforts to respond to each
order within 15 days after its receipt from Distributor. Any order
that USC may accept will be subject to the terms and conditions of
this Agreement, unless otherwise agreed on a case-by-case basis.
c. Shipment. USC will establish a shipment schedule for each order
accepted from distributor. USC will ship the Products from its
distribution center in accordance with this schedule, subject to
delays beyond USC's control. USC will select the method of shipment
for Distributor's account and obtain all licenses required to export
the Products from the country of origin. Distributor will (i) obtain
all licenses required to import the Products into the Territory (ii)
clear the Products through local customs promptly upon their arrival
at the territory and (iii) pay all customs duties and other charges
assessed on such importations in the Territory, if applicable.
d. Delivery. USC will deliver the Products to Distributor upon arrival
at the port of entry in the Territory (EX SHIP or equivalent term).
Risk of loss will pass to Distributor upon delivery. Any use of "EX
WORKS," "FOB" or other INCOTERMS will apply only to price and not to
delivery or passage of title or risk of loss. Delivery of airway
bills or other bills of lading before or after the Products arrive in
the Territory will not affect the place of delivery. All sales are
made on the basis of "no arrival, no sale".
e. Inspection. Distributor will inspect the Products upon arrival in
the Territory and immediately notify USC of any discrepancy between
the Products and shipping documents. Distributor will retain
any broken or tampered Products in their original packaging for
inspection by USC or the insurer. Any insurable claim not reported
to USC within 15 days after arrival may be denied.
f. Costs. Distributor will pay or reimburse USC for all insurance,
brokerage, handling, transportation, demurrage and other costs that
USC may incur in delivering the Products to Distributor from USC's
distribution center. USC will separately identify all reimbursable
costs in its order confirmation or invoice issued to Distributor.
5. PRICES AND PAYMENT
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a. List Prices. For each Product that Distributor delivers to a
customer Distributor will pay to USC USC's then-current list price
of the Product (the "List Price"), less the applicable discount
specified in Exhibit "A", if any. All List Prices will be stated in
U.S. dollars, F.O.B., USC's distribution center. The current List
Prices are specified in Exhibit "A". USC may change the List Prices,
in whole or in part, at any time upon 90 days' prior notice to
Distributor, subject to any binding commitment that USC has made to
Distributor.
b. Maintenance Fees. For each customer to whom Distributor provides
maintenance services, Distributor will pay to USC USC's then-current
time and material maintenance fees (the "Maintenance fees"). KCI has
the option to purchase in advance time and material maintenance in
bulk or individual hours. All Maintenance Fees will be stated in
U.S. Dollars, F.O.B., USC's distribution center. The current
Maintenance Fees are specified in Exhibit "A". USC may change the
Maintenance Fees, in whole or in part, at any time upon 90 days'
prior written notice to Distributor, subject to any binding
commitment that USC has made to Distributor.
c. Currency and Place. Distributor will pay all amounts due to USC
pursuant to this Agreement in U.S. Dollars at USC's office in Dallas,
Texas, U.S.A., or other place outside of the Territory that USC may
designate. All currency conversions required under this Agreement
will be made at the official rate of exchange of purchases of U.S.
dollars on the date of payment. Any late payment will accrue
interest at the lesser of (i) LIBOR rate quoted on the date that
the payment became past due, plus 5%, and (ii) the maximum interest
allowable under the laws of the Territory. Distributor will pay any
late payment charge upon remitting the principal amount to USC.
d. Method and Time. Unless otherwise agreed on a case-by-case basis,
Distributor will make payment of the price of the Products and
reimbursable delivery costs on the earlier of (i) receipt by the
distributor of its sublicense fee for such product from the customer
or (ii) 90 days after the execution of a Software Agreement with such
customer. Distributor will make payment of renewal maintenance fees,
upgrade fees and all other similar charges within 45 days after the
date of renewal. Distributor will make payment of technical support
fees net 30 from the date of the invoice for such services.
Distributor will make payment of minimum purchase requirements within
30 days after the end of the period for which such charges are
incurred. Distributor will make all payments by certified or
cashier's check or wire transfer and will bear all banking and
similar charges incurred in connection with any of these payments.
e. Taxes. All amounts payable by distributor to USC under this
Agreement are exclusive of any tax, levy or similar governmental
charge that may be assessed by any jurisdiction, whether based on
gross revenue, the delivery, possession or use of the Products, the
execution or performance of this Agreement or otherwise, except for
net income, net worth or franchise taxes assessed on USC outside of
the Territory. If under the laws of the Territory, Distributor is
required to withhold any tax on such payments, then Distributor shall
remit to USC all such payments less such withholding taxes and will
promptly furnish USC with the official receipt of payment of these
taxes to the appropriate taxing authority. Distributor will pay all
other taxes, levies or similar governmental charges or provide USC
with a certificate of exemption acceptable to the taxing authority.
f. Minimum Purchase Requirement. Distributor further agrees to pay to
USC, as a minimum guarantee against purchases of Products from USC,
the following: (i) $500,000 during the first twelve (12) months of
this Agreement; (ii) $375,000 during the first six (6) months of the
second year of this Agreement; (iii) $375,000 during the second six
(6) months of the second year of this Agreement; and (iv) $250,000
during each contract quarter thereafter during any renewal period of
this Agreement. In the event that Distributor purchases less than
the minimum guaranteed purchase requirement during any relevant
period, Distributor shall elect to pay to USC either (i) the
difference between the guaranteed amount and the amount of actual
purchases during the relevant period, or (ii) an accommodation fee
of thirteen percent (13%) of the difference between the guaranteed
amount and the amount of actual purchases during the relevant period;
if Distributor elects to pay the accommodation fee, the amount of the
difference will be deferred until the next relevant period and added
to the minimum purchase requirement for that period; however, in no
event shall the total amount of deferrals, when added to the minimum
purchase requirement for the relevant period, exceed $600,000, in
which event Distributor shall pay to USC the amount that exceeds
$600,000. In the event that Distributor exceeds the minimum
guaranteed purchase requirement during any relevant period, the
amount of any such excess may be carried over and applied as a credit
against the minimum guaranteed purchase requirement for the next
relevant period.
6. LIMITED WARRANTIES
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a. Warranty. USC warrants that the Products will (i) conform to USC's
published products specifications in effect on the date of delivery
and (ii) perform substantially as described in the accompanying
Documentation after delivery for the applicable warranty period
specified in Exhibit "A". Distributor acknowledges that (i) the
Products may not satisfy all of the customer's requirements and
(ii) the use of the Products may not be uninterrupted or error-free.
Distributor further acknowledges that (i) the prices and other
charges contemplated under this Agreement are based on the limited
warranty, disclaimer and limitation of liability specified in
Sections 6, 7 and 8 and (ii) such charges would be substantially
higher if any of these provisions were unenforceable.
b. Remedies. In case of breach of warranty or any other duty related
to the quality of the Products, USC will, at its option, correct or
replace the defective Product. If USC determines that a defective
Product cannot be corrected or replaced within a reasonable period of
time, Distributor may return the defective Product to USC in exchange
for a refund of (i) the price that Distributor actually paid to USC
for such Products, less depreciation based on a 5-year straight-line
depreciation schedule, and (ii) a pro rata share of the 12-month
maintenance fees that Distributor actually paid to USC for the period
that such Product was not usable.
c. Limitation. The warranties and remedies specified in this Section
will not apply if the Products malfunctions due to extrinsic causes,
such as (i) natural disasters, including fire, smoke, water,
earthquakes or lightning, (ii) electrical power fluctuations or
failures, (iii) the neglect or misuse of the Product or other failure
to comply with instructions set forth in the Documentation, (iv) a
correction or modification of the Product not provided by USC, (v)
the failure to promptly install an Update, (vi) a malfunction of the
customer's hardware equipment or (vii) the combination of the Product
with other software not provided by USC.
d. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND
SECTION 7, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES
AND GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR
IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS
BY USC OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED.
7. INDEMNITY
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a. Indemnity. If an action is bought against Distributor claiming that
a Product infringes a patent or copyright within the Territory, USC
will defend Distributor at USC's expense and, subject to this Section
and Section 8, pay the damages and costs finally awarded against
Distributor in the infringement action, but only if (i) the
Distributor notifies USC promptly upon learning that the claim might
be asserted, (ii) USC has sole control over the defense of the claim
and any negotiation for its settlement or compromise and (iii) the
Distributor takes no action that, in USC's judgment is contrary to
USC's interest.
b. Alternative Remedy. If a claim described in Paragraph 7(a) may be
or has been asserted, Distributor will permit USC, at USC's option
and expense, to (i) procure the right to continue using the Product,
(ii) replace or modify the Product to eliminate the infringement
while providing functionally equivalent performance or (iii) accept
the return of the Product in exchange for a refund of the price that
Distributor actually paid to USC for such Product, less depreciation
based on a 5-year straight-line depreciation schedule, and a pro rata
share of the 12-month maintenance fees that Distributor actually paid
to USC for the then-current maintenance period of the Product.
c. Limitation. USC will have no indemnity obligation to Distributor if
the patent of copyright infringement claim results from (i) a
correction or modification of the Product not provide by USC, (ii)
the failure to promptly install and Update or (iii) the combination
of the Product with other software not provided by USC.
8. NO CONSEQUENTIAL DAMAGES
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UNDER NO CIRCUMSTANCES WILL USC OR ITS RELATED PERSONS BE LIABLE FOR
ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR
LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF
DISTRIBUTOR OR ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS
FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS,
INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR
IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS
OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE,
STRICT LIABILITY OR TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF DEATH
OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES
SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH USC AND
ITS RELATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE
TOTAL AMOUNT ACTUALLY PAID TO USC BY DISTRIBUTOR FOR THE SPECIFIC
PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.
9. INFORMATION
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a. Confidentiality. Distributor acknowledges that the Products
incorporate confidential and proprietary information developed or
acquired by or licensed to USC (the "Information"). Distributor
will take all reasonable precautions necessary to safeguard the
confidentiality of the information and (ii) those which USC may
reasonably request from time to time. Distributor will not allow the
removal or defacement of any confidentiality or proprietary notice
placed on the Products or other items of Information. The placement
of copyright notices on these items will not constitute publication
or otherwise impair their confidential nature.
b. Ownership. All patents, copyright, circuit layouts, trade secrets
and other proprietary rights in or related to the Products are and
will remain the exclusive property of USC or its licensors, whether
or not specifically recognized or perfected under the laws of the
Territory. Distributor will not take any action that jeopardizes
USC's or its licensors' proprietary rights or acquire any rights in
the Products or Information, except the limited use rights specified
in paragraph 9(c). Unless otherwise agreed on a case-by-case basis,
USC or its licensor will own all rights in any copy, translation,
modification, adaptation or derivation of the Products or other items
of Information, including any improvement or development thereof.
Distributor will obtain, at USC's request, the execution of any
instrument that may be appropriate to assign these rights to USC or
its licensor or perfect these rights in USC's or its licensor's name.
c. Use. Distributor will use the Products and other items of
Information exclusively to perform its marketing and service
activities pursuant to this Agreement. Except as specifically
contemplated in Paragraphs 3(b) and 3(f), Distributor will not copy
the Products or other items of information without USC's specific
approval. Distributor will reproduce USC's or its licensors'
confidentiality and proprietary notices on all such copies. Except
as otherwise agreed with USC in writing, Distributor will not
translate, modify, adapt, decompile, disassemble or reverse engineer
the Products. Distributor will promptly notify USC if Distributor
intends to create any shell or supplemental software that will be
combined with the Products. At USC's request, Distributor will
provide USC with the specifications, flow charts, source and object
code and other documentation for such programs.
d. Disclosure. Distributor will not disclose, in whole or in part, the
source or object code of the Products or any other item that USC
designates as confidential to any person, except to (i) customers as
and to the extent contemplated under an executed Software Agreement
and (ii) those of Distributor's employees who require access to
perform Distributor's obligations under this Agreement and who
have first agreed to be bound by the terms and conditions of a
confidentiality agreement with Distributor which requires a high
level of confidentiality substantially equivalent to that reflected
in the form attached as Exhibit "D" (the "Confidentiality
Agreement"). Distributor will execute all such Confidentiality
Agreements as principal on its own behalf and, exclusively to accept
or otherwise perfect USC's right thereunder, as agent on behalf of
USC. At USC's request, Distributor will provide USC with copies of
all Confidentiality Agreements. In no event will Distributor amend
or cancel any Confidentiality Agreement without USC's prior written
approval.
e. Unauthorized Use or Disclosure. Distributor acknowledges that any
unauthorized use or disclosure of the Products or any other item of
Information may cause irreparable damage to USC or its licensors. If
an unauthorized use or disclosure occurs, Distributor will promptly
notify USC and take, at Distributor's expense, all steps which are
necessary to recover the Product or Information and to prevent its
subsequent unauthorized use or dissemination, including availing
itself of actions for seizure and injunctive relief. If Distributor
fails to take these steps in a timely and adequate manner, USC may
take them in its own Distributor's name and at Distributor's expense.
f. Limitation. Distributor will have no confidentiality obligation
with respect to any portion of the Information that (i) Distributor
independently knew or developed before receiving the Products or
Information from USC, (ii) Distributor lawfully obtained from a
third party under no obligation of confidentiality or (iii) became
available to the public other than as a result of an act or omission
of Distributor or any of its employees or customers. Under any of
these circumstances, Distributor will notify USC at least 30 days
before disclosing such portion of the Information to any other
person.
10. MARKS
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a. Ownership. All trademarks, service marks, trade names, logos or
other words or symbols identifying the Products of USC's business
(the "Marks") are and will remain the exclusive property of USC or
its licensors, whether or not specifically recognized or perfected
under the laws of the Territory. Distributor will not take any
action that jeopardizes USC's or its licensors' proprietary rights
or acquire any right in the Marks, except the limited use rights
specified in paragraph 10(b). Distributor will not register,
directly or indirectly, any trademark, service xxxx, trade name,
copyright, company name or other proprietary or commercial right
which is identical or confusingly similar to the Marks or which
constitute translations thereof into the language(s) spoken within
the Territory. Upon USC's request, Distributor will execute the
instruments that may be appropriate to register, maintain or renew
the registration of the Marks in USC's or its licensor's name within
the Territory.
b. Use. Distributor will use the Marks exclusively to advertise and
promote the Products within the Territory. All advertisements and
promotional materials will (i) clearly identify USC or its licensors
as the owner of the Marks, (ii) conform to USC's then-current
trademark and logo guidelines and (iii) otherwise comply with any
local notice or marking requirement contemplated under the laws of
the Territory. Before publishing or disseminating any advertisement
of promotional materials bearing a Xxxx, Distributor will deliver a
sample of the advertisement or promotional materials to USC for prior
written approval. If USC notifies Distributor that the use of the
Marks is inappropriate, Distributor will not publish or otherwise
disseminate the advertisement or promotional materials until they
have been modified to USC's satisfaction.
c. Infringements. Distributor will immediately notify USC if
Distributor learns (i) of any potential infringement of the Marks by
a third party or (ii) that the use of the Marks within the Territory
may infringe the proprietary rights of a third party. USC will
determine the steps to be taken under these circumstances.
Distributor will (i) provide USC with the assistance that USC may
reasonably request and (ii) take no steps on its own without USC's
prior written approval.
11. TERM AND TERMINATION
--------------------
a. Term. This Agreement will become effective, as of the date first
set forth above, upon the later of (i) its execution by USC and
Distributor and (ii) its approval, registration or filing in
accordance with Paragraph 15(a), if applicable. This Agreement will
remain in effect thereafter for an initial period of 24 months,
unless earlier terminated under Paragraph 11(c) or (d) ("Term").
b. Renewal. Upon the expiration of a term specified in Paragraph
11(a), this Agreement will be automatically renewed for successive
periods of 12 months, subject to any governmental approval,
registration, or filing requirement that may be applicable to such
renewal, unless either party gives notice of non-renewal to the other
party at least 60 days before the then-current expiration date, in
which case this Agreement will terminate as of such expiration date.
c. Termination by USC. USC will have just cause to terminate this
Agreement immediately upon notice to Distributor or to refuse to
renew this Agreement, without judicial or administrative notice or
resolution, upon the occurrence of any termination event specified
below or elsewhere in this Agreement.
(1) Breach. Distributor or any of its employees (i) breaches any
obligation under Section 9 or (ii) breaches any other obligation
under this Agreement and fails to cure the breach to USC's
satisfaction within 30 days after USC demands its cure.
(2) Normal Business. Distributor ceases to conduct business in the
normal course, becomes insolvent, enters into suspension of
payments, moratorium, reorganization or bankruptcy, makes a
general assignment for the benefit of creditors, admits in writing
its inability to pay debts as they mature, suffers or permits the
appointment of a receiver for its business or assets, or avails
itself of or becomes subject to any other judicial or
administrative proceeding that relates to insolvency or protection
of creditors' rights.
(3) Ownership or Control. The direct or indirect ownership or
control of Distributor that exists on the effective date of
this Agreement changes in a manner that, in USC's judgment,
may adversely affect USC's rights.
d. Termination by Distributor. Distributor will have just cause to
terminate this Agreement immediately upon notice to USC or to refuse
to renew this Agreement, without judicial or administrative notice or
resolution, upon the occurrence of any termination event specified
below or elsewhere in this Agreement.
(1) Breach. USC or any of its employees breaches any obligation
under this Agreement and fails to cure the breach to Distributor's
satisfaction within 30 days after Distributor demands its cure.
(2) Normal Business. USC ceases to conduct business in the normal
course, becomes insolvent, enters into suspension of payments,
moratorium, reorganization or bankruptcy, makes a general
assignment for the benefit of creditors, admits in writing its
inability to pay debts as they mature, suffers or permits the
appointment of a receiver for its business or assets, or
avails itself of or becomes subject to any other judicial or
administrative proceeding that relates to insolvency or protection
of creditors rights.
12. CONSEQUENCES OF TERMINATION
---------------------------
a. Termination Obligations. Upon the expiration or termination of this
Agreement, all rights granted to Distributor hereunder will immediately
cease, and Distributor will (i) promptly comply with the termination
obligations specified below and (ii) otherwise cooperate with USC to
terminate relations in an orderly manner.
(1) Payments. Distributor will pay USC all due and outstanding
amounts, as well as any amount that has not become due, the due
date of which will be automatically accelerated to the date of
expiration or termination of this Agreement.
(2) Products. Distributor will purge from its computer systems,
storage media and other files and, at USC's option, destroy or
deliver to USC or its designee all Products within Distributor's
possession or control, including the Demonstration Products and
all source code of the Products.
(3) Materials. Distributor will, at USC's option, destroy or deliver
to USC or its designee all items within Distributor's possession
or control that contain any Information or bear a Xxxx, except as
otherwise contemplated under Paragraph 12(b).
(4) Software Agreements. Distributor will, at USC's request, assign
or perfect the assignment to USC or its designee of all Software
Agreements executed with customers and notify these customers of
such assignment.
(5) Affidavit. Distributor will deliver to USC a notarized affidavit
which certifies that Distributor has complied with all of its
termination obligations contemplated under this Agreement.
b. Maintenance Agreements. Upon the expiration or termination of this
agreement, Distributor will, at USC's request assign to USC or its
designee, in whole or in part, the Maintenance Agreements then
in effect with customers that USC may designate. USC will pay
Distributor the accrued and unpaid charges under these assigned
Maintenance Agreements, but only if Distributor certifies that (i) it
has performed the services to which the charges relate and (ii) the
unpaid charges are collectable from the customers. Distributor will
refund such payment to USC or its designee if the customer fails
to pay these charges within 90 days after the assignment of the
Maintenance Agreement. If USC elects not to accept a full assignment
of all Maintenance Agreements, Distributor may retain the items of
information that USC deems appropriate for use exclusively in
fulfilling Distributor's existing obligations under the unassigned
Maintenance Agreements. Upon fulfilling these obligations,
Distributor will, at USC's option, destroy or deliver such items to
USC or its designee.
c. Disclaimer. Upon the expiration of this Agreement or its
termination in accordance with Paragraph 11(c) or 11(d)(2),
Distributor will not be entitled under local law or otherwise to
receive any payment from USC, whether for actual, consequential,
indirect, special or incidental damages, costs or expenses, whether
foreseeable or unforeseeable (including, but not limited to, labor
claims and loss of profits, investments or good will), any right to
which Distributor hereby waives and disclaims.
d. Survival. The provisions of Sections 8, 9, 10, 12, 14, 16, 24, and
25 will survive the expiration or termination of this Agreement.
13. INSPECTION
----------
During the Term of this Agreement and for 1 year after its expiration
or termination, USC or its representatives may, upon prior notice to
Distributor, inspect the agreements, business records, computer processors,
equipment and facilities of Distributor during normal working hours to
verify Distributor's compliance with this Agreement. While conducting these
inspections, USC and its representatives will be entitled to copy any item
that Distributor may possess in violation of this Agreement.
14. U.S. EXPORT RESTRICTIONS
-------------------------
Distributor acknowledges that the Products and all related technical
information, documents and materials are subject to export controls under
the U.S. Export Administration Regulations. Distributor will (i) comply
strictly with all legal requirements established under these controls, (ii)
cooperate fully with USC in any official or unofficial audit or inspection
that relates to these controls and (iii) not export, re-export, divert,
transfer or disclose, directly or indirectly, any Product or related
technical information, document or material or direct products thereof to
any of the following countries or to any national or resident thereof,
unless Distributor has obtained the prior written authorization of USC and
the U.S Commerce Department and any relevant local governmental authority:
Afghanistan, Albania, Bulgaria, Cambodia, Cuba, Czech and Slovak Federative
Republic, Iran, Iraq, Laos, Libya, Mongolia, North Korea, People's Republic
of China, Poland, Romania, Syria, Vietnam and the jurisdiction that formerly
comprise the Union of Soviet Socialist Republics (including Estonia, Latvia
and Lithuania) and the South African Military and Police Authorities. Upon
notice to Distributor, USC may modify this list to conform to changes in the
U.S. Export Control Regulations.
15. COMPLIANCE WITH LAWS
--------------------
a. Local Compliance. Distributor will, at its expense, obtain and
maintain the governmental authorizations, registrations and fillings
that may be required under the laws of the Territory to execute or
perform this Agreement. Distributor will otherwise comply with all
laws, regulations and other legal requirements within the Territory
that apply to this Agreement, including tax and foreign exchange
legislation. Distributor will promptly notify USC of any change in
these laws, regulations or other legal requirements that may affect
the importation of the Products or Distributor's performance of this
Agreement.
b. Unlawful Payments. Distributor will not use any payment or other
benefit derived from USC to offer, promise or pay any money, gift or
any other thing of value to any person for the purpose of influencing
official actions or decisions affecting this Agreement, while knowing
or having reason to know that any portion of this money, gift or
thing will, directly or indirectly, be given, offered or promised
to (i) an employee, officer or other person acting in an official
capacity for any government or its instrumentalities or (ii) any
political party, party official or candidate for political office.
c. Assurances. Distributor will provide USC with the assurances and
official documents that USC periodically may request to verify
Distributor's compliance with this Section.
16. INDEMNITY
---------
Distributor will indemnify USC against any damage, loss, liability or
expense (including lawyers' fees) that USC may incur (i) with respect to
any negligent act or omission by, or willful misconduct of, Distributor's
employees or agents or (ii) as a result of (a) any modification or amendment
of the prescribed terms of the Software Agreement that USC did not
specifically approve, (b) any warranty, condition, representation, indemnity
or guarantee granted by Distributor or provided by law, with respect to the
Products in addition to or in lieu of the limited warranties specified in
Section 6,(c) any omission or inaccuracy in Distributor's advertisements
and promotional materials that relate to the Products, (d) any modification
of or addition to the Products not provided or approved by USC or (e)
Distributor's failure to comply with Section 14 or Section 15. This Section
will not be construed to limit or exclude any other claims or remedies which
USC may assert under this Agreement or by law.
17. INDEPENDENT PARTIES
-------------------
USC and Distributor are independent parties. Nothing in this Agreement
will be construed to make Distributor an agent, employee, franchisee, joint
venture, partner or legal representative of USC. Except as otherwise
provided in this Agreement, Distributor will neither have nor represent
itself to have any authority to act on USC's behalf.
18. FORCE MAJEURE
-------------
Neither party will be liable for any failure or delay in performing an
obligation under this Agreement that is due to causes beyond its reasonable
control, such as natural catastrophes, governmental acts or omissions, laws
or regulations, labor strikes or difficulties, transportation stoppages or
slowdowns or the inability to procure parts or materials. These causes will
not excuse Distributor from paying accrued amounts due to USC through any
available lawful means acceptable to USC. If any of these causes continue
to prevent or delay performance for more than 180 days, USC may terminate
this Agreement, effective immediately upon notice to Distributor.
19. NOTICES
-------
Any notice, approval or other communication required or permitted under
this Agreement will be given in writing and will be sent by telex, telefax,
courier or registered airmail, postage prepaid to the address specified
below or to any other address that may be designated by prior notice. Any
notice or other communication delivered by telex or telefax will be
deemed to have been received on the day it is sent. Any notice or other
communication sent by courier will be deemed to have been received on the
3rd day after its date of positing. Any notice or other communication sent
by registered airmail will be deemed to have been received on the 7th
business day after its date of posting.
If to USC :
uniView Softgen Corporation
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 0000, Xxxxxx, Xxxxx, XXX 00000
If to Distributor :
Korea Computer, Inc.
000-00 Xxxxxxxxxxx-Xxxx,
Xxxxxxx-Xx, Xxxxx, Xxxxx 156-010
20. ASSIGNMENT
----------
Distributor may not assign, delegate, sub-contract or otherwise transfer
this Agreement or any of its rights or obligations without USC's prior
written approval. Any attempt to do so without USC's approval will be void.
USC may assign this Agreement or any of its rights or obligations upon
notice to Distributor, (i) to a related company or (ii) to an unrelated
company pursuant to a sale, merger or other consolidation of USC or any of
its operating divisions.
21. WAIVER, AMENDMENT, MODIFICATION
-------------------------------
Except as otherwise provided above, any waiver, amendment or other
modification of this Agreement will not be effective unless in writing
and signed by the party against whom enforcement is sought.
22. SEVERABILITY
------------
If any provision of this Agreement is held to be unenforceable, in whole
or in part, such holding will not affect the validity of the other
provisions of this Agreement, unless USC deems the unenforceable provision
to be essential to this Agreement, in which case USC may terminate this
Agreement, effective immediately upon notice to Distributor.
23. INTERPRETATION
--------------
The terms that are defined in this Agreement nay be used in the singular
or the plural, as the context requires. "Days" means calendar days, unless
otherwise specified. "Person" means an individual, partnership, company,
corporation or other legal entity, as the context requires. "Section"
means all provisions under the numerical heading. "Paragraph" means all
provisions under the alphabetical heading. "Agreement" means this Agreement
and all of its Exhibits. Headings are intended only for reference purposes.
24. GOVERNING LAW
-------------
This agreement will be governed by and interpreted in accordance with
the laws of the State of Texas, U.S.A., excluding its conflict of law
principles. USC and Distributor exclude the United Nations Convention on
Contracts for the International Sale of Goods from this Agreement and any
transaction between them that may be implemented in connection with this
Agreement.
25. ENTIRE AGREEMENT
----------------
This agreement and its Exhibits constitute the complete and entire
statement of all terms, conditions and representations of the agreement
between USC and Distributor with respect to its subject matter.
26. NON-SOLICITATION
----------------
During the Term of this Agreement and for a period of one (1) year
thereafter, both parties agree not to hire, solicit, nor attempt to solicit
the services of any employee or key subcontractor of the other party or
affiliate of the other party without the prior written consent of that
party. If this provision is violated, the violating party shall pay the
other party liquidated damages equal to one hundred fifty percent (150%) of
the solicited person's annual compensation.
27. COUNTERPARTS AND FASCSIMILE SIGNATURES
--------------------------------------
This Agreement may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by facsimile signature, such signature shall
create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect
as if such facsimile signature page were an original thereof.
IN WITNESS WHEREOF, USC and Distributor cause this Agreement to be
executed by their duly authorized representatives identified below.
UNIVIEW SOFTGEN CORPORATION KOREA COMPUTER, INC.
(USC) (Distributor)
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxx
Name: Xxxx X. Xxxxxx Name: Xxxxxx Xxx
Title: Executive Vice President Title: President & CEO
